Archive for the ‘First Amendment’ Category

Laurence Tribe’s op-ed about the King v. Burwell ruling is typical progressivism. It’s all about rationalizing a terrible, wrong-headed decision. Tribe made some statements that deserve rebutting. This is one of those statements:

The Supreme Court correctly applied standard interpretive methods in holding that, despite the apparent clarity of those four words, the law makes subsidies available on all exchanges, state and federal. Looking to the overall purpose, structure, and context of the Act, the court asked with incredulity why Congress would risk total implosion of the ACA just to encourage states to create their own exchanges especially when Congress itself provided the federal backstop.

When the words are clear, which they are, the test that Tribe mentioned isn’t applied. Typically, that test is only applied if the words are ambiguous. Chief Justice Roberts said that the 4 words were “inartful drafting.” Justice Scalia’s response was that it wasn’t likely that that inartful drafting would appear in the ACA’s language 7 different times.

As for whether Congress “would risk total implosion of the ACA just to encourage states to create their own exchanges”, the answer is yes. That’s why the federal government didn’t start building their website right away. Their plan — their concerted plan — was to pressure states into creating their own exchanges. Further, the IRS didn’t write its rule extending subsidies to people who bought their insurance through until it was clear that a substantial number of states weren’t going to create state-run exchanges.

Isn’t it curious that that clarification wasn’t the first thing mentioned in the rules? The instructions to the IRS weren’t written until late in the process. Why wasn’t it the first rule written? If the ACA’s success hinged on the subsidies, shouldn’t that have been the first rule written?

The people also won because the Roberts Court has given them a solid basis for trusting that hard-won victories in Congress will remain intact when challenged in the court. When it decides constitutional cases, like the much-anticipated same-sex marriage cases, the court’s role is to serve as a check on the people, ensuring that legislative or popular majorities don’t act in violation of the Constitution. This is the sense in which the court has famously been described as “counter-majoritarian.”

The Constitution was built to restrict what government isn’t authorized to do. That’s insanity. The Fourth Amendment wasn’t written to tell people what they couldn’t do. It was written to tell government what it can’t do. Specifically, the Fourth Amendment prohibits the government from conducting unreasonable searches against private citizens and publicly-traded companies.

The First Amendment prohibits Congress from writing laws that restrict people’s ability to speak out against politicians and government. It isn’t a check on people. It’s another check on government.

If Prof. Tribe can’t understand the most basic principles underpinning the Constitution, then his opinions on Supreme Court rulings is questionable.

When I’ve written about censorship on college campuses, it’s usually been because people have argued that they have the right to never be offended. Jon Stewart recently interviewed Judge Napolitano about the First Amendment, specifically citing the right to fly the Confederate Flag. Here’s the entire interview:

Here’s the heart of what Judge Napolitano told Stewart:

NAPOLITANO: I say you have the right to fly that flag on your private property. You have the right to any opinion or thought you want, even one manifested or animated by hate. And the government has no business regulating thought. If the First Amendment protects anything, it protects your absolute unfettered right to think what you want and say what you think.

Last week, I heard something simple, yet profound. Someone said that there’s no need to protect popular speech because nobody objects to it. The First Amendment is the most important part of the Bill of Rights because it tells the government that We The People will decide what’s said and that the government shall not have the right to tell us to shut up or restrict what we say.

Judge Napolitano quickly pointed out, however, that if he said something controversial, or even hateful, he doesn’t have the right to not hear from people who disagree with him. Napolitano said that nobody in the United States has “the right to not be offended.”

Apparently, the enlightened people on college campuses didn’t get that memo. Apparently, Cass Sunstein didn’t learn that in civics class either:

In recent months, universities have turned their attention to an important problem that should be included in our national effort to examine and root out bigotry. They have identified, and attempted to reduce, “microaggressions” — words or behavior that might stigmatize or humiliate women or members of minority groups, with particular emphasis on African-Americans, disabled people, and gays and lesbians. The effort has admirable goals, but there is a risk that schools will overshoot the mark.

