first amendment

In a small but growing number of schools, you have to invite all the kids in your child’s class to her birthday party, even if your child doesn’t want to invite them. For example, the student handbook of the John F. Kennedy Elementary School in West Berlin, New Jersey makes this demand: “If a student is inviting his/her classmates to a party, he/she must invite all of the students in the class or all of the female students or all of the male students. When invitations are given in school, students may not arbitrarily invite or exclude classmates from parties.”  These mandates may make sense to wealthy, privileged liberals with big houses, who don’t realize that a parent with a small house could not accommodate the entire class or even half of it. But there is no way I could accommodate more than a few kids at my daughter’s birthday party, since I live in a little two-bedroom house.

Many of these bossy rules dictating who kids can invite to their own birthday parties are based on the weird idea that inviting only popular children is a form of bullying.  Using politically-correct psychobabble about “power relationships,” some psychologists have sought to redefine bullying to include wielding “popularity,” not just violence.  For example, a recent survey by a clinical psychologist at the University of Virginia, Dewey Cornell, defined bullying as “the use of one’s strength or popularity to injure, threaten or embarrass another person on purpose,” and defined it to include “verbal” or “social” behavior, not just “physical” assaults and intimidation.  So if you are “embarrassed” by a “popular” person you can accuse them of bullying. Still worse is the nobully.com web site, which defines even “eye rolling” as a form of bullying, so if you roll your eyes at a jerk, they can accuse you of “bullying.”  As someone who experienced real, violent bullying as a child, I think these overbroad definitions of bullying trivialize actual bullying.

This mindset is typical of the current Administration, which issued a letter to school officials in October 2010 that falsely implied that bullying is already banned by federal law (contrary to federal court rulings), and defined bullying in ways that would violate free speech and disregard basic principles of federalism.
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California’s ban on the sale or rental of violent video games to minors has been struck down by the Supreme Court as a violation of the First Amendment in a 7-to-2 vote. The only dissenters were Justices Breyer and Thomas. The opinion, authored by Justice Scalia, is here. CEI joined in an amicus brief in support of the challengers, and CEI’s Ryan Radia wrote an op-ed about the case you can find here. As Radia noted, “a comprehensive survey of the major scientific literature . . . found no established link between exposure to media violence and aggressive feelings in children . . . juvenile violent crime fell 36 percent . . . even as the popularity of video games skyrocketed.”

Cato Institute’s Ilya Shapiro, who co-authored an influential amicus brief in the case, had the following to say about the decision in Brown v. Entertainment Merchants Association:

The Supreme Court scored an epic win for the First Amendment in striking down California’s prohibition on selling violent video games to minors.  The law was both overly broad—sweeping in a wide variety of games based on no objective standard and no age-based gradations—and underinclusive—with no restrictions on other types of media.  With a few strictly drawn exceptions for historically unprotected speech—obscenity, incitement, fighting words—government lacks the power to restrict expression simply because of its content.  And a legislature cannot create new types of unprotected speech simply by weighing its purported social costs against its alleged value.

“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” Justice Scalia points out in his majority opinion.  “But these cultural and intellectual differences are not constitutional ones.”

Moreover, the Court, citing Cato’s amicus brief, described how each generation’s new media produces consternation from adults who want to avoid the “seduction of the innocent” (to borrow a phrase from the attack on comic books in the 1950s).  In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency.  Later, Congress held hearings on the cartoon menace, which prompted the comic book industry to voluntarily adopt a ratings system. Backlash against certain kinds of movies and music caused those respective industries also to adopt voluntary ratings systems. And the video game industry too adopted an effective and responsive ratings system after congressional hearings in the early ‘90s. Not only is all this hand-wringing overwrought, but self-regulation and parental oversight have worked—evidence from the Federal Trade Commission shows that the voluntary ratings system works more effectively with video games than with any other medium—and they avoid First Amendment thickets.  Adding a level of governmental control, even if were constitutional, would be counterproductive.

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Last year, a New Mexico court issued a domestic-violence restraining order against David Letterman on behalf of a deluded woman who had never met David Letterman, but nonetheless believed he was harassing her through her TV and the content of his TV show, which supposedly contained “coded messages.” (When I was at a non-profit law firm, similarly kooky people would contact me claiming that the CIA, or their ex-spouse, was monitoring them through a chip implanted in their brain. I turned them away, a sign of skepticism which I guess makes me unfit for the bench.) Despite nationwide ridicule, the trial judge defended his restraining order, making clear that he had read the plaintiff’s claims and had not made a mistake, before eventually dissolving it when the ridicule only increased.

