First Amendment

Morning Ethics Warm-Up: 7/18/17

/ Jack Marshall / 17 Comments

It’s an All-Fred Morning!

Every day, Ethics Alarms head scout Fred sends me multiple suggestions for posts from he finds heaven-know-where. Even when I can’t fit them in, they often serve as references and always are enlightening.

1. I suspect this belongs in the Polarized Nation of Assholes files: For two years, since he returned from service combat zones in Iraq and Afghanistan, Lieutenant Commander Joshua Corney, has kept his promise to salute his fallen comrades in arms by playing a recording of Taps every evening before 8:00 p.m on his five-acre property in Glen Rock, Pennsylvania. It takes 57 seconds. It does not exceed volume limits. My dog barks longer that that every night after midnight when we put him out. Nonetheless, some of Corney’s neighbors have filed objections with the  borough. Now Glen Rock, which allows church bells to ring, among other sounds, ordered Corney to limit the playing of taps to Sundays and what it termed “flag holidays.” Each violation of the borough’s order would bring a criminal fine of 300 dollars. But the borough’s enforcement action involves two big constitutional no-nos: the heckler’s veto and content-based censorship. The borough is relying on a nuisance ordinance that prohibits sound that “annoys or disturbs” others, and just one individual annoyed by the somber Civil War era bugle solo is enough to deliver a “heckler’s veto.’

The ACLU is on the case, and backing Corney as he fights the action. It writes,

“If a “heckler” could shut down anyone who said or played something that annoyed or offended them by complaining to government officials, freedom of speech would be no more. For more than 75 years, it has been black letter First Amendment law that the government cannot censor speech simply because it is not universally appreciated.

Moreover, the borough cannot use its vague nuisance ordinance to single out only Lt. Commander Corney’s musical expression for censorship from the range of sounds that are part of the borough’s regular sonic landscape. The borough has not ordered Lt. Commander Corney to lower the volume of taps or claimed he has violated a noise-level ordinance.

And it could not claim such a violation because the recording neither exceeds any established noise levels nor is it as loud as many other sounds the borough tolerates — including many sounds that do not communicate a message, like lawnmowers, leaf blowers, chainsaws, and vehicles. Censoring clearly protected expression, like taps, for being too loud, while allowing louder sounds that carry no constitutionally protected message turns the First Amendment on its head.”

Bingo. It is in cases like these that the American Civil Liberties Union shows how essential its role is in protecting the freedoms here that are so frequently under attack.

2. I was surprised when I learned some time ago that undercover police officers used to routinely have sexual relations with prostitutes before arresting them (homosexuals too, when they werebeing persecuted and  prosecuted). Just two months ago, Michigan became the last state in the U.S. to make it illegal for police officers to have sexual intercourse with prostitutes in the course of an under-cover (or covers) sting. Now Alaska wants to go an additional step, banning “sexual contact” with “sex workers” entirely. This could be mere touching or kissing. Advocates of Alaska’s House Bill 73 and Senate Bill 112 argue that police catching sex workers in the act by engaging with them sexually is a human rights violation, and Amnesty International has made an official statement supporting that claim: “Such conduct is an abuse of authority and in some instances amounts to rape and/or entrapment.” Police, quite logically, point out that the bill would make  successful undercover investigations impossible, which is, of course, the whole idea.

“[The prostitutes] ask one simple question: ‘Touch my breast.’ OK, I’m out of the car. Done. And the case is over,” Anchorage Police Department Deputy Chief Sean Case told the Alaska Dispatch News in a hypothetical example. “If we make that act (of touching) a misdemeanor, we have absolutely no way of getting involved in that type of arrest.”

Ethics Alarms is anti-prostitution. As with recreational drug use and probably polygamy, prostitution, which harms families and the young women and men exploited and abused to support it, is almost certainly on the road to legalization. Government won’t protect vital society ethics norms, but it will order you to buy health insurance because it’s for your own good. Continue reading →

Morning Ethics Warm-Up: 7/13/17

/ Jack Marshall / 26 Comments

Good Morning!

1. I owe Robin Meade an apology. The astoundingly bright-eyed, bushy-tailed HLN morning host has been used here as an an example of the sexism of broadcast news media producers, and it is true that she is uncommonly attractive even by “news babe” standards. However, I have come to realize that she is also a unique talent, and more than just a pretty face and figure. Meade has natural presence and charisma, projects genuine optimism and and an up-beat nature, and most unusual of all, doesn’t spin the news or tilt her delivery to signal her own opinion. She’s really good at what she does. I’m sorry Robin; I was biased against you because you are attractive, which is just as wrong as being biased for you. You’re a pro, through and through.

2. Constitutional law expert Eugene Volokh (who is also my favorite candidate for a Supreme Court post if one opens up) published what I consider to be a definitive refutation of the claim that receiving opposition research, as in “damaging information about Hillary Clinton,” is a crime under current law. He also makes a case that it couldn’t be criminalized under future law:

“It would raise obvious First Amendment problems: First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights. See Bridges v. Wixon, 326 U.S. 135 (1945) (“freedom of speech and of press is accorded aliens residing in this country”); Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) (“We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders,” including ones who are not permanent residents).

Second, Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?”

