Thomas Erskine defended Thomas Paine after authorities decided to persecute him for the radical ideas contained in his Rights of Man. Here, Erskine tells a story that explains to Paine’s prosecutors why someone who threatens force during an argument is almost surely wrong:
You must all remember, gentlemen, Lucian’s pleasant story: Jupiter and a countryman were walking together, conversing with great freedom and familiarity upon the subject of heaven and earth. The countryman listened with attention and acquiescence while Jupiter strove only to convince him; but happening to hint a doubt, Jupiter turned hastily around and threatened him with his thunder. ‘Ah, ha!’ says the countryman, ‘now, Jupiter, I know that you are wrong; you are always wrong when you appeal to your thunder.’
Political “commentator Andrew Bolt ‘was found guilty Wednesday of breaking Australian discrimination law by implying that fair-skinned Aborigines chose to identify as indigenous for profit and career advancement.’ A judge ‘said he will prohibit reproduction of the offending articles,’ and ‘Bolt and his publisher must meet with the plaintiffs to discuss appropriate court orders that would reflect the judgment.’”
This is an extremely damaging blow to free speech. The problem of fraud in affirmative action programs is neither new nor rare. People who are not minorities often pretend to be minorities in order to obtain benefits under affirmative-action programs and racial set-aside schemes. (The Massachusetts Supreme Court upheld the firing of two brothers who pretended to be black to receive preference in hiring). And people often push the envelope in claiming minority status when they have only a small fraction of non-white or minority ancestry. (For example, beneficiaries of affirmative action included people who were only one-quarter Hispanic, under a consent decree in the U.S. v. New York City Board of Education case.)
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. [click to continue…]
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.
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.”
A Minnesota school district is “laying off 94 teachers” even while spending thousands of dollars to send “a delegation” of teachers to an annual “White Privilege Conference” with Marxist speakers, notes the National Review:
“This will cost the district $160 a day for each teacher plus $125 a day for the substitutes who will handle their classes while they are away, learning ‘how white privilege, white supremacy, and oppression affects daily life.’ Other cash-strapped districts will also be sending delegations. The keynote speaker will be Roxanne Dunbar-Ortiz,” who was “part of the Venceremos Brigade in Cuba. . .Last year’s speaker recommended looking to Hugo Chavez’s Venezuela for ‘exciting progressive developments.’ The sponsors of this educational event include the University of Minnesota,” and the private institutions “Hamline University, Gustavus Adolphus College,” and “Augsburg College, among others.”
The Seattle schools, a past participant in the White Privilege Conference, recently insisted that Easter eggs be referred to as “spring spheres” so as not to offend non-Christians. In 2007, the Seattle Schools illegally used federal funds to send students to the White Privilege Conference. (One of the Conference speakers says that Christianity has far too much influence in our society.)
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.
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.”
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.
Did the Citizens United decision place corporations ahead of democracy? Activist Annie Leonard thinks so. CEI’s Communications Coordinator Lee Doren disagrees. Leonard views a strong government as an opposing force to corporate power. Doren points out in a new video that the more government does, and the more it spends, the more companies will flock to Washington to get a piece of the action. If you want to keep money out of politics, then keep politics out of our money.
Watch Lee’s video, “Story of Citizens United v. FEC, The Critique,” below:
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