Free Speech Wins (Again) at the Supreme Court
David French writes:
… Given existing First Amendment jurisprudence, there would have been a constitutional earthquake if SCOTUS hadn’t ruled for Tam. The Court has long held that the Constitution protects all but the narrowest categories of speech. Yet time and again, governments (including colleges) have tried to regulate “offensive” speech. Time and again, SCOTUS has defended free expression. Today was no exception. Writing for a unanimous Court, Justice Alito noted that the Patent and Trademark Office was essentially arguing that “the Government has an interest in preventing speech expressing ideas that offend.” His response was decisive:
[A]s we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
Quick, someone alert the snowflakes shouting down speeches on campus or rushing stages in New York. There is no constitutional exception for so-called “hate speech.”
Indeed, governments are under an obligation to protect controversial expression. Every justice agrees. The ruling is worth celebrating, but when law and culture diverge, culture tends to win. The law protects free speech as strongly as it ever has. The culture, however … (read more)
Source: National Review
In two First Amendment rulings released this week, the justices argue they’re saving would-be censors from themselves.
Matt Ford reports: The U.S. Supreme Court handed down two notable victories for free-speech advocates on Monday as it nears the end of its current term. The two First Amendment cases came to the Court from starkly different circumstances, but the justices emphasized a similar theme in both rulings: Beware what the free-speech restrictions of today could be used to justify tomorrow.
In the first case, Matal v. Tam, the Court sided with an Asian-American rock band in Oregon named The Slants in a dispute with the U.S. Patent and Trademark Office. The PTO had denied band member Simon Tam’s application to register the group’s name as a trademark, citing a provision in federal law that prohibits the office from recognizing those that “disparage” or “bring … into contempt or disrepute” any “persons, living or dead.” Read the rest of this entry »
You didn’t give these clowns power. They just grabbed it.
Glenn Harlan Reynolds writes: Watching the ongoing clown show in Washington, Americans can be forgiven for asking themselves, “Why did we give this bunch of clowns so very much power over our nation and our lives?”
Well, don’t feel so bad, voters. Because you didn’t actually give them that much power. They just took it. That’s the thesis of Columbia Law Professor Philip Hamburger’s new book, The Administrative Threat, a short, punchy followup to his magisterial Is Administrative Law Unlawful? Both deal with the extraordinary — and illegitimate — power that administrative agencies have assumed in American life.
Hamburger explains that the prerogative powers once exercised by English kings, until they were circumscribed after a resulting civil war, have now been reinvented and lodged in administrative agencies, even though the United States Constitution was drafted specifically to prevent just such abuses. But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.
As Hamburger writes, “Administrative power also evades many of the Constitution’s procedures, including both its legislative and judicial processes. Administrative power thereby sidesteps most of the Constitution’s procedural freedoms. Administrative power is thus all about the evasion of governance through law, including an evasion of constitutional processes and procedural rights.” Read the rest of this entry »
What is the least diverse place in America? It’s the institution that most actively seeks racial, ethnic, gender, and cultural diversity: the college campus! Colleges want students to look different, but think the same. Charlie Kirk, founder of Turning Point USA, explains.
This video with Charlie Kirk is part of an exciting partnership between PragerU and Turning Point USA that will include videos with other young conservatives like Ben Shapiro, Antonia Okafor, Matt Walsh, and more. Visit here to learn more.
[VIDEO] Should a Creative Professional Have the Freedom to Decline Work that Conflicts with their Conscience or Beliefs?Posted: March 13, 2017
Everyone agreed that a creative professional should have the foundational freedom to decline work that conflicts with their conscience or beliefs. But, when faced with a situation that goes against current cultural expectations, like a Christian photographer declining to promote a same-sex wedding, the gears start grinding. If a law that forces someone to promote something against their beliefs is so laughable, so unimaginable…then why is it so difficult to extend the same freedom to a Christian creative professional?
‘This case is about crushing dissent. In a free America, people with differing beliefs must have room to coexist’
Kelsey Harkness reports: An appellate court unanimously ruled against Barronelle Stutzman, the Washington florist who declined to make flower arrangements for a same-sex couple’s wedding because of her religious beliefs.
“It’s wrong for the state to force any citizen to support a particular view about marriage or anything else against their will. Freedom of speech and religion aren’t subject to the whim of a majority; they are constitutional guarantees.”
At National Review, David French writes:
…But this is the sexual revolution we’re talking about, so it’s necessary for the court to make a statement declaring the government’s allegiances. Indeed, late in the opinion its author gave the game away. Picking up on the absurd and historically ignorant comparison of the modern gay-rights movement with the civil-rights movement in the segregationist South, the judge wrote, “This case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.”
“That’s it right there: the state religion. It reserves for itself the exclusive ability to name, define, and eradicate “social evils,” and heaven help the individual citizen who disagrees. There is no need to show a traditional, legally recognized harm.”