(Granting all requests for domestic-violence restraining orders  — not merely the many that are well-founded — is wrong, but it is considered the politically-correct thing to do, since judges learn at judicial seminars put on by advocacy groups — and now subsidized by the Justice Department — that it is sexist to be skeptical of a claim of domestic violence. Many judges grant substantially all requests, and it seems as if no judge has ever lost his job for being too eager to grant such requests — although a few judges have been removed from the bench or pilloried in papers like the Washington Post for denying a request in a case where the victim later was harmed, even if the victim failed to document her claims or support them in detail at the time she requested the restraining order. The Post attacked one judge who had denied some requests — he granted about 90 percent of all requests that came before him, while denying about ten percent — while citing figures that showed that his colleagues in Montgomery County, Maryland, granted about 99 percent of the orders requested.)

The New Mexico courts seem to have learned little since then. Recently, a court commissioner recommended, and a court was expected to issue, a restraining order against a man’s anti-abortion billboard, in response to a request by his ex-girlfriend. The billboard did not mention her name, but lamented that abortion had supposedly taken the life of the man’s unborn child. Greg A. Fultz put up a billboard showing himself holding what appears to be empty space, with the words “This Would Have Been A Picture Of My 2-month Old Baby If The Mother Had Decided To Not KILL Our Child!” and some endorsements, later removed, from pro-life groups, including the words “PRO LIFE” and “RIGHT TO LIFE.”

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Post image for Senators Seek to Censor Mobile App Stores, Disregarding Public Safety and the Constitution

In the latest example of big government run amok, several politicians think they ought to be in charge of which applications you should be able to install on your smartphone.

On March 22, four U.S. Senators sent a letter to Apple, Google, and Research in Motion urging the companies to disable access to mobile device applications that enable users to locate DUI checkpoints in real time. Unsurprisingly, in their zeal to score political points, the Senators — Harry Reid, Chuck Schumer, Frank Lautenberg, and Tom Udall — got it dead wrong.

Had the Senators done some basic fact-checking before firing off their missive, they would have realized that these apps actually enhance the effectiveness of DUI checkpoints while reducing their intrusiveness. And had the Senators glanced at the Constitution — you know, that document they swore an oath to support and defend — they would have seen that sobriety checkpoint apps are almost certainly protected by the First Amendment.

While Apple has stayed mum on the issue so far, Research in Motion quickly yanked the apps in question. This is understandable; perhaps RIM doesn’t wish to incur the wrath of powerful politicians who are notorious for making a public spectacle of going after companies that have the temerity to stand up for what is right.

Google has refused to pull the DUI checkpoint finder apps from the Android app store, reports Digital Trends. Google’s steadfastness on this matter reflects well on its stated commitment to free expression and openness. Not that Google’s track record is perfect on this front — like all firms, it’s made mistakes from time to time — but it’s certainly a cut above several of its competitors in the defending Internet freedom.

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The topic of bullying is in vogue, and President Obama is taking advantage of that: “President Barack Obama has acknowledged he was taunted as a child over his big ears and unusual name, as he opened a White House summit on preventing bullying” a few days ago. Meanwhile, administration officials are trying to stretch the federal law against sex discrimination, Title IX, to outlaw bullying aimed at gay and lesbian youth, although the Administration has no statutory basis for doing so.

In essence, as I explain over at Minding the Campus, they have invented a federal law against the bullying of gay youth, although Congress has yet to pass a ban on either homophobia or bullying. To do this, they have so stretched the definition of sexual harassment as to create a serious conflict with the First Amendment and federal court rulings, as I explain in greater detail at this link.

Federal law doesn’t ban bullying as such — that is a matter addressed by state law. All states ban assault and battery, and some states have laws specifically aimed at bullying in the schools.

