free speech

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.

Law professor David Post notes that the Department of Homeland Security is seizing entire domain names, not to protect national security, but to enforce run-of-the-mill copyrights.  He calls this an unconstitutional due process violation, noting that “80 websites . . . have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral [judge], that anything unlawful is going on at these sites.”

He also notes that Congress has not yet passed a bill that would have granted the federal government the specific authority to seize domain names.  (Senator Wyden of Oregon has put a hold on a bill known as COICA, the Combating Online Infringements and Counterfeits Act, that would allow U.S. courts to “seize” domain names belonging to U.S. or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities.)

Earlier, CEI’s Ryan Radia and 40 law professors criticized COICA, arguing that it contained “egregious constitutional infirmities,” and would lead to restrictions on speech that are unconstitutionally overbroad and violate First Amendment rules against prior restraints.  Professor Post also argues that the domain-name seizures would be “prior restraints on speech” that are “blatantly unconstitutional.”

CEI also took aim at another restriction on speech. Earlier, Ryan Radia and I criticized California’s overly broad law restricting video games for minors as a First Amendment violation, which is before the Supreme Court in the case of Schwarzenegger v. Entertainment Merchants Association.  A bunch of state attorney generals like Connecticut’s Richard Blumenthal (rated the worst attorney general in America by CEI) have filed a brief urging the Supreme Court to uphold the law.  (The idea that minors have First Amendment rights is not new, but rather has been recognized for generations, as I explained in my 2007 law review article — the Supreme Court first ruled that the First Amendment applied to the states in the 1925 Gitlow decision, and soon thereafter applied the First Amendment to minors in its 1943 Barnette decision.)

Over at the Technology Liberation Front, I discuss the “Combating Online Infringements and Counterfeits Act” (COICA), which the Senate Judiciary Committee unanimously approved last week. The bill would enable the U.S. Attorney General to obtain a court order disabling access to web domains that are “dedicated to infringing activities.”

These “rogue websites” are a real problem, as the website Fight Online Theft explains, so it’s a good thing that Congress is working to address them. However, some of COICA’s provisions raise profound constitutional concerns, and the bill lacks adequate safeguards to protect against the unwarranted suspension of Internet domain names, as the website Don’t Censor the Net argues. The bill also doesn’t provide a mechanism for website operators targeted by the Attorney General to defend their site in an adversary judicial proceeding. This week, a group of over 40 law professors submitted a letter to the U.S. Senate arguing that COICA, in its current form, suffers from “egregious Constitutional infirmities.”

To address these concerns, CEI is urging Congress to amend COICA to provide for more robust safeguards, including:

  • Providing a meaningful opportunity for Internet site operators to challenge before a federal court an Attorney General’s assertion that their site is “dedicated to infringing activities” prior to the suspension of their domain name;
  • Requiring that the Attorney General, upon commencing an in rem action against a domain name, make a reasonable and good faith effort to promptly notify the site’s actual operator of the action;
  • Clarifying the definition of an Internet site “dedicated to infringing activities” to ensure that websites with nontrivial lawful uses that facilitate infringing acts by third parties will not face domain name suspension if their operators:
    • Comply with legitimate takedown requests from rightsholders;
    • Do not receive a financial benefit directly attributable to infringing activities;
    • Do not design their site primarily for the purpose of facilitating infringing activities; and
    • Do not induce infringing activities.
  • Instructing the Department of Justice and federal prosecutors not to request that domain name registrars, registries, or service providers suspend domain names that have not been deemed to be “dedicated to infringing activities,” or otherwise unlawful, by a federal court; and
  • Requiring the Department of Justice to compensate domain name registrars, registries, and service providers for any reasonable costs they incur in the course of disabling access to infringing domain names.
  • Eliminating the provisions requiring the Department of Justice to publish a public listing of Internet Sites “alleged to be … dedicated to infringing activities” but that have not been the target of a successful in rem action by the Attorney General to disable access to their domain name.