What are they talking about? The federal government took the extraordinary step of passing the civil-rights acts to give black Americans access not just to sandwiches but to hotel rooms, jobs, voting rights, and all the other things they were systematically denied as southern states and communities continually and oppressively imposed the “badges and incidents of slavery” on them. In the pre-civil-rights South, black citizens often had trouble finding places to eat or sleep. They couldn’t vote. They couldn’t get justice in state courts. Civil rights was about access, at its most elementary and necessary level.
But that’s not the case any longer. The gay couple in this case had no trouble finding flowers. Stutzman even recommended other florists who would have been happy to help them celebrate their wedding. So, given the absence of any real harm, the court said that the state had a compelling state interest in punishing the “independent social evil” of discrimination toward a “broader societal purpose: eradicating barriers to equal treatment of all citizens in the commercial marketplace.”
That’s it right there: the state religion. It reserves for itself the exclusive ability to name, define, and eradicate “social evils,” and heaven help the individual citizen who disagrees. There is no need to show a traditional, legally recognized harm. There is no need to prove lack of access to alternative artistic expressions. There is only the need to show that the business owner won’t use her unique talents to help celebrate the sexual revolution.
Finally, if you doubt the court’s malice, look only to its last ruling — that Stutzman can be held personally liable for her allegedly discriminatory act. In other words, the court is willing to pierce the corporate veil to impose individual liability even in the absence of the traditional justifications for that drastic step. Stutzman didn’t commit fraud. She didn’t commingle her personal and corporate funds. She kept her private and professional affairs separate. But she still faces personal financial ruin.
Social-justice warriors will no doubt celebrate the breaking of another egg for their cultural omelet. … (read more)
The ruling, issued on Thursday by Washington’s nine Supreme Court justices, stated that in refusing to provide services for the same-sex couple’s wedding, Stutzman, owner of Arlene’s Flowers, violated the state’s anti-discrimination law.
“The state of Washington bars discrimination in public accommodations on the basis of sexual orientation. Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation,” the ruling reads.
“We therefore hold that the conduct for which Stutzman was cited and fined in this case—refusing her commercially marketed wedding floral services to [Robert] Ingersoll and [Curt] Freed because theirs would be a same-sex wedding—constitutes sexual orientation discrimination under the [Washington Law Against Discrimination].” Read the rest of this entry »
The criminal government leaker with the hero complex is now living in Moscow under a 2013 asylum deal granted after Snowden gave the media troves of classified documents that revealed the extent of the U.S. surveillance state.
“If the Russian or Chinese governments have access to this information, American troops will be at greater risk in any future conflict.”
— Committee report
“Since Snowden’s arrival in Moscow, he has had, and continues to have, contact with Russian intelligence services,” the House Intelligence Committee said in a report on the Snowden leaks released Thursday.
“Most of the material he stole had nothing to do with Americans’ privacy. Its compromise has been of great value to America’s adversaries and those who mean to do America harm.”
— House Intelligence ranking member Adam Schiff
The declassified report, which is heavily redacted, did not offer proof of its serious accusation. It follows the committee’s release in September of an executive summary of the then-classified document.
House Intelligence Chairman Devin Nunes (R-Calif.) said in a statement that the report offers “a fuller account of Edward Snowden’s crimes and the reckless disregard he has shown for U.S. national security, including the safety of American servicemen and women.”
The document casts Snowden as a dishonest miscreant and attempts to refute the portrayal of him as a duty-minded whistleblower.
The House panel’s report says there is “no evidence that Snowden took any official effort to express concerns about U.S. intelligence activities … to any oversight officials within the U.S. government, despite numerous avenues for him to do so.”
Snowden and his defenders claim that he feared reprisal and have pointed to numerous instances of the intelligence community retaliating against employees who complain about secret programs. Read the rest of this entry »
‘The threat to the First Amendment came from the Democratic side more,’ he says, arguing that journalists viewed a Democratic plank “overly charitably” as campaign finance reform.
Paul Bond reports: When it comes to politicians trampling free speech and free press, Time Warner CEO Jeffrey Bewkes said Tuesday that he doesn’t fear president-elect Donald Trump as much as he does his rivals on the other side of the aisle.
“The threat to the First Amendment came from the Democratic side,” Bewkes said during a conversation with Business Insider CEO Henry Blodget at a conference in New York in a session that was webcast. Read the rest of this entry »
“It used to be college was a place for open dialogue and open debate,” says Says Cliff Maloney Jr., Executive Director at Young Americans for Liberty (YAL). “But now we find free speech zones, we find unconstitutional policies. And thats our goal with…our national fight for free speech campaign. How do we tackle them? How do we change them and reform them?”
YAL, the non-profit pro-liberty organization that emerged from the 2008 Ron Paul campaign, encourages college students to understand and exercise their constitutional rights. “We try to reach kids with these ideas. We do that through activism. Real events–which college campuses are supposed to be all about–taking ideas to students and having these discussions.” Since it’s founding, YAL has increased chapters from 100 to over 700 nationwide. Read the rest of this entry »
Hillsdale College President Larry P. Arnn, National Review Senior Editor Jonah Goldberg, and Professor of Political Science John Marini discuss presidential candidate Donald J. Trump‘s role in conservatism in America.