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The Obama administration’s recent push against “bullying” resulted in a letter to school officials that undermines both free speech and due process. On October 26, a political appointee in the Education Department sent a “Dear Colleague” letter to the nation’s school boards claiming that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination. But those laws only ban discrimination based on sex or race — not bullying in general. The letter from the Assistant Secretary of Civil Rights Russlynn Ali defined “harassment” so broadly as to reach both speech protected by the First Amendment, and conduct the Supreme Court says does not legally qualify as harassment.

The letter left the incorrect impression with some reporters that federal statutes already ban bullying and sexual-orientation-based harassment. For example, Keen News Service reported that the Education Department “issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying,” including “sexual harassment of LGBT students.” The letter was part of the Obamas’ PR campaign against bullying, that featured a “a high-visibility conference on bullying prevention March 10, with the President and first lady” and the introduction by Obama backers of “several LGBT-inclusive bills designed to address bullying of students.”

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A Connecticut legislator is seeking to restrict the speech of employers on “religious or political” topics in pending legislation  (House Bill 5460). The bill reads, “No employer, and no . . . representative . . . of such employer, shall require its employees to attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.” This content-based regulation of speech violates the First Amendment by singling out political and religious speech for special restrictions.

Employers have free speech rights even in the labor-union context, where free speech protections are at their weakest for employers under the Gissel line of cases. For example, the federal appeals courts have ruled that the First Amendment protected a manager telling his subordinates that they lost benefits by voting for a union (Roper Corp. v. NLRB (1983)), and an employer’s assertion that unionization, by increasing costs, might lead to a plant’s closing in the future (NLRB v. Douglas Division (1978)), even though these statements were very offensive to pro-union employees. These rulings apply with added force to core political and religious speech.

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Post image for Did Wisconsin Police Violate the First Amendment through Selective Enforcement of Limits on Protests?

Ordinarily, protesters who tried to occupy the Wisconsin Capitol Building would be swiftly arrested and removed. But this weekend, police in Madison, Wisconsin, not only allowed pro-union protesters to stay and sleep in the state Capitol Building, they joined them.

Wisconsin union supporters applauded this lawlessness. One exulted, “Police have just announced to the crowds inside the occupied State Capitol of Wisconsin: ‘We have been ordered by the legislature to kick you all out at 4:00 today. But we know what’s right from wrong. We will not be kicking anyone out, in fact, we will be sleeping here with you!’ Unreal.”  (Days later, the police finally told the protesters to leave the Capitol Building, but “didn’t evict“ them at that time, and protesters were still camped out in the Capitol Building on the morning of March 1, with their garbage and trash littering the building and the surrounding areas. By the time the police finally took grudging action to limit the protesters’ access to the building, it was during business hours — when the building has traditionally been open to the public. So a union lawyer then promptly got a temporary restraining order that, with little explanation, forced Wisconsin officials to reopen the building to the public during business hours, thus making it harder for them to clean up the building and prevent future occupations.)

This foot-dragging by police and their selective enforcement of the law was a violation of federal court rulings, like Dwares v. City of New York (1992), that require police to enforce the law in a viewpoint neutral manner. In Dwares, police were sued for refusing to arrest people who attacked flag-burners because they disagreed with the flag-burners’ message — even though police ordinarily enforce laws against assault.

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In The Atlantic, former ACLU board member Wendy Kaminer discusses the New York Times’ refusal to correct repeated falsehoods in its editorials about the Supreme Court’s Citizens United decision, and its decision to repeat those false claims even after their falsity was pointed out by attorneys and a constitutional law professor. The Times has repeatedly insinuated that the Supreme Court overturned a 1907 federal law banning corporate contributions to political campaigns when it actually did no such thing.

The Citizens United ruling allowed corporations and unions to pay for their own political ads attacking politicians, but it did not allow them to make campaign donations to congressmen, or strike down the Tillman Act, a 1907 law barring such donations. The Times also falsely implied that the Supreme Court had struck down “disclosure requirements“ for campaign donations.

Earlier, law professors wrote at The Volokh Conspiracy about the New York Times’ refusal to print a letter to the editor pointing out a mistake in a recent Times editorial about federal appeals court rulings dealing with business and arbitration of legal disputes. The law professors also argued that the Times persistently misstated whether it is permissible to detain enemy combatants.

