To be appointed to a Justice Department position in the Obama administration, you may need to satisfy various ideological litmus tests. But apparently you don’t need to understand or appreciate the First Amendment. That seems to be regarded as a bug rather than a feature for Justice Department lawyers.
One example is the administration’s baseless prosecutions of peaceful, non-disruptive anti-abortion protesters, which has resulted in judges imposing sanctions against the Justice Department for frivolous prosecutions. In U.S. v. Pine, taxpayers ponied up $120,000 when a judge ordered the Justice Department to pay the attorneys fees of a protester persecuted by the Obama Justice Department in a transparently baseless prosecution.
Another is the recent message delivered by Bill Killian, whom the president appointed to be U.S. Attorney for the Eastern District of Tennessee. He told citizens at a meeting he organized “that hate speech was not protected by the First Amendment,” reports NPR.
The Supreme Court has made clear over and over again that hate speech in public settings is protected by the First Amendment. See the Supreme Court’s decisions in (1) R.A.V. v. St. Paul (1992), which invalidated a hate-speech ordinance; (2) Snyder v. Phelps (2011), which overturned damages for hateful bigoted speech at a funeral; (3) Forsyth County v. Nationalist Movement (1992), which said a racist group couldn’t be charged more fees based on its racist message; and (4) Brandenburg v. Ohio (1969), which held a racist Klan speech was protected by the First Amendment. The U.S. Attorney either was not aware of, or did not agree with, any of these well-known Supreme Court decisions that limit his power to prosecute citizens’ speech.
It’s not a good idea to let the government ban what it views as “hate speech,” because many commonplace views that are not in fact hateful have been banned under overbroad campus hate-speech and “harassment codes” struck down by federal judges. For example, commonplace views about affirmative action, feminism and the death penalty have been punished under campus hate speech and harassment codes. (See the examples cited in Brief of Amici Curiae Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, 1998 WL 847365, filed Dec. 8, 1998.)
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Law Professor Eugene Volokh has an interesting post on a Wisconsin town’s “bullying” ordinance, which criminalizes speech by minors as “bullying” or “harassment” if it creates an “offensive” or “hostile” environment, or if it is deemed “emotionally abusive.” I explain here why the ordinance in Monona, Wisconsin, is unconstitutionally vague, and how it would chill speech protected by the First Amendment.
What is perhaps most disturbing about the ordinance is that it punishes parents for the speech and conduct by their children that it defines as “bullying.”
Ordinances like this also set a worrisome precedent for employers and businesses, with workplace bullying activists seeking to define a wide array of supervisor and co-worker speech that criticizes a worker as “bullying,” in definitions far broader than the Monona ordinance. (People need to be able to freely criticize coworkers, even if it hurts their feelings, in order to remedy bad or mediocre work performance. But some anti-bullying activists want to restrict workplace criticism unless the employer has overwhelming proof of “substantive and quantifiable” bad performance. Such restrictions would chill speech that is needed for self-improvement and an efficient workplace.)
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Earlier, I wrote about a recent letter from the Education and Justice Departments demanding that the University of Montana define as a reportable “sexual harassment” offense “any” speech on sexual topics that is “unwelcome” to any listener, even if most listeners do not find it “unwelcome,” and it would not offend the “reasonable person.” This pretty obviously violates the First Amendment, as I explain here in the Chronicle of Higher Education at this link.
The government calls this letter a “blueprint” for the nation’s colleges and universities to use. If the colleges follow this “blueprint,” they will open themselves up to First Amendment lawsuits, as The Washington Post’s George Will notes, quoting civil libertarians (and me) objecting to the government’s demands. Other op-eds criticizing the government’s demand for censorship, such as Wendy Kaminer’s commentary in The Atlantic, and syndicated columnist Mona Charen’s op-ed, can be found here, here, and here.