Hillsdale College’s annual Constitution Day event celebrates the signing of the United States Constitution with lectures and panel discussions about the history of the Constitution and constitutional issues facing the nation today.
Paul Bedard writes: A key Federal Election Commission Republican warned Wednesday that liberals are moving aggressively to “amend the First Amendment” so that conservatives are silenced and businesses are chased “out of the democracy.”
“The general tenor of the Left in American politics today has certainly spoken out against First Amendment rights. It has been a reversal over the last 50 years.”
In some the toughest criticism leveled at Democrats, Commissioner Lee E. Goodman said that the attack started once the Tea Party changed American politics in the 2010 election and now dominates the politics of the Left.
“The general tenor of the Left in American politics today has certainly spoken out against First Amendment rights. It has been a reversal over the last 50 years,” he added, citing FDR Democrats who defended socialists and communists.
“I have been concerned about bias both in how complaints are brought to the commission just like in the way, the lobbying campaign for Lois Lerner. It was all one sided. But generally I try to make my First Amendment case by pointing out that we have to impact liberal and conservative speech in the same way.”
“But I have been concerned from time to time about every time a conservative group comes up, somehow, some way, exceptions and distinctions are made and this is the problem giving government the power to regulate speech in the first instance because ultimately human beings have to make that decision.”
Peter J. Wallison writes: One jarring note in Hillary Clinton’s acceptance speech at the Democratic National Convention was her statement that she would press for a constitutional amendment to overturn Citizens United v. Federal Elections Commission.
“The New York Times is a corporation, so this language would prohibit the Times from editorializing in favor of or against either Ms. Clinton or Donald Trump. Moreover, it might shut down blogs, or firms like Facebook or Twitter, that are corporate vehicles for the expression of opinions about candidates by others.”
This 2009 Supreme Court case held that corporations had the same rights as individuals to make statements for or against the election of a candidate for public office. Particularly difficult to understand was her linking Citizens United to the fact that our economy is not functioning well for many Americans.
“Clearly, closing down newspapers that publish editorials wouldn’t be satisfactory to many Americans, and if extended to other corporate opinion forums would be highly unpopular among the American people. How, then, could the language be modified to allow the New York Times and other corporations to express their views and still overturn Citizens United?”
Taking the last point first, what could be the link between Citizens United and a poorly functioning economy? It’s likely that Ms. Clinton wanted her listeners to infer that corporate power, expressed through independent expenditures—presumably contributions to superpacs or other hidden sources—had distorted the public’s will for the benefit of powerful private parties.
This is a peculiar claim to make after almost eight years of the Obama presidency, in which the most significant government actions—the Dodd-Frank Act, ObamaCare, and various tax increases on corporations and wealthy individuals—could hardly be said to favor corporations or business interests generally. It is also peculiar in light of a recent Wall Street Journal report that hedge fund contributions to Clinton superpacs have outraised those to Trump superpacs by a ratio of more than 2000-to-1 ($46.5 million to $19,000).
But leaving aside these anomalies, what is it about Citizens United that has stirred Ms. Clinton to propose something as drastic as a constitutional amendment, especially one affecting the First Amendment’s right to free speech?
Many of Ms. Clinton’s listeners who cheered her idea probably believe that their right to free speech would not be affected by overturning Citizens United. Of course, the language of the amendment would be determinative, but let’s assume it is as simple as adding new language at the end of the First Amendment as it now reads. Read the rest of this entry »
Melissa Click confronted a student photographer and a student videographer during the protests, calling for ‘muscle’ to help remove the videographer, Mark Schierbecker, from the protest area. Schierbecker’s video of his run-in with Clink went viral, and he filed a complaint with university police.
KANSAS CITY, Mo. (AP) — Jim Suhr reports: A University of Missouri assistant communications professor was charged Monday with misdemeanor assault linked to her run-in with student journalists during campus protests last November, drawing a curator’s renewed calls for her ouster.
“I’m willing to listen to the possibility of other job actions involving her as long as they’re serious. The whole situation surrounding this has been stonewalling and an attempt to run out the clock by the university.”
— Board member, David Steelman
Melissa Click, 45, faces up to 15 days in jail if convicted of the charge filed by Columbia city prosecutor Steve Richey, who retires next month and did not return messages seeking comment Monday.
Click confronted a student photographer and a student videographer during the protests, calling for “muscle” to help remove the videographer, Mark Schierbecker, from the protest area. Schierbecker’s video of his run-in with Clink went viral, and he filed a complaint with university police.
That day’s demonstrations came after the president of the four-campus University of Missouri system and the Columbia campus’ chancellor resigned amid protests over what some saw as indifference to racial issues.
Days after the confrontations, Click said publicly she regretted her actions, and that she apologized to Schierbecker and all journalists and the university community for detracting from the students’ efforts to improve the racial climate on the Columbia campus. Read the rest of this entry »
“There is a limit to ‘bait-and-switch’ techniques that promise academic freedom and legal equality but deliver authoritarianism and selective censorship.”