I have previously written about the New York Times’ failure to correct repeated falsehoods it printed in its “news” coverage of the Supreme Court’s 2007 Ledbetter v. Goodyear decision, which you can find at this linkTimes reporters such as Linda Greenhouse made it sound like the plaintiff in that case, Lilly Ledbetter, had been arbitrarily prevented by the Supreme Court from suing despite only recently learning of the pay discrimination around the time she retired. Actually, as lawyers have repeatedly pointed out, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. No wonder the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her lawsuit as untimely.

As the National Journal’s Stuart Taylor noted, Ledbetter brought her discrimination claim only after the supervisor she accused of discrimination had died, and shortly before she retired, and she knew of the pay disparity she later complained about for at least five years before filing an EEOC complaint. Thus, she was unable to qualify for an extension of the 180-day deadline for suing based on lack of awareness of the pay disparity.

The New York Times editorials repeatedly makes false claims about court rulings to try to depict the Supreme Court as “pro-business.” But it is not in fact pro-business, as I previously explained here.

Indeed, the Supreme Court is more hostile to business than most of the lower federal courts, and is generally hostile to employers in discrimination cases.

Discrimination and politically-correct blinders can be deadly. It was obvious in the aftermath of the Fort Hood shootings that the killer was inspired by Islamic extremism. Obvious, that is, to anyone but officials in the Obama administration, who continue to cling tightly to a culture of political correctness and preferential treatment that helped make the shootings possible.

Nidal Hasan shot dead 12 soldiers and a civilian at Fort Hood, while shouting “Allahu Akbar.”  But the Obama administration’s inquiry into the shootings falsely suggested Islamic extremism was not a factor in the shootings.  Its report on the Fort Hood massacre did not even “mention the words ‘Islam’ or ‘Muslim’ once,” referring to the killer simply as the “alleged perpetrator.” Instead, it claimed the tragedy resulted from “bureaucratic shortcomings” in the “sharing of information.”

But now Senators like Joe Lieberman and Susan Collins are taking issue with that whitewash report: “the federal government needs to drop the political correctness and call violent Islamic extremism what it is, according to a newly released report on the Fort Hood shooting by the Senate Committee on Homeland Security and Governmental Affairs.”

The shooter’s Islamic extremism was obvious.  Prior to the shooting, he had said that Muslims should rise up against the military, “repeatedly expressed sympathy for suicide bombers,” was pleased by the terrorist murder of an army recruiter, and engaged in hate-speech against non-Muslims, publicly calling for the beheading or burning of non-Muslims, and talking “about how if you’re a nonbeliever the Koran says you should have your head cut off, you should have oil poured down your throat, you should be set on fire.”  “In addition, Hasan openly had suggested revenge as a defense for the 9/11 attacks, defended Osama bin Laden, and said his allegiance to his religion was greater than his allegiance to the constitution.”

But the military did nothing to remove him from a position where he could harm others. Although his views were common knowledge, “a fear of appearing discriminatory . . . kept officers from filing a formal written complaint,” the Associated Press noted. Moreover, “a key official on a review committee reportedly asked how it might look to terminate a key resident who happened to be a Muslim,” as NPR noted.  Instead, the military effectively exempted Hasan from rules of conduct that apply to everyone else, in order to promote its conception of “diversity.”

As military attorney Thomas Kenniff notes, there was a climate of “obsessive political correctness” in the military. As Major Shawn Keller pointed out, in a column entitled “An Officer’s Outrage Over Fort Hood.” “There was no shortage of warning signs that Hasan identified more with Islamic Jihadists than he did with the US Army. . .But just like September 11, those agencies and individuals charged with keeping America and Americans safe failed to connect the dots that would have saved lives. Jihadist rhetoric espoused by Hasan was categorically dismissed out of submissiveness to the concepts of tolerance and diversity. . . . the leaders in Hasan’s chain-of-command failed to act . . . out of fear of being labeled anti-Muslim and receiving a negative evaluation report.”

Indeed, even after the shootings, government officials worried more about the fate of “diversity” than about the lives of their troops:  “Our diversity, not only in our Army, but in our country, is a strength,” Army Chief of Staff George Casey told NBC’s Meet the Press. “And as horrific as this tragedy was, if our diversity becomes a casualty, I think that’s worse,” Casey said.

The military is not like the outside world.  In the civilian world, hate speech and anti-American speech are protected by the First Amendment (under Supreme Court decisions like R.A.V. v. St. Paul, and court rulings like Dambrot v. Central Michigan University).  But in the military, soldiers get punished for bigotry or disloyalty all the time – but not Nidal Hasan, who escaped any punishment due to obvious favoritism.

