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The First Amendment: Freedom of Speech, Religion, & Assembly
Topic: The First Amendment: Freedom of Speech, Religion, & Assembly (Read 13522 times)
Re: The First Amendment & Free Speech
Reply #50 on:
October 21, 2011, 11:37:59 AM »
Quote from: ccp on October 21, 2011, 11:34:00 AM
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.
This whole establishment thing is so corrupt
Reply #51 on:
October 21, 2011, 02:53:36 PM »
"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.
NYTimes: When the Truth survives Free Speech
Reply #52 on:
December 12, 2011, 08:27:53 AM »
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.
(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.
The Hosanna decision
Reply #53 on:
January 12, 2012, 05:11:06 PM »
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.
Newt: Sacred Beliefs in Afg. and America
Reply #54 on:
May 02, 2012, 11:12:29 AM »
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.
Re: The First Amendment & Free Speech
Reply #55 on:
May 05, 2012, 06:57:34 PM »
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
. You can share ideas for stories on the Open Wire.
Topics: First Amendment, Facebook
The Right to Record the Police
Reply #56 on:
May 21, 2012, 10:48:53 AM »
In a rare event, the POTH editorial board and I are in agreement:
The Right to RecordPublished: May 20, 2012
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
Times Topic: Law and Legislation
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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.
feds want reporters to use only govt computers
Reply #57 on:
June 07, 2012, 11:38:09 AM »
POTH: Free Speech for computers?
Reply #58 on:
June 20, 2012, 08:46:23 AM »
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.”
WSJ: 9th reversed in Knox v. SEIU
Reply #59 on:
June 22, 2012, 03:53:11 PM »
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.
Reply #60 on:
July 15, 2012, 03:55:49 PM »
Glenn Beck: Sen. Chuck Schumer vs. the First Amendment
Reply #61 on:
July 18, 2012, 04:59:40 PM »
‘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.
JPS: Should Hate Speech Be Outlawed?
Reply #62 on:
July 24, 2012, 04:06:05 PM »
First Amendment Freedom of Speech, It's Chick Fil-A Appreciation Day!
Reply #63 on:
August 01, 2012, 12:19:36 PM »
In celebration of the First Amendment, today is Chick-Fil-A Appreciation Day
Enjoy a little lunch or dinner with your freedom of speech.
Re: The First Amendment: Freedom of Speech, Religion, & Assembly
Reply #64 on:
August 01, 2012, 03:14:21 PM »
The Denny family will be dining there this evening
WSJ: The Chik Fil war is back on
Reply #65 on:
September 25, 2012, 11:06:39 AM »
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.
Big Corps (youtube, google, etc) and free speech
Reply #66 on:
October 15, 2012, 07:24:04 PM »
POTH: Feigning Free Speech
Reply #67 on:
October 25, 2012, 03:55:19 PM »
WSJ: 6th Circuit OKs ban of ad offering protection to those threatened by fatwas
Reply #68 on:
October 25, 2012, 04:03:33 PM »
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.
Progressive war on God takes on six year old girl
Reply #69 on:
November 30, 2012, 02:53:14 PM »
POTH: One nation under God?
Reply #70 on:
December 24, 2012, 11:33:01 AM »
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.
One Nation Under God?
By MOLLY WORTHEN
Published: December 22, 2012
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.
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.’ ”
Page 2 of 2)
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.
Standford Law Review: The First Amendment and Confidentiality
Reply #71 on:
December 30, 2012, 10:03:24 PM »
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.
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.
Secret Service can felony arrest protestors?
Reply #72 on:
January 19, 2013, 10:05:33 AM »
Re: Secret Service can felony arrest protestors?
Reply #73 on:
January 19, 2013, 04:11:02 PM »
Quote from: Crafty_Dog on January 19, 2013, 10:05:33 AM
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.
Re: The First Amendment: Freedom of Speech, Religion, & Assembly
Reply #74 on:
January 19, 2013, 04:12:28 PM »
Good addition to the conversation GM.
Re: The First Amendment: Freedom of Speech, Religion, & Assembly
Reply #75 on:
January 19, 2013, 04:14:03 PM »
Eugene Volokh is a smart guy. I like to check his position on legal issues.
Re: The First Amendment: Freedom of Speech, Religion, & Assembly
Reply #76 on:
January 19, 2013, 05:35:27 PM »
And Napolitano can hyperventilate at times-- hence the question mark I put in the header.
Re: The First Amendment: Freedom of Speech, Religion, & Assembly
Reply #77 on:
January 19, 2013, 09:47:56 PM »
This is another thing with which GM and I agree.
Quote from: G M on January 19, 2013, 04:14:03 PM
Eugene Volokh is a smart guy. I like to check his position on legal issues.
"Misinformation" will be prosecuted?!?
Reply #78 on:
January 22, 2013, 01:29:39 PM »
College president fined over free speech violation
Reply #79 on:
February 02, 2013, 03:07:45 PM »
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.
Fornicate you Baraq
Reply #80 on:
February 03, 2013, 02:12:11 PM »
Re: The First Amendment: Freedom of Speech, Religion, & Assembly
Reply #81 on:
February 08, 2013, 09:15:51 AM »
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.
WSJ: Jury convicts university prez for first amendment violationss
Reply #82 on:
February 18, 2013, 05:32:24 PM »
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..
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
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).
Freedom of the Press, Aurora killer's notebook and a reporter's rights
Reply #83 on:
April 10, 2013, 12:00:22 PM »
Imagine if we honored the other clauses of the constitution (like the second amendment) with this kind of no-exceptions consistency.
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.
Thanking God not allowed
Reply #84 on:
May 05, 2013, 09:47:37 PM »
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.”
WSJ: Feds to Students: You can't say that
Reply #85 on:
May 17, 2013, 10:34:03 AM »
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.
WSJ: Rivkin & Casey: The IRS and Free Speech
Reply #86 on:
May 20, 2013, 08:21:52 PM »
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.
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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