The government’s demands also disregard past government guidance as to what constitutes “sexual harassment”; Supreme Court decisions defining sexual harassment and rejecting college curbs on “indecent” speech in campus debates; and rulings by the U.S. Third Circuit Court of Appeals, and federal district court judges, striking down campus sexual harassment codes that restricted speech protected by the First Amendment.
As George Will notes,
The OCR-DOJ “blueprint” requires, Kaminer says, colleges and universities to hear harassment complaints under quasi-judicial procedures “that favor complainants.” Under 2011 rules that establish a low standard of proof, Kaminer says, “students accused of harassment are to be convicted in the absence of clear and convincing evidence of guilt, if guilt merely seems more likely than not.” And schools are enjoined to “take immediate steps to protect the complainant from further harassment,” including “taking disciplinary action against the harasser” prior to adjudication. So the OCR-DOJ “blueprint” and related rules not only violate the First Amendment guarantee of free speech but are, to be polite, casual about due process.
Hans Bader, a former OCR lawyer now with the limited-government Competitive Enterprise Institute, notes that this “Alice in Wonderland” — “sentence first, verdict afterwards” — system “casts a cloud over academic freedom and the ability to discuss topics that are offensive to some listeners.” Indeed, to one listen
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Earlier, I wrote about how, thanks to civil-service regulations, it is hard to fire government employees for misconduct, despite often-ignored Constitutional provisions, such as the Appointments Clause, that the Founding Fathers put into the Constitution to enable department heads to fire and replace federal “officers.” As a result, I was concerned that IRS managers and employees would continue to escape punishment for making burdensome, intrusive, and unconstitutional demands for irrelevant information from non-profit groups that were critical of the government, such as the Tea Party, and which taught about the Constitution. These intrusive investigations violated the First Amendment.
It turns out that they could, after a protracted and costly process, be fired for the types of misconduct they committed — and that their termination for such misconduct may technically be mandated, not merely permitted, by a 1998 law. A lawyer discusses this at Powerline. Misconduct, not incompetence, will likely need to be shown. As noted earlier, few federal employees with ‘‘poor’’ ratings ever get fired, and civil-service employees ‘‘are almost impossible to fire’’ for incompetence, to quote the Houston and San Francisco Chronicle newspapers.
In the American Spectator, CEI Vice President for Strategy Iain Murray and Geoffrey McLatchey explain why the Senate should be skeptical of the United Nations Convention on the Rights of Persons with Disabilities, which fell six votes short of the 67 needed for ratification last December. As they note, “the treaty would enable an enormous increase in the potential power of UN bureaucrats over the American people and undermine national sovereignty.” Moreover, although “CRPD proponents argue that it merely reiterates existing U.S. disability law,” this is simply false, based on the treaty’s plain language.
It also delegates authority to a UN committee, they note, resulting in a “loss of U.S. sovereignty.” UN committees like to define free speech as discrimination against minority groups in violation of international treaties, making it dangerous to ratify such treaties. For example, the U.N. Committee on the Elimination of Racial Discrimination has ruled Germany violated international law by not prosecuting a former legislator for remarks to a scholarly journal about Turkish-immigrant welfare recipients that were deemed racially offensive. The UN committee ruled Germany’s failure to prosecute the speaker violated the International Convention on the Elimination of All Forms of Racial Discrimination.
As Murray and McLatchey point out, “Under CRPD Article 34, U.S. policy would be subject to the ‘Committee on the Rights of Persons with Disabilities,’ a U.N.-appointed panel consisting of 12 ‘experts.’ The history of other UN bodies [such as] the Human Rights Council — which includes countries with a long history of human rights abuses and hostility toward the United States — is not encouraging. And the Convention’s vague language — such as defining disabilities as ‘an evolving concept’ — suggests the Committee will have ample opportunity to redefine terms to America’s disadvantage.”