On public college and universities, the First Amendment applies, thus giving students, faculty members, and everyone else protection against official censorship or punishment for saying things that some people don’t want said. A splendid example of that was brought to a conclusion earlier this year at Valdosta State University, where the school’s president went on a vendetta against a student who criticized his plans for a new parking structure – and was clobbered in court. (I discussed that case here.)
But the First Amendment does not apply to private colleges and universities because they don’t involve governmental action. Oddly, while all colleges that accept federal student aid money must abide by a vast host of regulations, the Supreme Court ruled in Rendell-Baker v. Kohn that acceptance of such money does not bring them under the umbrella of the First Amendment.
At private colleges, the protection for freedom of speech has to be found (at least in most states) in the implicit contract the school enters into with each incoming student. Ordinarily, the school holds itself out as guaranteeing certain things about itself and life on campus in its handbook and other materials. If school officials act in ways that depart significantly from the reasonable expectations it created, then the college can be held liable. Read the rest of this entry »
Political satirist Ami Horowitz tests the waters at Yale University to see if today’s Ivy League students would actually sign a petition to repeal the first amendment.
“The…idea that if you just let people talk, it will be this pit of racist pandemonium…is sort of childish and it oversimplifies. But it is a great justification for having a lot of power over speech,” says Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE).
When it was revealed in 2013 that the IRS had targeted conservative groups for exercising their First Amendment rights, President Obama correctly called the policy “inexcusable” and pledged accountability. He even fired the then-acting IRS commissioner because he said it was necessary to have “new leadership that can help restore confidence going forward.”
“A taxpayer would never get away with treating an IRS audit the way that IRS officials have treated the congressional investigation.”
Unfortunately, Commissioner Koskinen, who took over in the wake of the IRS targeting scandal, has failed the American people by frustrating Congress’s attempts to ascertain the truth. A taxpayer would never get away with treating an IRS audit the way that IRS officials have treated the congressional investigation. Civil officers like Mr. Koskinen have historically been held to a higher standard than private citizens because they have fiduciary obligations to the public. The IRS and Mr. Koskinen have breached these basic fiduciary duties:
• Destruction of evidence. Lois Lerner, at the time the director of the IRS’s exempt-organizations unit, invoked the Fifth Amendment on May 22, 2013, when appearing before Congress; her refusal to testify put a premium on obtaining and reviewing her email communications. On the same day the IRS’s chief technology officer issued a preservation order that instructed IRS employees “not to destroy/wipe/reuse any of the existing backup tapes for email, or archiving of other information from IRS personal computers.”
“John Koskinen has violated the public trust, breached his fiduciary obligations and demonstrated his unfitness to serve. Mr. President, it’s time for Commissioner Koskinen to go. If you don’t act, we will.”
Several weeks later, on Aug. 2, the House Oversight Committee issued its first subpoena for IRS documents, including all of Ms. Lerner’s emails. On Feb. 2, 2014, Kate Duval, the IRS commissioner’s counsel, identified a gap in the Lerner emails that were being collected. Days later, Ms. Duval learned that the gap had been caused in 2011 when the hard drive of Ms. Lerner’s computer crashed.
Despite all this—an internal IRS preservation order, a congressional subpoena, and knowledge about Ms. Lerner’s hard-drive and email problems—the Treasury inspector general for tax administration discovered that the agency on March 4, 2014, erased 422 backup tapes containing as many as 24,000 emails. (Congress learned of the discovery only last month.)
Ms. Duval has since left the IRS and now works at the State Department, where she is responsible for vetting Hillary Clinton’s emails sought by congressional investigations of the Benghazi attacks.
• Failure to inform Congress. Mr. Koskinen was made aware of the problems associated with Ms. Lerner’s emails the same month Ms. Duval discovered the gap. Yet the IRS withheld the information from Congress for four months, until June 13, 2014, when the agency used a Friday news dump to admit—on page seven of the third attachment to a letter sent to the Senate Finance Committee—that it had lost many of Ms. Lerner’s emails. Read the rest of this entry »
Why Words Matter For Defending Freedom
Frank J. Rocca writes: In a free society, communication is a fundamental necessity if citizens are to guard against encroachments upon their freedom. But over the past hundred years, and especially in recent decades, political philosophers and their pragmatic goons, the politicians, have often deliberately if gradually subverted the meanings of certain key words in our language that are vital to discourse.
“The real meaning of freedom is the lack of restriction; therefore, a ‘freedom’ that gives something to someone cannot exist.”
They do this for the express purpose of changing the understanding of those concepts, and thus to fool people into believing what they want people to believe, not the truth, but a semblance of it, which is wholly or partially false.
“We can’t talk to each other if the words we’re using mean different things.”
The disintegration of language is sometimes treated as a curiosity or overlooked. But the danger of this corruption is serious, because language must be stable to ensure the exchange of comprehensible ideas.
“Freedom from prejudice does not exist, either, because such ‘freedom’ restricts the right of people to think or feel however they wish, regardless of others’ feelings. So long as no one acts on his or her prejudice by violating another person’s rights, there can be no violation of anyone’s freedom.”
