Rights

Not Cakes, But Advocacy: The Tenth Circuit Rules That Compelled Expression Is Constitutional

/ Jack Marshall / 35 Comments

compelled speech

I will state up front that I am confident that this decision will get to the U.S. Supreme Court, and that if and when it does, it will be reversed.

The 10th U.S. Circuit Court of Appeals at Denver ruled 2-1 that website designer Lorie Smith and her company, 303 Creative, violated a Colorado law by refusing to create a website celebrating a same sex union. She was represented by Alliance Defending Freedom, a conservative Christian nonprofit, who also represented Christian baker Jack Phillips, who refused to bake a cake for a same-sex wedding. There is a material difference, however, between a cake and a website. A cake is not generally thought of as expression, and there is a colorable argument that a bakery is a public accommodation. But Smith, whose company designs wedding websites, argues that forcing her to make one that supports a same-sex marriage violates her religious beliefs. It isn’t frosting and cake shades at issue, it’s words.

A Colorado public accommodation law bars public accommodations from refusing to provide equal access to services because of sexual orientation. The law’s communication clause also says public accommodations cannot publish any communication indicating that full access to services will not be provided because of sexual orientation. The appeals court majority decreed that neither provision violates Smith’s free speech and free exercise rights under the First Amendment, even though it acknowledged that Smith’s websites are pure speech that involve her unique creative talents. But, the Court claims, indulging in an “it isn’t what it is” rationalization, Colorado “has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace…We agree with the dissent that a diversity of faiths and religious exercise, including appellants’, ‘enriches’ our society…Yet a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services.”

This opinion is way, way over the traditional judicially-drawn line between compelling public accommodations to be equally accessible to all and compelling artistic expression. Under this theory, a singer who performs at weddings would have to warble at a same-sex ceremony, even if her faith held that such a ceremony was a sin.

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More On The “Fuck Biden” Ethics Train Wreck: Is Andrea Dick An Ethics Hero?

/ Jack Marshall / 3 Comments

Dick

I’ll be uncharacteristically brief: I think she is.

As I stated in the previous post, her conduct was unethical. She was uncivil and disrespectful to her neighbors. Posting “Fuck Biden” signs is protected speech, but it is still unethical speech. She isn’t doing any good by posting such rhetoric. She setting out to annoy and irritate people, while being verbally assault to her nation’s leader. She has no defense, other than the claim that she has a right to be an asshole. And indeed she has.

However, now that the government is attempting to abridge her rights of free expression and speech, and using an inapplicable obscenity ordinance to do it, she has a patriotic, legal and ethical duty to oppose the efforts to silence her even though she should have shut up in the first place.

Ironically, although her signs and banners represent unethical behavior, she has created an obligation for herself to stand behind them. This will take courage and resources, but it appears that she will not be intimidated. Good. Her abuses of free speech must be protected lest free speech itself be diminished.

Andrea may be an asshole, but she is not a weenie, like so, so many Americans of far greater power and influence than she who have been intimidated into apologizing and retracting their political or social views. We have little to fear from assholes. America was built by assholes—stubborn, ornery iconoclasts who marched to their own drummers and didn’t care who liked it. Weenies, however, are an existential threat. Weenies strip away our rights by being too timid to fight for their own.

Andrea Dick is now an Ethics Hero. After she wins, she can prove she’s not an asshole by taking down her “Fuck Biden” signs because she decides to, and not because the government demands it.

Andrea Dick And The “Fuck Biden” Ethics Train Wreck

/ Jack Marshall / 15 Comments

fuck-biden-flag

I was just thinking of neighbors like Andrea Dick yesterday, after I walked my politically tolerant dog Spuds past the many obnoxious lawn signs that have proliferated in my little corner of Alexandria, Virginia. There is, of course, the large, hand painted wooden sign reading “Black Lives Matter” that is festooned with rainbow flags and a full size suit of armor for some reason. That’s been an eyesore for more than a year. Then there are the moronic “End Racism” virtue-signaling signs—“End Stupidity” would be equally effective—and that list of facile progressive nostrums, including “No human is illegal.” You know, this one:

love-is-love

Well aren’t you wonderful! There is also that oldie but goodie, “Dissent is Patriotic,” whatever that means. There are several versions of this one…

Our America

All of them are the equivalent of the homeowner standing on his or her front lawn and preaching through a megaphone, and in the cases of the homes that post signs like this one…

Welcome sign

…the implication is that all the other houses nearby are full of greedy, racist bigots. All the signs offend me. The entire practice of using one’s property to preach, proselytize or politic is offensive. Yes, it’s protected speech, and using speech like that is abusing the right.