University administrators don’t have the authority to ban words from campus. Further, administrators aren’t doing students a favor by limiting students’ exposure to repulsive language. Just like there’s no way to totally eliminate gun violence, there’s no way to stop people from saying disgusting things.

That’s because there will always be hate-filled, ill-tempered people.

The solution to this isn’t banning words or flags that trigger hurt feelings. The solution is criticizing people who say hurtful things. BTW, Hillary Clinton has called for banning certain types of flags.

I’d way rather live in a world that lives according to Judge Napolitano’s principles than a world living by Hillary’s principles. It isn’t even close.

In typical progressive do-as-I-say-not-as-I-do fashion, Russ Feingold has exposed himself as just another typical career politician:

According to a report earlier this week by the Journal Sentinel’s Dan Bice, Feingold’s political action committee, Progressives United PAC, bought 100 leather-bound copies of the ex-senator’s 2013 book, along with 1,000 hardcover copies. Feingold also received $77,000 in salary from both the PAC and its nonprofit companion.

Of course, Feingold’s act for years has been not having an act. As a champion of campaign finance reform, he has consistently condemned the pernicious effects of money in politics. But evidently his distaste for campaign cash wasn’t enough to keep him from bathing his cronies in greenbacks.

The PAC was created with the stated goal of “directly and indirectly supporting candidates who stand up for our progressive ideals.” But instead, it appears it existed almost solely to support salaries for Feingold loyalists who lost their jobs after his 2010 loss to businessman Ron Johnson. Bice calculated that nearly 90% of the $7.1 million raised between January of 2011 and March of 2015 went to fundraising or staff salaries, including $317,823 to Feingold’s former chief of staff, Mary Irvine. All told, Feingold, Irvine and eight former staffers drew salaries or consulting fees from the fund.

We’re talking about the same principles as the Clinton Foundation except on a significantly smaller scale. The Clinton Foundation was essentially a holding spot for Hillary’s campaign-in-waiting:

The media’s focus is on Hillary Clinton’s time as secretary of state, and whether she took official actions to benefit her family’s global charity. But the mistake is starting from the premise that the Clinton Foundation is a “charity.” What’s clear by now is that this family enterprise was set up as a global shakedown operation, designed to finance and nurture the Clintons’ continued political ambitions. It’s a Hillary super PAC that throws in the occasional good deed.

Other than in scale and the Foundation’s “occasional good deed”, how is Feigold’s PAC different than the Clinton Foundation?

This is a big deal. It isn’t that progressives will abandon Feingold. It’s that independents that thought of him as a straight shooter will abandon him. This will still be a featured race in 2016 but this Journal-Sentinel article will definitely hurt Feingold.

It’s clear that the DSCC will do everything possible to defeat Ron Johnson, (R-WI). Unfortunately for them, Russ Feingold is known for just one thing: the BCRA, aka McCain-Feingold. Russ Feingold is half of the dimwitted duo that wanted to restrict people’s ability to voice their worries about politicians during an election cycle. Let’s highlight that.

Russ Feingold thinks that government should have the right to restrict what citizens say and when they can say things. That’s because Russ Feingold is one of those politicians that think they know what’s best and that citizens have to be told what to do for their own benefit.

That’s the epitome of elitism. It’s breathtaking that elitists want to protect us uppity peasants from ourselves.

We need straight shooters like Ron Johnson in the Senate. Follow this link to contribute to Sen. Johnson’s campaign. Re-electing Sen. Johnson should be one of the Republicans’ highest priorities in 2016.

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When Wayne Lela and John McCartney wanted to distribute literature that contained their views on homosexuality and other sexual matters at Waubunsee Community College, the administration tried barring them from distributing their literature. Thankfully, Lela and McCartney fought back:

As FIRE reported last July, the pair filed their lawsuit after an administrator barred them from distributing literature on campus containing their views on homosexuality, religious liberty, and free speech rights because it was not “consistent with the philosophy, goals and mission of the college” and would be “disruptive of the college’s educational mission.” According to the complaint, a letter to Lela and McCartney from WCC’s attorney made clear that the literature’s criticism of homosexuality was the motivating factor behind the ban. Lela and McCartney are represented by the Rutherford Institute and Chicago attorneys Whitman Brisky and Noel Sterett of the law firm Mauck & Baker, LLC.