Politicians gladly use corrupt language to confuse the truth, enabling them to promote ideas and ultimately to enact laws that would be otherwise unpalatable to voters if they were understood. Consequently, taxes become “contributions” and illegal aliens become “undocumented immigrants” or “new Americans.”
“Franklin Delano Roosevelt arrogantly proclaimed and presumed to guarantee to Americans what he called the Four Freedoms: freedom of speech and expression, freedom of religion and worship, freedom from want, and freedom from fear.”
But power players must corrupt language gradually so alert citizens who enjoy truth more than anything do not notice too much. The more important the concept, the greater the subtlety of its corruption.
Indeed, the corruption of the most vital concepts must be done with such sly stealth as to nearly unnoticed, thus sowing confusion into the debate and encouraging needless time-wasting arguing over fundamentals. In this way, actual changes to society can be made apace without objection because the changes will go almost unnoticed.
“The first two were already and continue to be guaranteed, not by Roosevelt, but by our founding documents, The Declaration of Independence, U.S. Constitution, and the Bill of Rights. Together these constitute the irrevocable guarantee that our freedoms, as individuals, are unalienable, because they were not given to us by government but by the very act of our creation as human beings.”
Corrupting the Meaning of Freedom
The most damaging of these conceptual changes is the corruption of the term “freedom.” Clearly and simply defined, freedom and liberty mean the lack of encumbrance. In a free society, the greatest encumbrance is the power to restrict freedom, which only government can do. Read the rest of this entry »
Nearly three quarters of Americans believe the news media reports with an intentional bias, according to a new survey.
“These are discouraging results for those of us who have spent our careers in journalism. In 23 years in newsrooms, I saw consistent and concerted efforts to get stories right. Clearly, the public’s not convinced.”
— Ken Paulson, president of the First Amendment Center, in an op-ed for USA Today
The 2015 State of the First Amendment Survey, conducted by the First Amendment Center and USA Today, was released Friday…
Other findings in the survey:
• Only 19 percent of Americans say the First Amendment goes “too far” in the rights that it guarantees. Last year, 38 percent said it went too far, meaning support for the First Amendment has grown.
• 38 percent agree that business owners should be required to provide services to same-sex couples, a 14-point drop from 2013, when the question was first asked. Read the rest of this entry »
“There’s no justification for violence. But…”
“I’m a First Amendment absolutist. But…”
“You have every right to do what you did. But…”
Erik Wemple writes: Though perhaps not verbatim, those are the sentiments that have spilled from cable airwaves — and, for that matter, non-cable airwaves — in the days since Sunday’s violent incident in Garland, Texas. Two gunmen were shot dead by a police officer as they attempted to mount a terrorist attack on a “Draw Muhammad” cartoon contest — an event whose by-product is offensive to many Muslims. The Islamic State terrorist group claimed responsibility for targeting the contest, which was organized by Pamela Geller of the American Freedom Defense Initiative (AFDI).
“And who’s being treated as the public enemy on cable? The woman who organized a cartoon contest.”
Authorities are investigating ISIS’s claim of responsibility; they’re checking the electronic communication histories of the attackers, Elton Simpson and Nadir Soofi; the White House has called the episode an “attempted terrorist attack.”
“This is problematic to me, because I wonder whether this group that held this event down there to basically disparage and make fun of the prophet Mohammed doesn’t in some way cause these events.”
— MSNBC’s Chris Matthews
And who’s being treated as the public enemy on cable? The woman who organized a cartoon contest.
MSNBC’s Chris Matthews, in speaking with a guest: “This is problematic to me, because I wonder whether this group that held this event down there to basically disparage and make fun of the prophet Mohammed doesn’t in some way cause these events. Well, not the word ‘causing’ — how about provoking, how about taunting, how about daring? How do you see the causality factor here?” (Taunting is a form of expression)
“To her enduring credit, Fox News’s Megyn Kelly has been screaming all week about the folly of the ‘too-provocative’ crowd.”
Donald Trump on “Fox & Friends”: “What is she doing drawing Mohammed?…What are they doing drawing Muhammad. Isn’t there something else they can draw?…I’m the one who believes in free speech probably more than she does, but what’s the purpose of this?” (Must protected speech have a Trump-approved purpose?)
“The American media folded into a crouch of cowardice and rationalization. The Associated Press’s statement said it would ‘refrain from moving deliberately provocative images.’”
Comedy Central’s Larry Wilmore: “You know another thing that’s horrific, Pamela Geller? Intentionally putting innocent, unarmed security guards in danger so you can make some bull[—-] free speech argument.” (A bad moment: When comedians are rating others’ free-speech arguments)
“Nothing justifies the attack, the violent attack. There is no
— CNN’s Jake Tapper to Geller
“It’s one thing for someone to stand up for the First Amendment and put his own you-know-what on the line, but…”
— Fox News’s Greta Van Susteren
Fox News host Martha MacCallum to Geller: “I absolutely get where you’re coming from. I’m not sure you went about it the right way.” (Let the government decide on the “right way”!)
“A judgment has emerged that preaches compliance with the notion that this particular form of expression means you’re asking for it.”