Subjecting American policies to the UN is a bad idea, especially given many UN officials’ anti-American ideologies. Such hostility is illustrated by the disturbing remarks blaming America for the Boston terrorist bombing by “Richard A. Falk, the U.N. ‘human rights’ official and Princeton professor. . . .Commenting on the Boston bombing, Falk wrote, “Should we not all be meditating on W.H. Auden’s haunting line: ‘Those to whom evil is done/do evil in return’?” “The American global domination project is bound to generate all kinds of resistance in the post-colonial world.”
As Murray and McLatchey note, “The CRPD also requires the United States to set up a propaganda agency. Yes, you read that right. Article 8 states that signatories must take “immediate and effective measures…to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities.” It becomes the federal government’s duty to “combat stereotypes… in all areas of life” by “initiating and maintaining effective public awareness campaigns.”
We previously explained how the CRPD could harm small business and civil liberties at this link. Cato Institute legal analyst Walter Olson highlighted troublesome provisions in the treaty in an article in The Daily Caller, and a followup analysis at Cato at Liberty. As Olson pointed out, other mandates in the treaty that go beyond current U.S. law include costly “requirements for ‘guides, readers and professional sign language interpreters” for facilities that currently don’t require them. As I previously noted, this would appear to partly override the Supreme Court’s decision in Southeastern Community College v. Davis (1979) limiting the degree of accommodation that can be imposed. They also seem to impose new insurance mandates that call into question fundamental actuarial principles used by prudent insurers.
It’s hard to get rid of a career bureaucrat, even at the managerial level. “After you’ve been here for a year, it’s easier to kill you than fire you.” That’s what my co-workers at the Bureau of Labor Statistics would tell me on a sunny day, after we’d used up our lunch hour, but wanted to walk around the National Mall rather than go back to work. I was reminded of this when I learned that not one IRS employee has been so much as reprimanded for their role in making incredibly burdensome, intrusive, and unconstitutional demands for irrelevant information from non-profit groups critical of the government. (By contrast, the head of the IRS was forced to leave his position a month earlier than he wished, in a presidential “firing” designed to create the illusion of accountability.) As Reason magazine notes:
The IRS has admitted to sitting on applications for tax-exempt status by Tea Party groups for political reasons.
According to the government’s own investigation, applications containing terms such as Tea Party and Patriot were singled out for delays and holds even as groups with liberal-sounding names like “Bus for Progress” and “Progress Florida” sailed through the process.
President Obama said “the report’s findings are intolerable and inexcusable” and even fired the acting head of the Internal Revenue Service.
But “intolerable and inexcusable” doesn’t mean any consequences, at least not yet. Lois Lerner, the director of the IRS Exempt Organization Division, is now pleading the Fifth Amendment to avoid answering any questions. (Even left-leaning fact-checkers say she has lied to the public.) [click to continue…]
Progressives such as those at the Daily Kos are arguing that it would have been just fine to for the IRS to investigate all groups critical of the government, as opposed to just conservative groups personally critical of President Obama in particular. Thus, if the IRS is proven to also have investigated left-wing critics of President Obama, or critics of GOP officials, as well, then it did nothing wrong, since it was not engaged in viewpoint discrimination in violation of the First Amendment. Under this logic, it would have been okay for the government to harass critics of wars that were supported by both political parties (like the Vietnam War and the War in Iraq, which initially had bipartisan support, and World War I, which had bipartisan support from start to finish).
This argument shows a real ignorance of the First Amendment, in assuming that when powerful officials harass dissidents, that is just fine as long as they harass both conservative and non-conservative dissidents at the same time. The Supreme Court has rejected this pinched view of the First Amendment in Rosenberger v. Rector and Visitors of the University of Virginia (1995), which said that suppressing multiple opposing viewpoints rather than just one is just as unconstitutional. The Supreme Court first noted that “viewpoint discrimination” is “an egregious form of content discrimination,” and thus is forbidden even in areas (like government funding and tax exemptions) where content discrimination is sometimes permitted. Then it rejected the argument more recently made by at the Daily Kos:
The dissent’s assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar . . . Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. . .The dissent’s declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways.