In January, my colleague Susan Kruth reported that U.S. District Court Judge Robert W. Gettleman issued a preliminary injunction ordering WCC to cease its viewpoint-based censorship and allow Lela and McCartney to resume distributing literature on campus, noting that “provocative speech is entitled to the same protection as speech promoting popular notions.” Today, the Rutherford Institute and Mauck & Baker announced that the parties have settled, with WCC paying $132,000 in damages and attorneys’ fees and agreeing to allow Lela and McCartney to distribute their literature outside the doors to the student center without having to sit behind a table.

I particularly appreciate this part of the judge’s opinion:

“provocative speech is entitled to the same protection as speech promoting popular notions.”

There’s no need to protect popular speech because nobody objects to it. The only speech that needs protection is controversial or upsetting speech. That’s the category of speech that people object to. This is what’s disappointing:

While we are pleased that WCC seems to have recognized the futility of continuing to seek the authority to censor views it disagrees with, it is unfortunate and unacceptable that it took nearly a year of litigation, a court order, and a $132,000 bill to get there. After decades of judicial opinions, it should not be news to any public college administrator that the First Amendment applies fully on campus. Sadly, as FIRE’s Stand Up For Speech Litigation Project proves, it appears that some administrators will have to be dragged kicking and screaming into compliance with the First Amendment.

FIRE has been kicking college administrators’ butts in court for quite a while. Universities’ attorneys know what the precedents are. They’re aware of the judges’ rulings. It shouldn’t have to be this way.

Early in this video, Alan Dershowitz lavishly praised Megyn Kelly’s opening monologue defending the First Amendment:

First, here’s a partial transcript of Megyn Kelly’s opening monologue:

MEGYN KELLY: Well, last night we had a thoughtful discussion about free speech and American values and why our commitment to liberty as a nation requires everyone to stand up for the rights of those speaking, even if they’re using the most offensive of words. It’s not about aligning ourselves with the words. It’s about defending a core American principle. First Amendment scholar Eugene Volokh explained how, not only did the people organizing a “Draw Muhammad” event down in Texas have the right to do it, which some had questioned, but how what they did was actually important and of real value because it was an act of defiance. Defiance towards those radical Muslim fanatics who mean to impose their radical moral code on us, namely that certain figures may not be drawn or parodied upon pain of death. What happened in Texas is that a group said no, you don’t get to control speech in this country, even if a religion finds it offensive. Sure enough, the jihadis showed up with AK-47s and tried to murder everyone there. Now some suggest that the risk from the event is that some of our Muslim nation coalition allies might be less inclined to fight the jihad if they see some private group like this one hold a private event. So private citizens shouldn’t do things even behind closed doors now, lest they cause offense? Because our friends in Egypt might get ticked off. But the fact is we don’t compromise America’s bedrock principles just to make other nations like us more just as we don’t require them to change their values before we fight a common enemy. Otherwise, Egypt’s “We will kill you for leaving Islam” might be a deal-breaker. The bottom line here is that some in this country have been so busy trying how to figure out how to avoid causing any religion any offense, they have forgotten what is offensive to Americans, namely those who would trample on our core ideals. In America, we stand for liberty and freedom to offend, to provoke, to persuade and to defy.

Alan Dershowitz is a Harvard Law Professor Emeritus and author of the book “Taking the Stand: My Life in the Law.” Alan, let me start with you…

DERSHOWITZ: Let me start with you first and applaud your statement. It was fantastic. It is the paradigm for how Americans have to look at our freedoms and our First Amendment. Jefferson would have been proud of you.

That led Professor Dershowitz to make this important historical observation:

DERSHOWITZ: Now, look, everything that the critics of Geller have said could be said about Martin Luther King. Now, I don’t want to make any comparisons between the two of them morally but, from a constitutional law standpoint, there is no difference. Martin Luther King picked some of the cities he went to precisely to provoke and bring out the racists and show what type of violent people they are so the world could see what was wrong with Jim Crow. It’s part of the American tradition to provoke so the world can see.