CNN host Alisyn Camerota to Geller: “And nobody is saying that this warrants the violence that you saw. I mean I haven’t heard anyone in the media saying that it’s okay for gunmen to show up at an event like this. Read the rest of this entry »
Symposium: When strict scrutiny ceased to be strict
At SCOTUSblog, Floyd Abrams writes: The result in the Williams-Yulee case was a difficult one to predict except that it was entirely predictable that the result would be by a deeply divided Court. It is no surprise that it was a five-to-four ruling, and no surprise at all that the jurists on both sides appear to have been irritated and frustrated by the views of those on the Court with whom they differed. The same had been true in Republican Party of Minnesota v. White (2002), the Supreme Court’s last trek into the muddy constitutional waters that required an assessment of First Amendment issues in the context of judicial elections. That case was not only decided by a five-to-four vote, but one of the five Justices — Justice Sandra Day O’Connor — repeatedly announced after her retirement that she regretted her vote.
“Critics of Citizens United can take no solace from yesterday’s decision, since it is rooted in all respects in the difference between judicial elections and all others. If anything, the more the Court focuses on the special and distinct role of judges as opposed to other elected officials, the more firmly it reinforces its earlier ruling as to the latter.”
The unavoidable problem in the case stems from the reality that if judges are to be elected, they must be allowed to campaign for election. Yet, what they say in their campaigns about what they will do as judges may lead people to doubt their open-mindedness as judges.
[Also see – Williams-Yulee v. The Florida Bar: A Disappointing End by Jonathan Keim]
And when they personally raise money, at least from lawyers and potential litigants before them, it may well lead to the perception of indebtedness on their part to their contributors.
“One need not adopt wholesale Justice Scalia’s final thrust at the majority in the case to admire its beauty: ‘The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.’”
The Florida Code of Judicial Conduct sought to strike a compromise, barring judicial candidates from personally soliciting campaign funds, while allowing their campaign committees to solicit funds for them and allowing the candidates to write thank-you notes to contributors. On its face, it was a perfectly reasonable, good faith effort to walk a difficult line. The First Amendment, however, is more demanding than that.
The problem with the ruling begins with an ostensible First Amendment victory. Seven of the nine members of the Court (all but Justices Ruth Bader Ginsburg and Stephen Breyer) concluded that strict scrutiny should apply, a usual predicate for striking one sort or another of government limitation on speech. Read the rest of this entry »
Muslim Facial Hair, Amish Buggies, and Native American Peyote Rituals: This Map Shows Every State With Religious Freedom LawsPosted: April 2, 2015
Dave Johnson and Katy Steinmetz report:The national outcry over Indiana’s Religious Freedom Restoration Act (RFRA) has turned attention towards the 19 states with their own versions of the law and the others that are considering similar measures. The timeline below shows when each state passed legislation, starting with Connecticut in 1993. Click on a state for links to the laws or pending bills.
The fight over RFRAs dates to 1990, when the Supreme Court ruled against an Oregonian named Al Smith, who was a quarter American Indian. He had argued that his use of peyote in a Native American Church ritual—an act that cost him his job—should be protected by the First Amendment. He lost, and the ruling made it easier for the government to place restrictions on the freedom of religion. Read the rest of this entry »
David Weigel: Wrong Side of History? ‘Democrats Are Endorsing Something More Radical Than Voters Are Comfortable With’Posted: April 1, 2015
David Weigel writes:
..it’s now expected for Democrats to denounce RFRAs, just as large corporations are denouncing them. In doing so, all of the critics are on the wrong side of public polling. According to a March edition of the Marist poll, 54 percent of Americans agreed with “allowing First Amendment religious liberty protection or exemptions for faith based organizations and individuals even when it conflicts with government laws.” By a two-point margin, 47-45, even a plurality of Democratic voters agreed with that.
The margins were even larger in opposition to laws that proposed “penalties or fines for individuals who refuse to provide wedding-related services to same sex couples even if their refusal is based on their religious beliefs.” No Democrat is seriously proposing this; the nearest cultural analogue may be the story of Memories Pizza, the Indiana shop whose owner said that he would decline to provide pies to gay weddings, and saw its Yelp! page firebombed with angry comments. (The popularity of delivery pizza at gay wedding ceremonials is well known.) Still, according to Marist, Americans oppose penalties on businesses like Memories by a 65-31 margin. The margin among Democrats: 62-34 against. Read the rest of this entry »
Question: Which American institution—one that prides itself on being open, democratic, and diverse—punishes its members severely for offering unpopular opinions, while it offers them a very narrow, limited worldview?
[Check out Greg Lukianoff‘s book Unlearning Liberty: Campus Censorship and the End of American Debate at Amazon]
Answer: Universities. Once the vanguard of open debate and free speech, colleges have become a place where alternative thinking goes to die. Students who speak out on behalf of traditional American ideals, unfortunately, are often silenced by college administrators. Learn how the college campus, a place that should be an intellectual melting pot, has turned into anything but, violating the rights of those who have alternate opinions.