Image credit: minkj’s flickr photostream.

Tonight have a drink and give a Tweet to the man who spent four years in an Egyptian jail, and remember that he is not the first, nor the last, blogger or writer to be silenced. Be thankful that we live in a nation where “highlighting inappropriate aspects” about your country won’t get us thrown in prison (it might actually get you a TV show).

After more than four years in an Egyptian prison, Kareem Amer was released, having finished out his sentence. Kareem was jailed as a result of articles he’d published on the Internet that were secular in nature and critical of the Egyptian government. He was officially charged with “spreading data and malicious rumors that disrupt public security,” “defaming the president of Egypt,” “incitement to overthrow the regime,” “incitement to hate Islam, and breach of public peace.” And finally, he was accused of “highlighting inappropriate aspects that harm the reputation of Egypt and spreading them to the public.”

The many people of various ideologies who threw their support behind Kareem will be celebrating his release tonight, including CEI. While you toast to the liberation of an innocent man, remember that there are many others who are currently being silenced and that freedom, even here in the United States, is something that requires constant and serious vigilance. There are more insidious ways to silence free speech than simply locking someone up in prison.

Intellectuals of the libertarian bent are often painted as being reactionary, inflammatory, and petulantly idealistic. In some cases, that might be true. Yet, what we seek to do, some with more finesse than others, is defend individual rights and freedoms from every threat, no matter how small it may appear.

Forcing artists, writers, or any individual to alter or eliminate his or her work, whether it is a video game, TV show, movie, play, or blog, is also a threat to free expression. It may not seem like much at first — and Americans would not stand for a blogger being thrown in jail simply for saying something the government didn’t like — however, they have stood by while state, local, and federal government officials, wielding their pens like knives, cut into our freedoms with a thousand tiny pen strokes. After enough of those cuts, the fabric that maintains our liberty in this country and separates us from Egypt begins to fall apart.

They silenced Kareem because he said things they didn’t like. There are ways even in the “liberal West” in which one group can use the government to silence or limit the speech of another group or individual, simply because they don’t like what they hear (for example, the recent discussions about reviving the Fairness Doctrine.) That is why, while we celebrate one man’s freedom, we must remember that the fight is ongoing and that the best way we can defend liberty around the world is to defend our right to speak up here at home.

Image credit: MohammedMaree ???? ???? mar3e’s flickr photostream.

Associate Director of Technology Studies Ryan Radia gives his take on a Supreme Court case concerning California’s ban of violent video game sales to minors. Keeping such things away from children is traditionally a job for parents. Have a listen here.

The case has implications that reach far beyond video games. Because censorship is such a subjective thing, allowing it could have a chilling effect on forms of expression from art to music to film. The First Amendment specifically prohibits the government from sanitizing culture. That is up to the people themselves.

Photo credit: bhschenker’s flickr photostream.

The Hill:”Senate fails to advance campaign finance bill

The First Amendment: “Congress shall pass no law… abridging the freedom of speech.”

Good news for anyone who wants to engage in political speech. But how sad that this happened because of politics, not principle.

It was mostly Democrats who favored the DISCLOSE Act. And according to today’s Senate vote, it was only Democrats who favored the bill. But Republicans are no heroes on this issue. Don’t believe their posturing. If the political winds were currently favoring Democrats, Republicans would be working their tails off to pass similar legislation.

The primary effect of campaign finance regulation is to stack the rules of the game in favor of incumbents. Both parties know this. And both parties will seek to use campaign finance regulation to their advantage however they can.