Here’s one of the things I wrote in this post:

It’s worth noting, though, that radical adherents of Islam react violently when confronted with objectionable depictions of Muhammad but that the vilest representatives of Christianity, aka the Westboro Baptist Church, show up at funerals with disgusting signs. Another thing worth noting is that universities are told to establish “an inclusive and welcoming environment” for Muslims but aren’t told to establish that type of environment for Christians.

The event in Texas verified what I wrote here, namely, that Muslim terrorists react violently whereas the nastiest Christians get is they show up at funerals with disgusting signs.

Thanks to the event in Texas, it’s now clear that the vilest Christians react dramatically differently than Muslim terrorists.

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This article is misguided and apologetic. Here’s something that needs to be demolished:

Repeated demonization can inspire violence. This is a fact. “During the Holocaust, the Nazis went beyond making us social outcasts; they systematically slaughtered our people with unspeakable cruelty. Because we know so well what it is like to be outcasts, we must never, through our deeds or words, make others into modern-day lepers,” says Rabbi Rick Jacobs, president of the largest Jewish denomination in North America. “[W]hat [Geller] does, what she represents, has no place in a Jewish community that is built on tolerance and understanding.”

The only time when demonization inspires violence is when we’re dealing with violent people.

The author cited the Holocaust. That’s utterly irrelevant to this discussion. The Nazis were led by a depraved lunatic. Demonization of Christians hasn’t led to violence. It’s led to protests and complaints. It hasn’t led to assassination attempts.

What’s disgusting is that the preachers of tolerance haven’t criticized the terrorists. It’s puzzling why they haven’t. After all, they’re practitioners of intolerance. They’re the executioners.

What’s most repulsive about this article is the Neanderthal thinking involved. What’s the difference between a) holding a provocative event is justification for a terrorist attack and b) a woman dressed provocatively was asking to get raped?

We cannot defeat terrorist groups like ISIS by following ideology that serves only to demonize the other. Rather, we counter such extremism with better, more compassionate, and more pluralistic concepts that are universal to all people — respect, integrity, and justice.

Actually, it’s quite possible to defeat the terrorists by being the nastiest bull in the neighborhood. The thought is that most Muslims are non-violent who want to live without the threat of oppressors. Killing the terrorists, whether they’re allied with ISIS or AQAP, gives vast numbers of Muslims the life they want to lead.

I can get along with non-violent Muslims. I won’t treat the violent terrorists with anything other than violence.

Finally, I want to thank Ms. Geller for holding this event. It’s caused the terrorist apologists and the First Amendment haters to reveal themselves.

This article offers an opportunity to conduct a thought experiment. First, it’s important to establish a base of understanding:

  1. Several professors put together a panel on the Charlie Hebdo murders; the panel was promoted with the flyer quoted above, which includes the cover of the first post-murder issue, with a “CENSORED” stamp added on top of it. “The flyer was published on the various unit sponsors’ websites and elsewhere on campus.” The event, according to the participants, drew a lot of attendees, and apparently wasn’t disrupted in any way.
  2. But then, after the event, “eight people — four students, a retired professor, an adjunct professor and two others from outside the university — contacted equal opportunity personnel to express concern that the flyer ‘featured a depiction of Muhammad, which they and many other Muslims consider blasphemous and/or insulting.’” The university also got a petition from 260 students and staff members, plus about 45 others, which condemned the flyer as “very offensive” and said it “violated our religious identity and hurt our deeply held religious affiliations for our beloved prophet (peace be upon him). Knowing that these caricatures hurt and are condemned by 1.75 billion Muslims in the world, the university should not have recirculated/reproduced them.”

Here’s the summary of what should be done:

The [Office of Equal Opportunity and Affirmative Action] said in its summary for the dean, the poster had “significant negative repercussions.” And given the “large-scale” global protests against the image in question, “the organizers knew or should have known” that their decision to reprint the image “would offend, insult and alienate some not-insignificant proportion of the university’s Muslim community on the basis of their religious identity,” the office added. It said the hurt was heightened by the fact that the insulting speech came from those with “positional power” at Minnesota.