Andrea Dick is an angry supporter of former President Donald J. Trump and detests President Biden, so she has banners and signs expressing these view on her New Jersey house and lawn, including “Don’t Blame Me/I Voted for Trump” and several banners and signs with the message in the graphic under the post’s title. These are also ugly and offensive, but no more so than the virtue-signaling blather I have to see every day.

But her neighbors complained, so local officials first asked her to take down several of the banners that they said violated an anti-obscenity ordinance. She refused, and now she is resisting a judge’s order that she do so or face $250 fines every day the “Fuck Biden” banners and signs remain. Andrea Dick is pledging to fight it in court on free speech grounds.

“It’s my First Amendment right,” she said in an interview on Monday, “and I’m going to stick with that.”

Ethics Verdicts:

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Follow-Up: Guess Who Is Telling FaceBook Which “Disinformation” To Censor?

/ Jack Marshall / 5 Comments

jen_psaki_hunter_biden_russian_disinfo_07-17-2021

With this post. a follow-up to this one regarding the hypocritical and ominous Presidential attack on vaccine-related “disinformation” on Facebook, Ethics Alarms ends the suspension of George Washington University law professor Jonathan Turley, who writes the generally excellent “Res Ipsa Loguitur” blog and who has distinguished himself during the 2016 Post Election Ethics Train Wreck for refusing to follow the unethical lead of his biased and Trump-Deranged colleagues in law and academia, and having the courage to point out many of their worst betrayals of the public trust. I suspended the professor at the beginning of June for carelessly advancing a favorite Democratic party Big Lie on his blog, that a media recount after the 2000 election showed George W. Bush had actually lost the popular vote in Florida, and thus Al Gore was the rightful winner of the Presidency. I wrote, “Ethics Alarms is giving him a month’s suspension, or until he fixes his error and apologizes.” Well, he sort of fixed the error but never apologized, so I made the suspension six weeks. I’m happy to be able to reference his blog again, and as a happy coincidence, one of his recent posts nicely supported what I had just written.

Turley pointed to White House Press Secretary Jen Psaki admitting that the Biden administration is working with Facebook to flag “problematic” posts that “spread disinformation” on the Whan virus vaccine and related matters. She had said that the Administration has created “aggressive” policing systems to spot “misinformation” to be “flagged” for the social media companies. He wrote in part,

“Obviously, anyone can object to postings. There is a greater danger when the government has a systemic process for aggressively flagging material to be censored. The real problem however is with the censorship system itself. We have seen how there needs to be little coordination between political figures and the media to maintain controlled narratives in public debates and discussions.”

By “little” the sometimes obsessively cautious professor means “none.” He continues,

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Ethics Quote Of The Month: Andrew Sullivan

/ Jack Marshall / 10 Comments

CRT2

“[T]he sudden, rapid, stunning shift in the belief system of the American elites…has sent the whole society into a profound cultural dislocation. It is, in essence, an ongoing moral panic against the specter of “white supremacy,” which is now bizarrely regarded as an accurate description of the largest, freest, most successful multiracial democracy in human history.”

—-Blogging pioneer Andrew Sullivan, yet another exile at substack, in his eloquent, brave, important and accurate essay, “What Happened To You?”