In court cases like Goldman v. Weinberger, the Supreme Court has said that soldiers have fewer First Amendment rights than civilians. The military cites this all the time when it wants to punish soldiers for politically-incorrect speech, like the soldier who was punished for a sexist insult about liberal Congresswoman Pat Schroeder (D-Colo.) in the aftermath of the Tailhook Scandal. But the military did not apply its policies against seditious speech and hate-speech to Hasan, because of political correctness. Instead, it kept him working with injured American veterans, a position for which he was manifestly unfit.

Obama could barely bring himself to mention the tragedy, much less express sympathy for the victims, in his initial remarks about it, in which he buried any expression of sympathy in the middle of a speech filled with “wildly disconnected” ramblings about an unrelated topic, starting with a “joking shout-out.”  Even for liberal journalists, President Obama’s initial response to the tragedy was embarrassing.  Even the liberal Boston Globe, which endorsed Obama in 2008, chided the President for a speech lacking in ”empathy” for the victims.  Despite the shooter’s open hatred towards America, the military, and America’s non-Muslim majority, Obama’s remarks insisted that the shooter’s motive for the killings was unknown.

The Obama Administration then did its best to hide the role of political correctness in spawning the tragedy by appointing two supporters of racial preferences in the military – former Army Secretary Togo West and Admiral Vernon Clark – to handle the federal inquiry into the tragedy. This was like appointing a fox to guard a henhouse. At the conclusion of their inquiry, West and Clark came out with a ridiculous report that did not even mention the word “Islam” or “Muslim,” much less address the Islamic extremism that motivated the shootings.  Based on these men’s track record, the Obama Administration expected – and wanted – exactly such a whitewash report.

“Clark was such an enthusiast for ‘diversity’” that “he redefined the Navy’s concept of special minorities to include religious (read Muslim)” groups, not just racial minorities. Similarly, Togo West,  a supporter of restrictions on politically-incorrect speech, “never saw an affirmative action policy or minority preference policy he didn’t like,” and  was such a diversity zealot that he filed an amicus brief in an affirmative-action case that didn’t even involve the military, unsuccessfully urging the Supreme Court to uphold racial quotas in the public schools – something it instead struck down in Parents Involved in Community Schools v. Seattle School District). Clark’s devotion to preferential treatment was reflected in his order “that the Navy increase the number of minority candidates for officer commissions by 25 per cent,” which “led to a double standard” at “places like the Naval Academy at Annapolis, where the entry standards for minorities are noticeably lower than for white applicants.”

Even today, military leaders remain wedded to the concept of “diversity” at the expense of equal treatment and the Constitution, engaging in racial discrimination at the military academies in the name of “diversity,” including mandating racial preferences in admissions. The Naval Academy illegally retaliated against a faculty member who criticized its use of racial preferences in admissions (the Naval Academy listed “diversity”as its “number one priority,” above learning), violating the First Amendment and anti-retaliation provisions contained in the civil-rights laws.

Military leaders, catering to liberal congressional leaders and the Obama administration, cling tightly to the “diversity” dogma, demanding that those in the military keep silent rather than saying things that might call into question their ”diversity” obsession:

“Naval Academy senior commanders decided during the World Series to remove two Midshipmen from the color guard that appeared. What was their offense? The color guard was deemed too white and too male.  .  .Two members of the color guard were removed and replaced by a Pakistani and a woman to achieve the requisite ‘diversity.’ The Pakistani unfortunately forgot his cap and shoes. He himself had to be replaced at the last minute by one of the two middies removed earlier. The midshipmen have reportedly been ordered not to speak of these events.”

I am definitely not arguing for a ban on Muslims in the military, or discrimination against them — quite the opposite. The military has a critical shortage of, and need for, translators who speak languages like Pashto (spoken in Afghanistan), Urdu (spoken in Pakistan) and Arabic. These translators are often Muslim, and they should be welcome in the military. But neither should the military exempt Muslims from the rules of conduct imposed on soldiers of other religions.  That is an insult to the principle of equality under the law. Hasan’s anti-American rants would not have been tolerated even in the armies of Muslim countries allied with the U.S., like Albania.