Consequently, the office wrote, “university members should condemn insults made to a religious community in the name of free speech.” Equal opportunity administrators told [John Coleman, dean of the College of Liberal Arts,] that he had the “opportunity to lead in creating an inclusive and welcoming environment for Muslim students by adding your own speech to the dialogue advocating for civility and respect by [college] faculty.”

It’s clear that the highest priority of the “Office of Equal Opportunity and Affirmative Action” is to a) create “an inclusive and welcoming environment for Muslim students” and b) to not “offend, insult and alienate some not-insignificant proportion of the university’s Muslim community on the basis of their religious identity.”

My question for Dr. Coleman, the dean of the College of Liberal Arts, is simple. If Dr. Coleman accepts these recommendations, is he prepared to implement these recommendations for people of all faiths?

I’m not proposing that he adopt any of these recommendations. I’m not proposing anything, with the exception of applying the First Amendment consistently and correctly to all University students and employees.

It’s worth noting, though, that radical adherents of Islam react violently when confronted with objectionable depictions of Muhammad but that the vilest representatives of Christianity, aka the Westboro Baptist Church, show up at funerals with disgusting signs. Another thing worth noting is that universities are told to establish “an inclusive and welcoming environment” for Muslims but aren’t told to establish that type of environment for Christians.

Perhaps Dr. Coleman can explain that policy. Perhaps but I’d bet not.

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This morning’s reading has included the latest information on how the Clintons used Hillary’s official position as head of the State Department to enrich the Clinton Foundation. After that, I read more about Milwaukee County DA John Chisholm’s fishing expedition into conservatives’ political activities. After I finished with that, I read this article about the federal government’s confiscation of Marvin Horne’s agricultural crop.

After reading these articles, it’s clear that progressive policies are ruining the United States. It’s equally clear that we won’t recognize the United States if these policies continue. The nation that our Founding Fathers will have been confiscated by progressive thugs who hate the Founding Fathers’ United States.

Let’s start by talking about the constitutional protections progressives threw into a trash can during Chisholm’s fishing expedition. The thugs (I won’t call them law enforcement officers) that raided Cindy Archer’s home told her she couldn’t talk about the raid to anyone and that she couldn’t get a lawyer to represent herself. Then they repeated these actions in 9 more homes. The thugs had search warrants but it’s questionable how valid they are. According to the Constitution, you need to tell the judge what evidence you have to get a warrant. Telling the judge ‘We think Ms. Archer has information that will help our investigation’ won’t cut it.

What’s worse is Ms. Archer being told that she couldn’t get an attorney. Here’s the text of the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Having thugs in uniforms tell Ms. Archer that she couldn’t talk with a lawyer is un-American and fascism.

KEY QUESTION: Do we want to live in a nation where the government is used as a weapon against citizens exercising their right to participate in the political process?

Next, let’s talk about the Clintons using Hillary’s position at the State Department for personal gain:

Was there a quid pro quo? Based on the Times reporting, there was certainly a lot of quid (millions in donations that made it to a Clinton charity; a half-million-dollar speaker’s fee) and multiple quos (American diplomatic intervention with the Russians; approvals when the Russian firm offered a very “generous” price for Uranium One). The Clinton perspective is that, although the approvals were delivered by the State Department when Clinton led it, there is no evidence that she personally delivered them, or of the “pro” in the equation.

The Clintons’ defense didn’t include an outright denial of wrongdoing. What’s telling about the Clintons’ denial is that it stopped short of denying that they were involved in influence peddling.

KEY QUESTION: Do we want to live in a nation where the well-connected get rich without contributing anything of value to the economy?

Finally, let’s look at how weaponized government confiscated agricultural products without compensating farmers for the products they produced. The Horne family raised lots of raisins on their farm. The USDA (US Department of Agriculture) ordered them to limit their production of raisins. When the Horne family refused to accept the government’s demands, the USDA fined them $700,000 for not obeying the government.