That’s probably not the best ethics quote in Sullivan’s latest essay. It’s just the earliest. There is also this bitter truth, as Sullivan’s brief approaches it’s climax:

“Look how far the left’s war on liberalism has gone. Due process? If you’re a male on campus, gone. Privacy? Stripped away — by anonymous rape accusations, exposure of private emails, violence against people’s private homes, screaming at folks in restaurants, sordid exposés of sexual encounters, eagerly published by woke mags. Non-violence? Exceptions are available if you want to “punch a fascist.” Free speech? Only if you don’t mind being fired and ostracized as a righteous consequence. Free association? You’ve got to be kidding. Religious freedom? Illegitimate bigotry. Equality? Only group equity counts now, and individuals of the wrong identity can and must be discriminated against. Color-blindness? Another word for racism. Mercy? Not for oppressors. Intent? Irrelevant. Objectivity? A racist lie. Science? A manifestation of white supremacy. Biological sex? Replaced by socially constructed gender so that women have penises and men have periods. The rule of law? Not for migrants or looters. Borders? Racist. Viewpoint diversity? A form of violence against the oppressed.” 

I hate to drop spoilers with a master essay like Sullivan’s but I know a lot of people don’t follow links, and attention, as Willy Loman’s wife said, must be paid. Sullivan writes like an angel, so I quote him in fond hopes that readers will allow his persuasive prose to unfold as he designed it. Andrew begins by writing,

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Saturday Morning Ethics Warm-Up, July 10, 2021: Remembering The Unethical And Bizarre”Monkey Trial”

/ Jack Marshall / 6 Comments

Scopes

Ooooh, it’s Clarence Darrow time again, and as I will show in another post shortly, this has serious, and underappreciated current day relevance.

For on this date in Dayton, Tennessee, the so-called Scopes Monkey Trial began in 1925, not only one of the most famous trials in U.S. history, but also one of the most misrepresented, misunderstood and, frankly, silly trials as well. John Thomas Scopes, a young high school science teacher, was accused of teaching evolution in violation of a new Tennessee state law which made it a misdemeanor punishable by fine to “teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Town officials persuaded Scopes to volunteer to get arrested for the offense, not so much to challenge the law but because alocal businessman figured out that it would put Dayton on the map. His plot succeeded beyond his wildest dreams. The American Civil Liberties Unio—-yes, they once cared about the First Amendment—announced it would defend Scopes, and hired an aging but famous Clarence Darrow to do the job, which included making sure his client was convicted, so they could appeal the verdict to the U.S. Supreme Court, where even a monkey judge would know that the Tennessee anti-evolution law was a blatant First Amendment violation.

William Jennings Bryan, the three-time Democratic presidential candidate who was seeking his fourth shot at the White House, volunteered to assist the prosecution in his guise as a fundamentalist Everyman. The Monkey Trial got underway with in-person coverage by renowned cynic H.L. Mencken and hoards of other reporters. Parts of the trial were broadcast nationally over the radio, an all-time first. Preachers set up revival tents along the city’s main street; venders sold Bibles, hot dogs and souvenirs like monkey dolls and fans to tourists. A carnival “exhibit” featuring two chimpanzees and a “missing link” opened in town: the alleged “Monkey Man” was 51-year-old Jo Viens, who was short, had a receding forehead, and whose jaw protruded like an ape. One of the chimpanzees wore a plaid suit, a brown fedora, and white spats, and periodically was allowed to run around on the courthouse lawn.

To recap, the “trial” was based on a contrived “crime” committed with the cooperation of authorities, and the defense was to make sure Scopes was convicted, not acquitted. But things got even more Bizarro World-like. At one point, Scopes told Darrow that a substitute teacher, not him, had actually taught the Darwin class, and Darrow told the teacher to shut the hell up about that rather crucial detail. When Judge John Raulston ruled that expert scientific testimony on evolution would be inadmissible, Darrow decided that his sole expert witness would be Bryan, one of the prosecutors. (No, this had never happened before and has never happened since.). Raulston ordered the trial moved to the courthouse lawn for this spectacle, fearing that the weight of the spectators and reporters inside would cause the courthouse floor to collapse.