You’ve Been Served: Foundation for Individual Rights in Education Mails First Amendment Warning to More Than 300 CollegesPosted: September 19, 2014
PHILADELPHIA, Sept. 17, 2014—In a national certified mailing sent today, the Foundation for Individual Rights in Education (FIRE) warns the leaders of more than 300 of our nation’s largest and most prestigious public colleges and universities that they risk First Amendment lawsuits by continuing to maintain speech codes that violate student and faculty rights. The letters are being mailed from the main post office near Independence Hall in Philadelphia today to mark the 227th anniversary of the signing of the U.S. Constitution.
“FIRE prefers to secure students’ and faculty members’ free speech rights by working cooperatively with colleges and universities. However, FIRE will not hesitate to turn to the courts when necessary.”
“58 percent of our nation’s public colleges and universities restrict student and faculty speech with blatantly unconstitutional policies, and 38 percent more enforce policies that are too easily abused to silence campus speech,” said Will Creeley, FIRE’s Director of Legal and Public Advocacy. “In July, FIRE launched our Stand Up For Speech Litigation Project by announcing four lawsuits against institutions that have violated student and faculty First Amendment rights. Now we’re putting public colleges and universities across the country on notice—and inviting them to work with FIRE to fix flawed policies before they’re challenged in court.”
“Throughout our 15 years defending student and faculty rights, FIRE has consistently coordinated successful First Amendment challenges against unconstitutional speech codes.”
Judge Strikes Down Ohio Law Criminalizing False Political Speech: Amicus Curiae Brief Filed on Behalf of the Plaintiff by P.J. O’RourkePosted: September 13, 2014
An Ohio federal judge landed a blow for free-speech advocates on Thursday, striking down a law that gave the state government the right to regulate political speech it deemed false.
Under the law, it was illegal to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” According to U.S. District Court judge Timothy Black’s decision: “We do not want the government (i.e., the Ohio Elections Commission) deciding what is political truth – for fear that the government might persecute those who criticize it. Instead, in a democracy, the voters should decide.”
Then there’s this:
I noted [above] U.S. District Court judge Timothy Black’s ruling yesterday striking down an Ohio law that allowed the state election commission to censor “false” political speech.
The judge’s decision is a good one, but the best reading in the case is an amicus curiae brief filed on behalf of the plaintiff — by none other than right-wing humorist P.J. O’Rourke. “The case concerns amici,” he writes, “because the law at issue undermines the First Amendment’s protection of the serious business of making politics funny.” Read the rest of this entry »
The NYPD has sent out an internal memo that tells officers they aren’t allowed to take action to stop someone from photographing or filming them. This comes a whopping two years after Washington DC’s police chief sent out an almost identical memo.
“A Victory in the War on Photography”
— Glenn Reynolds
According to the New York Daily News, the chief of department’s office sent out the memo to the various command centers across NYC on Wednesday. And the memo doesn’t mince words. Here’s a relevant section:
Members of the public are legally allowed to record police interactions. Intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.
However, while the cameras can keep snapping, this memo doesn’t give license to a free-for-all. As common sense would dictate, photographers and videographers are still prohibited from interfering with police operations…(read more)
[Below, ReasonTV talks with FIRE about challenges to free speech on college campuses]
“Universities’ stubborn refusal to relinquish their speech codes must not be tolerated,” said FIRE President Greg Lukianoff during a press conference.
An OU student’s rights organization, OU Students Defending Students, ran afoul of university administrators because he created T-shirts for the organization that featured a risque phrase “We help get you off”
For now, suits have been filed against Ohio University, Iowa State University, Chicago State University, and Citrus College in California. These universities have all trampled students’ free speech rights, according to FIRE. Read the rest of this entry »
Jonah Goldberg‘s comments remind me that during the heated partisan debates about the IRS harassment scandal, the most basic question was often lost, or not even addressed: Why is the IRS in the business of regulating speech in the first place?
With its enormous police powers, self-protecting bureaucratic instincts, nearly a century of mission creep, pro-government political bias, and vast coercive powers, allowing the IRS to regulate speech is an obvious conflict of interests.
Ted Cruz stands up for citizens’ right to spend money on politics.
For National Review Online, Dustin Siggins writes: What is the right amount of speech to give to citizens in politics? Both major parties are debating this question as the 2014 midterm elections approach.
“…I would ask you, why does a corporation like The New York Times or CBS, or any other media corporation, in Congress’ view, enjoy greater First Amendment rights than individual citizens.”
According to former Supreme Court Justice John Paul Stevens, who told a Senate panel Wednesday that campaign money is not the same as speech, the answer seems to be “a limited amount.” Stevens, who has been critical of his former colleagues on the Court for overturning a number of campaign finance reform measures, was joined by Democrats who went after the Koch brothers for their involvement in the political system.
Enter Senator Ted Cruz (R., Texas), who in about five-and-a-half minutes shattered the entire argument for what Washington considers “campaign finance reform.” His comments turned campaign-finance pieties on their head and made clear why free speech needs to be paramount in the United States.