The Daily Kos blog takes the position debunked by the Supreme Court. It argues that the IRS investigation of groups that applied for 501(c)(4) status was just fine assuming it wasn’t limited to Tea Party groups, but also covered other groups (The IRS also investigated groups that “criticized how the country is being run” — including groups that opposed deficit spending — or taught about the Constitution). A Daily Kos author says that “what . . we do know of” the investigation was that it involved a “focus on nonprofit applications critical of the government, not the president—and again, the apparent goal was to filter out primarily political groups in an application process that was supposed to specifically disqualify, by law, political groups. The ‘scandal’ part of the ‘scandal’ would be that certain groups were targeted by name, e.g. ‘Tea Party,’ which would focus on one certain narrow part of the political spectrum. That apparently political groups were targeted for extra scrutiny when seeking nonprofit status, however, is exactly what was supposed to happen.”
So in his view, it’s fine for the government to harass its critics, while leaving water carriers for the Obama administration (like the DailyKos) alone, as long as the government harasses not just the Tea Party but also left-leaning, moderate, or libertarian critics of the Obama administration’s policies and its civil-liberties violations. (Glenn Greenwald, and former ACLU Board Members Wendy Kaminer and Harvey Silverglate being examples of non-conservative critics of the Obama administration and its repeated violations of basic civil liberties, see here and here, for example.)
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Another federal appeals court has ruled that President Obama’s so-called “recess appointments” to the National Labor Relations Board were unconstitutional because the Senate was not in recess at the time: “We hold that the Recess of the Senate in the Recess Appointments Clause refers to only intersession breaks.” So ruled the majority of a three-judge panel of the Third Circuit Court of Appeals, in its 2-to-1 ruling in NLRB v. New Vista Nursing and Rehabilitation. Generally, our Constitution’s system of checks and balances requires Senate approval of Presidential appointees, but this requirement, found in Article II’s Appointments Clause, contains an exception for temporary recess appointments made during “the recess” of the Senate.
The appeals court noted that other courts such as the Eleventh Circuit have permitted recess appointments not just in “intersession breaks” but also “breaks within a session (i.e., intrasession breaks) that last for a non-negligible time.” But President Obama’s “recess” appointments would not be valid even under that broader reading of his powers (as I previously explained).
Obama’s appointments of the NLRB members would be valid only under a still broader, radically expansive interpretation of the Recess Appointments Clause that would gut the Senate’s power to review Presidential appointments. The NLRB and the Obama administration argue that recess appointments can be made whenever “the Senate is not open to conduct business” — presumably including when the Senate goes home for the evening or even takes a lunch break — and even includes “periods in which the Senate holds pro forma sessions” but is not available to vote on nominations. This argument is of “recent vintage,” noted the appeals court, and is plainly contrary to the Recess Appointments Clause’s “meanings at the time of ratification” of the Constitution.
(The court’s opinion, issued on May 16, is quite lengthy: the majority opinion totals 102 pages, while the dissent runs 55 pages.)
In an earlier ruling in Noel Canning v. NLRB, the D.C. Circuit Court of Appeals reached the same conclusion as the Third Circuit, finding that there was simply no “recess” in existence to authorize the President to make these so-called recess appointments. In its January 25 decision, the D.C. Circuit also noted that Obama’s appointments were invalid for an additional reason: the Recess Appointments Clause only authorizes appointments to fill vacancies that “happen” during a recess, and even the Obama administration admits that the vacancies occurred before, rather than during, any recess.The Obama administration has recently filed a petition with the Supreme Court asking it to review and reverse the D.C. Circuit’s decision. Its petition contradicts prior administration claims by admitting that the D.C. Circuit’s ruling will, if allowed to stand, also invalidate other Obama administration “recess” appointments, such as the appointment of Richard Cordray to head the powerful Consumer Financial Protection Bureau (CFPB). Cordray’s appointment was as invalid as the NLRB appointments, since he was “recess” appointed by Obama during the same non-existent recess.