Darrow treated Bryan as a hostile witness, though they knew each other, were both political progressives, and were both doing what they loved best, performing in front of a crowd. Popular legend holds that Darrow made a monkey out of Bryan, which was how the famous play (“Inherit the Wind”) based on the trial and its many TV and movie versions portrayed the showdown, but reading the transcript tells a different story. Bryan’s answers were cagey and clever, but he had a big problem: he knew his answers were being broadcast to potential voters who were not fundamentalists, yet he couldn’t afford to alienate the Bible-Beating jury. Darrow had no such dilemma: remember, he wanted to alienate the jury, and knew that if Bryan insisted that the Bible was literally true, “The Great Commoner” would end his political career (though it was almost certainly over anyway.) . Thus Bryan argued, for example, that God explained things in the Bible in ways that could be understood by the people of the time. For example, God obviously knew that the Earth moved around the sun, and not the other way around, but HE just said, in the Bible, that the sun “stopped,” so as not to confuse the faithful.

The weirdness got worse: in his closing speech, Darrow asked the jury to return a verdict of guilty in order that the case might be appealed. I’m pretty sure this is an abuse of process and wildly unethical: isn’t a request to be found guilty indistinguishable from a guilty plea? This tactic did have a mean consequence for poor Bryan: under Tennessee law, the admission of guilt meant Bryan couldn’t deliver the grand closing speech he had been preparing for weeks. It took eight minutes for the jury to return with a guilty verdict—why did Darrow feel he had to ask for a verdict that was pre-ordained, other than to deny Bryan his big finale?— and Raulston ordered Scopes to pay a fine of $100, the minimum the law allowed.

After all of this, the ACLU’s scheme still failed: the Tennessee Supreme Court overturned the Scopes verdict, but on a procedural technicality, so the case never got to the U.S. Supreme Court at all. The constitutional issue was officially unresolved until SCOTUS overturned a similar Arkansas law.

Can you guess why this fiasco has special relevance in 2021?

Watch this space!

Twitter, Facebook, And Ethics

/ Jack Marshall / 13 Comments

dc-mayor-lewd-anime-meme

First let’s do Twitter….

  • The image above was tweeted out by D.C. Mayor Muriel Bowser. It really was. It was also deleted in seconds, but not before enough people and bots captured it to set the stage for her to get swamped by online mockery.

How much crap is it fair and ethical to give a public official who has this happen to her? My answer: an endless amount. Obviously Bowser didn’t do this; the incompetent she assigned to send out tweets in her name did. Too bad. If you delegate your identity, you are responsible for what goes out under your name. Should Bowser get more or less flack than, just to pick an example out of the air, Donald Trump, who sent out his own tweets and was widely mocked for every typo, poor chosen re-tweet, or dumb comment.?

Exactly the same amount.

  • This meme has been going around on Twitter…

True Story

Boy, I didn’t see that ending coming. I thought we would learn that the one hired was the interviewee who left first….which would have been me, after about 30 minutes.

Anyone who would agree to work for a manifest asshole like the employer in the story is such a pathetic weenie that he or she deserves the abuse that such a job would inevitably entail.

I sure hope it’s not a true story. And I hope only a tiny percentage of those seeing the meme are not so foolish and submissive as to think this was a test of “patience.”

These tweets have not made me regret my decision to get off of Twitter.

Now on to Facebook, which is evidently trying to make me quit that platform too…

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Add “Equity” To The Intentionally Dishonest Cover-Words Being Employed In Progressive Disinformation And Propaganda

/ Jack Marshall / 8 Comments

quotes-1984-george-orwell-hd-wallpapers

Racism is Equity

Yesterday I was talking with my sister, who worked for years in the Justice Department dealing with the refugee mess, about the intentional use of “immigrant” as a word for “illegal immigrant” in order to warp political debate and confuse the public. She blames ignorant journalists, but then she is something of a progressive, and tends to the Hanlon’s Razor explanation of deliberate deception by what the U.S. now calls “journalism.”

The latest diabolical use of language to justify the unjustifiable is the media’s weaponization of “equity,” which most of the public equates with “equality” thanks to a deficient education system. Equity is the quality of being fair and impartial. In law, equity now means the judicial imposition of measures to prevent damage, as when an ex-employee who agreed otherwise is prevented from competing with a former employer.

A front page article in the New York Times a week ago read “Biden’s Efforts At Race Equity Runs Into Snags,” the “snags” being those evil racist white conservatives. “No part of President Biden’s agenda has been as ambitious as his attempt to place concerns about equity squarely at the center of the federal government’s decision-making,” we are told. But what the article, and many, many other media reports and enthusiastic pundit columns call “equitable decisions” are in fact straight up racial discrimination.