Farmers should have the right to grow however many crops as they want. The government shouldn’t be able to limit the quantity of products they produce. It’s the farmers’ property. It’s their right to do whatever they want to do with their property as long as they aren’t physically harming others.

KEY QUESTION: Did the Founding Fathers intend for the government to limit the size of an individual’s crops? Or did the Founding Fathers write the Constitution in such a way that limited the federal government’s authority in telling individuals what they could do?

When government can tell people that they don’t have the right to counsel, that government has confirmed that they’re a lawless regime. When government dictates to farmers what crops they can grow and how much of that crop they can grow, then that government has become the people’s dictator, not its servant. When individuals use their official government responsibilities to enrich themselves, then we’ve reached a point where those individuals have stopped being public servants.

It’s at that point when weaponized government must be defanged and the individuals involved in these activities must be stripped of their ability to enrich themselves. It’s imperative that citizens of good faith halt the Democrats’ culture of corruption.

When I first read David French’s article, my first reaction was that John T. Chisholm, the Milwaukee County District Attorney, should be disbarred, then tried and convicted, then thrown into prison for a very long time. Chisholm is a progressive political hack with a mission to destroy the conservative movement in Wisconsin:

Cindy Archer, one of the lead architects of Wisconsin’s Act 10 — also called the “Wisconsin Budget Repair Bill,” it limited public-employee benefits and altered collective-bargaining rules for public-employee unions — was jolted awake by yelling, loud pounding at the door, and her dogs’ frantic barking. The entire house — the windows and walls — was shaking. She looked outside to see up to a dozen police officers, yelling to open the door. They were carrying a battering ram.

She wasn’t dressed, but she started to run toward the door, her body in full view of the police. Some yelled at her to grab some clothes, others yelled for her to open the door. “I was so afraid,” she says. “I did not know what to do.” She grabbed some clothes, opened the door, and dressed right in front of the police. The dogs were still frantic. “I begged and begged, ‘Please don’t shoot my dogs, please don’t shoot my dogs, just don’t shoot my dogs.’ I couldn’t get them to stop barking, and I couldn’t get them outside quick enough. I saw a gun and barking dogs. I was scared and knew this was a bad mix.”

She got the dogs safely out of the house, just as multiple armed agents rushed inside. Some even barged into the bathroom, where her partner was in the shower. The officer or agent in charge demanded that Cindy sit on the couch, but she wanted to get up and get a cup of coffee. “I told him this was my house and I could do what I wanted.” Wrong thing to say. “This made the agent in charge furious. He towered over me with his finger in my face and yelled like a drill sergeant that I either do it his way or he would handcuff me.”

Last night, Megyn Kelly interviewed David French. Here’s the video of the interview:

Here’s the most chilling exchange of the interview:

MEGYN: Who was the judge that signed off on these subpoenas?
DAVID FRENCH: The judge’s name is Barbara Kluka, I believe is how you pronounce her name. She signed off on hundreds of pages of subpoenas in literally one afternoon of work. It was a rubberstamp process. It was not true judicial oversight and the result has been catastrophic to citizens’ rights.

French’s statement might be the understatement of the year. The things that are alleged, if they’re proven in a court of law, should be grounds for termination of the police officers and the disbarment of the judge and the district attorney.

The policeman (policemen?) who ordered Ms. Archer that she couldn’t speak with a lawyer and that she couldn’t speak about the police officers’ actions violated Ms. Archer’s constitutional right to an attorney. Saying that she couldn’t speak about the raid essentially amounts to putting a gag order on Ms. Archer. I’m no lawyer but aren’t gag orders meant to preserve the right to a fair trial?

In this instance, the purpose of the gag order was to protect these thugs’ secrecy. The only people that benefited were the thugs with badges.

This isn’t just about prosecutorial or judicial misconduct. It’s about how the Democratic Party weaponized the district attorney’s office and the Milwaukee police force to intimidate conservatives from speaking about the issues that matter most to them. That’s the heart of the First Amendment’s protections.

Finally, this is the face of pure evil. These Democrats should be destroyed politically. They should all spend years in prison doing hard time. Silencing people who just wanted to support a political issue is despicable.

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