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The IRS didn’t just investigate groups based on their perceived political views, but also targeted groups for “educating on the Constitution and Bill of Rights” or advocating limits on government. The Washington Post reports:
At various points over the past two years, Internal Revenue Service officials targeted nonprofit groups that criticized the government and sought to educate Americans about the U.S. Constitution, according to documents in an audit conducted by the agency’s inspector general.
The documents, obtained by The Washington Post from a congressional aide with knowledge of the findings, show that on June 29, 2011, IRS staffers held a briefing with senior agency official Lois G. Lerner in which they described giving special attention to instances where “statements in the case file criticize how the country is being run.” . . . the agency revised its criteria a week later.
But six months later, the IRS applied a new political test to groups that applied for tax-exempt status as “social welfare” groups, the document says. On Jan. 15, 2012 the agency decided to target “political action type organizations involved in limiting/expanding Government, educating on the Constitution and Bill of Rights, social economic reform movement.,” according to the appendix in the IG report, which was requested by the House Oversight and Government Reform Committee and has yet to be released.
As Politico notes, the agency also scrutinized “groups focusing on specific issues including ‘government spending,’ ‘government debt,’ . . . and all groups that ‘criticize[d] how the country is being run.’”
The Wall Street Journal similarly reports:
The Internal Revenue Service’s scrutiny of conservative groups went beyond those with “tea party” or “patriot” in their names—as the agency admitted Friday—to also include ones worried about government spending, debt or taxes, and even ones that lobbied to “make America a better place to live,” according to new details of a government probe.
The investigation also revealed that a high-ranking IRS official knew as early as mid-2011 that conservative groups were being inappropriately targeted—nearly a year before then-IRS Commissioner Douglas Shulman told a congressional committee the agency wasn’t targeting conservative groups.
Such viewpoint discrimination is forbidden, even in allocating discretionary government benefits such as tax exemptions where certain types of content discrimination might be permissible. As the Supreme Court noted in a case involving a college’s discrimination against a religious magazine in access to student-activity funds, ”viewpoint discrimination is . . . an egregious form of content discrimination.” (See Rosenberger v. Rector & Vistors of the University of Virginia, 515 U.S. 819, 829 (1995).) The IRS employees responsible should be terminated.
In other news, the Obama administration declared on Thursday that the federal civil-rights laws Title IX and Title IV require colleges to adopt campus speech codes broader than those that have been previously struck down by some federal appeals courts. It also demands very stringent snooping and micromanagement of students’ private lives. Education writer Joanne Jacobs writes that the new rules are so broad that they effectively “make every student a sex harasser.” The civil-liberties group FIRE objects to the new rules here at this link. So the IRS is not alone in disregarding the First Amendment.
The IRS today acknowledged that it had wrongfully targeted Tea Party groups for heightened scrutiny. In trying to explain the agency’s mistake, IRS spokeswoman Lois Lerner reportedly stated “I’m not good at math” – an excuse that now seems to be going viral.
Given the smashing success of this phrase, we wonder whether the IRS will now use a few variations of it in the new Obamacare lawsuit that it’s facing. This lawsuit challenges the legality of the IRS’ unauthorized extension of the employer mandate to states that have refused to set up their own health insurance exchanges. The plaintiffs contend that Congress limited the employer mandate to participating states, and that the IRS has no power to rewrite the law.
Perhaps, rather than present a detailed legal defense of its position, the IRS will simply claim one or more of the following:
“We’re not good at taking no for an answer”;
“We’re not good at interpreting complicated sentences written by another government body, especially when that body is Congress”;
“We’re not good at dealing with states that aren’t team players, even if those states outnumber the states on our team.” (Thirty-three states have refused to participate in the exchange program); and/or
“We’re not good at Latin, so the phrase ‘ultra vires’ (‘beyond our powers’) is Greek to us.”
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