Racial discrimination is not equity and can never be equity, but we are currently under a severe brain-washing effort to make us think otherwise.

From the Times article:

“In late May, Syovata Edari, the owner of CocoVaa Chocolatier in Madison, Wis., was told she would receive $50,000 from Mr. Biden’s government, courtesy of the president’s efforts to ensure that pandemic relief aid for struggling restaurants and food businesses would be distributed equitably. But three weeks later, she instead received an email that broke the bad news: The award had been rescinded thanks to a lawsuit filed on behalf of white restaurant owners that successfully challenged the program’s policy of prioritizing applications from women and people of color. The check she was counting on would not arrive. “It doesn’t surprise me that once again these laws that we fought and died for, that were intended to benefit us — to even the playing field a bit more — are being used against us,” Ms. Edari, who is Black, said, referring to the Constitution’s equal protection clause. “You can’t promise something and then take it back.”

Wow! What breathtaking confusion and hypocrisy! The lawsuit was filed because the government giving benefits to one race and gender and not another for no reason except color and chromosome distribution is a slam-dunk violation of the Constitution’s Equal Protection Clause, and only a cynical and irresponsible administration seeking to create division and racial animus would represent it as otherwise. Eadari is trying to evoke “equity” Bizarro World-style by the assertion that it is “unfair” to “promise something and then take it back.” Thus, in the now routine mental gymnastics of antiracism racism, it is ‘inequitable’ to make an illegal and discriminatory pledge and not follow through on it.

The Times goes on…

“The small-business program that prioritized people like Ms. Edari was forced to change its rules last month after challenges by white Americans who say the policy is racist. And around the country, Republicans are promising to tie the president’s equity efforts to a broader culture war during the 2022 midterm elections, arguing that Mr. Biden is doing the bidding of liberal activists who believe that all white people are racist. On Capitol Hill, the $1.9 trillion relief package Mr. Biden pushed through in March, known as the American Rescue Plan, included money for health care, child care and poverty programs that disproportionately benefit minority groups, underserved communities and women.”

Being a now partisan and completely untrustworthy mouthpiece, neither the reporters nor their editors made any efforts to point out the logical and legal problems with the above, nor to avoid the bias the wording used perpetuates:

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In Americans For Prosperity Foundation v. Bonta, Supreme Court Conservatives Again Defend The First Amendment As Its Left Approves Of Chilling Speech And Association

/ Jack Marshall / 13 Comments

08-18-17 Free Speech

How did we get to the point where “liberals” want to chip away at the freedoms of speech and association while conservatives defend it? It’s weird: I’m old enough to remember when those mean old conservatives were always trying to silence dissent, not to mention vulgarity and violent TV shows and movies.

But in the final day of the Supreme Court’s term, the 6-3 conservative majority ruled that California—from which all terrible ideas now seem to flow— may not require charities soliciting contributions in the state to report the identities of their major donors. The law was opposed by very unconservative voices like those of ACLU to the NAACP Legal Defense and Educational Fund, and one would think that the alleged liberals on the court would immediately recognize how the law could and would chill free speech. Or don’t they pay attention to the incidents where CEOs have been run out of their jobs for contributing money to anti-gay marriage organizations, to name just one example? It would seem not. This is also weird, for the cancel culture has made simply stating an opinion that contradicts the Woke Borg perilous to one’s career, personal relationships and safety. Is it overly conspiracy-minded to suggest that progressives want it that way, particularly with their success at making wiggly-spined Americans who would make Patrick Henry retch grovel for forgiveness.

Chief Justice Roberts neatly summarized the importance of free association, writing,

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RETRACTED And Revised: “Scared Yet? Twitter Censors A Times Op-Ed Columnist For Calling Anti-White Racism What It Is”

/ Jack Marshall / 10 Comments

silence

This is the revised part. The retraction is that despite the headline and what I wrote below, Twitter didn’t suspend New York Times columnist Bret Stephens account for violating Twitter’s rules with his recent op-ed calling anti-white measures showing up in the Biden Administration and elsewhere what they are: racism. The Daily Wire, a conservative website that was founded by right wing gadfly Ben Shapiro, wrote the post based on “a Twitter user” as its source,” and I foolishly assumed that the site would have checked out the claim before posting on it. It turns out the Stephens’ account says it’s “suspended” because he suspended it himself, in 2019.