The Supreme Court doomed Chicago’s handgun ban Monday by ruling 5-to-4 that the Second Amendment applies to state and local governments like Chicago, not merely the federal government.  (Most guarantees in the Bill of Rights are deemed so fundamental that they apply to both state and federal governments, but a few rights deemed trivial, like the right to a jury trial in lawsuits seeking over $20, only are applied by the Courts to the federal government, not the states.)  In 2008, the Supreme Court ruled that the Second Amendment protects the individual right to possess a handgun in a federal enclave, in striking down a handgun ban in Washington, D.C., in District of Columbia v. Heller.  Chicago’s ban is quite similar to the one found unconstitutional in Washington, D.C., so the Supreme Court’s ruling Monday in McDonald v. City of Chicago dooms Chicago’s gun ban.

In 2009, President Obama’s first Supreme Court nominee, Sonia Sotomayor, claimed before her confirmation to accept the Supreme Court’s ruling in Heller as binding precedent.  But on Monday, she joined a dissent by the Supreme Court’s four liberal justices calling for the Heller decision to be overruled.  Second Amendment scholar David Kopel says that Sotomayor was not candid, noting that her opinion “contradicted” what she told the Senate before the Senate confirmed her to the Supreme Court.  It is likely that future liberal Supreme Court nominees will pretend to support gun rights until they are confirmed, then vote against such rights once on the Court.

Obama’s current Supreme Court nominee, Elena Kagan, lumped the NRA together with the KKK as “bad guy orgs” while serving in the Clinton administration, suggesting that she will consistently rule against gun owners if her nomination is approved by the Senate.  Kagan failed to defend federal laws protecting crime victims while serving as Solicitor General.

As a Harvard dean, Kagan blocked the military from recruiting, in defiance of a federal law requiring access for military recruiters.  Kagan claimed her opposition was based on the military’s exclusion of openly-gay soldiers, not hostility to the military in general, but this is hard to square with the fact that she had no problem letting the Saudis sponsor an Islamic studies program at Harvard Law School, even though the Saudis flog and execute gay people, and she had no problem serving in the Clinton administration, even though Clinton signed into law both the restrictions on gays in the military she claimed to object to (the Don’t Ask, Don’t Tell policy), and the ban on federal recognition of gay marriages contained in DOMA.

The Supreme Court Monday also ruled that religious clubs can be forced by colleges to admit atheists and others who disagree with the club’s religious perspective as members, as long as the college requires this as part of a general policy of banning clubs from discriminating based on any characteristic.  The Supreme Court’s four “conservative” justices dissented against this ruling limiting the First Amendment’s freedom of association, while moderate Anthony Kennedy joined the Supreme Court’s liberal bloc in ruling against the religious clubs in Christian Legal Society v. Martinez.

In Free Enterprise Fund v. PCAOB, the Supreme Court, in a 5-to-4 ruling, cut back on restrictions on the ability to remove high-ranking bureaucrats, ruling that provisions of the Sarbanes-Oxley law that kept anyone from removing members of the Public Company Accounting Oversight Board except for willful misconduct unconstitutionally infringed on the constitutional separation of powers, which requires that important government employees be subject to some degree of accountability to higher-ups in the executive branch.  However, the Supreme Court left intact the bulk of the Sarbanes-Oxley law.  The red tape adopted by bureaucrats under Sarbanes-Oxley has driven many IPOs and American jobs overseas.  The red tape costs the economy $35 billion a year, according to the American Electronics Association, and it did nothing to prevent the mortgage meltdown, Bernard Madoff’s $50 billion fraud, or the faulty valuation of sub-prime mortgage-backed securities that helped spawn the financial crisis.

The Supreme Court overturned a ruling that allowed business methods to be treated as exclusive property under the patent laws, but did not definitively rule out the patenting of business methods, in Bilski v. Kappos.

Separate votes” are expected “in the House and Senate later this week on legislation repealing the ‘Don’t ask, don’t tell’ restriction on gays serving openly in the military.”

I wrote earlier about the “Don’t Ask, Don’t Tell” (DADT) policy here.

Law Professor Dale Carpenter discusses the legislation to overturn DADT here.

I discuss some of the problems caused by DADT here; a commenter responds here. Cost-benefit analysis seems to support repeal of DADT.