[Amazon.com has pre-order info on Dustin Siggins‘ upcoming book: America’s Bankrupt Legacy: The Future of the Debt-Paying Generation]
Cruz pointed out how campaign finance reform protects incumbents. Instead of allowing as much speech as possible for the American people, elected officials have engaged in self-preservation at the cost of the First Amendment. To quote the Cato Institute’s Ilya Shapiro from a 2012 appearance in front of a Senate subcommittee, “Let the voters weigh what a donation from this or that plutocrat means to them, rather than — and I say this with all due respect — allowing incumbent politicians to write the rules to benefit themselves.”
“…there are 300 million Americans who have the right to criticize you all day long and twice on Sundays.”
Similarly, Cruz noted that incumbents have “lobbyists and entrenched interests” doing fundraising for them. This is in stark contrast to challengers, who Cruz says “[have] to raise the money.” Read the rest of this entry »
For Commentary Magazine, Seth Mandel writes: A common pattern in American political discourse is for conservatives to accuse liberals of some statist extremism, liberals to insist the complaint has no merit whatsoever, and then when it’s clear conservatives are on to something liberals lament, more in sorrow than in anger, that conservatives had a point but took it way too far. How vindicated conservatives then feel if information comes to light to back up their warnings about the slippery slope of state power.
“I’m not sure how many times the White House and Democratic congressional leadership can hope to get their party to vote for abusive federal power grabs that are openly hostile to public opinion and individual rights.”
The evolution of the Democrats’ deranged attacks on the Koch brothers and political participation in general has followed precisely this pattern. The trickle of mentions of the Kochs turned into a flood, as Democratic Senate Majority Leader Harry Reid became thoroughly incapable of discussing any topic–campaign finance, Ukraine, the minimum wage–without calling out the libertarian philanthropists. He called their participation in the political process “un-American” in an ever-escalating crusade to declare them former people and seek to pressure the judiciary into permitting limitations on free speech rights.
“Schumer has proposed a solution: no need to change the policies to adhere to public opinion if you can just restrict the public’s ability to express that opinion.”
Conservatives warned that high-profile Democrats’ hostility to the First Amendment was liable to result in the curbing of Americans’ constitutional rights. Liberals scoffed. Yet now, the Hill reports, Democrats–who haven’t exactly been models of subtlety, but who at least permitted liberals some plausible deniability–are through beating around the bush. Democratic Senator Chuck Schumer has announced his party’s newest midterm election strategy: amend the Constitution to rein in its free speech protections. Read the rest of this entry »
As SteynOnline readers well know, in the wake of Seal Team Six, America has also acquired a Bunny Team Six and a Deer Team Six. Now comes news from Nevada ofCattle Team Six. It’s a long-running story of rights to graze on “federal land” vs protection of the “desert tortoise”, but, like so many disputes with American bureaucrats these days, it ends with paramilitary commandos training their weapons on civilians:
Federal snipers with the Bureau of Land Management (BLM) trained guns on members of a family yesterday after they dared to stop and take video footage of cattle…
Whoa, hold that thought! “Federal snipers with the Bureau of Land Management”. As I wrote only last week, if someone wants to stroll in to Fort Hood and shoot as many people as he’s minded to, the fellows on the receiving end have to call 911 and wait for the county sheriff to send a couple of deputies – because “the only government department without a military force at its disposal is the military“. But the Bureau of Land Management has snipers.
For NRO, David French writes: Not for the first time, the radical Left is moving rapidly away from any respect for free speech and pluralism and is decisively throwing itself into creating a self-righteous culture of intolerance and intimidation. It’s playing a dangerous game, one that is already alienating its own allies.
I don’t often type this, but I agree with every word Andrew Sullivan says here about Mozilla ridding itself of its independent-thinking CEO:
As I said last night, of course Mozilla has the right to purge a CEO because of his incorrect political views. Of course Eich was not stripped of his First Amendment rights. I’d fight till my last breath for Mozilla to retain that right. What I’m concerned with is the substantive reason for purging him. When people’s lives and careers are subject to litmus tests, and fired if they do not publicly renounce what may well be their sincere conviction, we have crossed a line. This is McCarthyism applied by civil actors. This is the definition of intolerance. If a socially conservative private entity fired someone because they discovered he had donated against Prop 8, how would you feel? It’s staggering to me that a minority long persecuted for holding unpopular views can now turn around and persecute others for the exact same reason. If we cannot live and work alongside people with whom we deeply disagree, we are finished as a liberal society.
And I say this even less, but I also agree with Michelle Goldberg, writing in The Nation about a different leftist intimidation campaign — the move to cancel Stephen Colbert’s show after he made a lame racial joke:
Call it left-wing anti-liberalism: the idea, captured by Herbert Marcuse in his 1965 essay “Repressive Tolerance,” that social justice demands curbs on freedom of expression. “[I]t is possible to define the direction in which prevailing institutions, policies, opinions would have to be changed in order to improve the chance of a peace which is not identical with cold war and a little hot war, and a satisfaction of needs which does not feed on poverty, oppression, and exploitation,” he wrote…