Thus I am made an accomplice to this confirmation bias chain reaction, and I resent it. This is the kind of crap I experienced more than once from Breitbart and The Gateway Pundit, both of which are no longer cited as sources on Ethics Alarms, and whose stories I will not believe unless I find a credible source that independently confirmed it. Now I’m adding the Daily Wire to that black list. There are plenty of left-leaning sites on that list as well, but since it is virtually impossible to ensure that a story that reflects poorly on the allies of progressive propaganda hasn’t been obscured or deliberately distorted by the mainstream media, conservative media has to be trustworthy and professional, and far too often, it just isn’t. Situations like this make it easier for the mainstream media to call every report they wish would disappear “conservative disinformation.”

Meanwhile, The Daily Wire just notes (a few minutes after I’ve posted relying on its fabricated story) that the post had been “corrected.” It was originally titled, “Twitter Suspends NY Times’ Columnist’s Account After He Denounces Equity as ‘Racism.” NOW it is headlined “NY Times Columnist Denounces Equity as ‘Racism’” which is both inaccurate and not news, since Stephens’ column is three days old. He also never called “equity”racism. That’s like something they would say on MSNBC to distort what was written. I thought the phrasing was strange and sloppy in the first version, but since the topic was Twitter’s censorship, I didn’t bother with it. Now, the misrepresentation is the subject of the whole post. Then, in the body of the piece, it now says, “On June 30, a Twitter reader erroneously claimed that Twitter had suspended Bret Stephens’ Twitter account.” What it should have said is “On June 30, a Twitter reader erroneously claimed that Twitter had suspended Bret Stephens’ Twitter account, and we, because we were looking for another reason to bash Twitter, believed him without checking. We apologize to our readers and any other websites, commentators or blogs who were misled due to our mistake.”

But I DO apologize (and thank to JutGory for the prompt alert). Confirmation bias also played a part in my gullibility: I do not trust Twitter, and what was represented is just a bit beyond what Jack Dorsey’s arrogant cyber-creature has done already. The last line of the post is still valid, though the rest was built on garbage: “Boy, am I glad I quit Twitter. But I’m ashamed that I didn’t do it sooner”

Like Bret Stephens.

The rest of what follows, except for that last part, is retracted.

***

I didn’t see this one coming, because I am an idiot.

Two days ago, I wrote in the morning warm-up, (Item #2),

“Today [The New York Times] allowed Bret Stephens , one of the endangered species in their op-ed stable, a conservative, to write an anti-antiwhite racism piece under the Times’ main editorial gaslighting those who see Critical Race Theory for what it is. (On the opposite page, one of the Times’ usual far-left shills has another op-ed defending the teaching of Critical Race Theory in the schools, so the Times makes sure that Stephens is shouted down by his own paper, 2-1.) Stephens’ op-ed is called “The New Racism Won’t Solve the Old Racism,” which one would think is self-evident, but in the Year of the Great Stupid, it certainly is not. His “money quote” comes at the very end:

“Thoughtful liberals who think this is much ado about nothing should spend some time pondering how perfectly people like [ Mayor Lori Lightfoot, who has announced that she won’t be interviewed by white journalists] are now playing into right-wing stereotypes. They should also spend time wondering whether the ideal for which they have long fought — a society that, if not colorblind, can at least see past color — is being jeopardized by progressives who apparently can see only color. Whichever way, it shouldn’t be hard to see that trying to solve the old racism with the new racism will produce only more racism. Justice is never achieved by turning tables.”

Obviously, he’s racist, or so the totalitarianism-enabling censors at Twitter decided. Yesterday, Twitter suspended Stephens’ Twitter account which now just says, “Account suspended.” His opinion, you see, violates Twitter rules, primarily the unwritten one that holds that any statements that in any way undermine the credibility and effectiveness of the Left’s efforts to undermine the Constitution and core American values will be censored so as few citizens get to ponder non-conforming arguments as possible.

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