The professor concludes not. I hadn’t even considered the First Amendment issue in determining that the election law prohibition against receiving “anything of value” benefiting a candidate from a foreign nation or individual was not intended to preclude mere information, but Volokh’s argument seems air tight. Continue reading →

Ethics Dunce: The Washington Metropolitan Area Transit Authority [ UPDATED]

/ Jack Marshall / 7 Comments

[UPDATE: The original version of this post designated the dunces as the D.C. government. This was not accurate, as reader deery helpfully pointed out. You can read about the baroque and diffuse organization and leadership of the D.C. area’s transit system…currently in bad repair and financial distress…here.  Good luck. The text has been revised to reflect the correction in the title. Frankly, the exact organization of the DC. area Metro is less central to the post than the fact wherever the leadership is, it is government, it is dominated by the local Democratic leadership, and it is censorship. That’s what matters.]

Quick, now: what controversial political position does the above Washington, D.C. area  public transit ad promote?

The Washington Metropolitan Area Transit Authority, the transit agency of the local  and state governments in and surrounding the nation’s capital,  has pulled ads for controversial right-wing speaker Milo Yiannopoulos’ self-published memoir after determining the ads violated the transit system’s policies banning issue-oriented, political and other advocacy advertising.

An independent contractor sells and installs ads across the system, but ultimately Metro’s leaders have the final say…providing that they follow the Bill of Rights. This appears to be a problem for them.

The relevant Metro policies  restricting advertising content include:

  • “Advertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited”
  • “Advertisements that are intended to influence public policy are prohibited”

There is no argument here about what the banning of the book ad is: the Transit Authority is engaging in censorship.  This is especially obnoxious for an agency that represents the locality that hosts of the national government, and where the Constitution is on display.  It is also ignorant. Read the damn thing, you politically corrupt dolts. And it is arrogant. The District’s population, stuffed with Democrats like no other jurisdiction, with a majority African-American and conservative-loathing populace, figures to revile a right-wing troll like Milo, and the reliably Democratic riders served by the Metro in Northern Virginia and Maryland are hardly more tolerant of hard-right trolls. But Milo’s name and book cover by no stretch of the imagination are advocacy or efforts to “influence” anyone regarding public policy or “an issue.” Like all ads, here’s the position that it advocates: “Buy this!”

Milo Yiannopoulos is an ugly and cynical right-wing provocateur, but he does not forfeit the protection of the First Amendment because of who he is. When did liberals and Democrats lose their comprehension of this basic democratic concept? What ever the origin of their confusion, it makes them untrustworthy, sinister, and almost as revolting as Milo.

He’ll probably sue the Washington Metropolitan Area Transit Authority for infringing his rights, which it has. He will win. Keep it up, Democrats! Keep indulging that inner totalitarian just screaming to get out.

See what happens.

Oh, Fine. Now I have To Defend Kathy Griffin…

/ Jack Marshall / 29 Comments

Hahaha! Boy, this just fractures me every time…

From LawNewz:

Comedian and actress Kathy Griffin has reportedly been interviewed by the U.S. Secret Service for more than an hour. The investigation is connected to a recent photograph which showed her holding the bloody head of Donald Trump.

Griffin’s attorney contends that the actress was just exercising her constitutional rights.

“She basically exercised her First Amendment rights to tell a joke,” Dmitry Gorin, a criminal defense attorney representing Griffin said. “When you look at everything in the media, all the times entertainers make videos or express themselves in other ways, you’ve never seen an entertainer, let alone a comedian, be subject to a criminal investigation.”

Ugh.

Griffin’s attorney doesn’t have to “contend” that she was “exercising her constitutional right” of free speech, she was exercising that right—-irresponsibly, recklessly, unethically, stupidly, hatefully, but she was still exercising it. There is no question that her disgusting photo was inappropriate and pure hate posing as humor, but never mind: people choosing to be hateful and irresponsible in their public speech should expect consequences, but not from the feds. Of course it chills freedom of expression for Griffin to be subjected to this kind of secret police-style grilling. It is a matter of public record that she is a comedian. It is a matter of public record that she is a professional jerk. Thus it is a matter of public record that she is a no threat to the President….just to a civil culture and good taste. Continue reading →

Dear Idiots: Please Stop Making Me Defend The Bigoted Baker

/ Jack Marshall / 88 Comments

I am pleased that the Supreme Court will be taking the case of Jack Phillips, the Colorado baker who refused to sell a wedding cake to a gay couple because, he said, they wanted it to be customized, and doing so would offend his faith.  His claim is based on the First Amendment, which prevents the government from making you say what you don’t want to say as much as it prevents the government from stopping you from saying what you want to.

Colorado’s courts denied that Phillips was doing anything but saying that he doesn’t like or respect gays sufficiently to make the exact same cake for them that he would make for non-gays.  I agree with their holding that his actions violated the public accommodations laws. I wrote when this case first reared its frosted head…

“The court’s conclusion  is impossible to rebut. The cake the baker was asked to bake for the gay wedding differed not at all from one he would normally sell a straight couple. In truth, this had nothing to do with expression. He was just refusing to serve a gay couple because of their sexual orientation. Selling them a standard cake would neither constitute, nor would it be recognized as a “message” in support of gay marriage.

The Court agreed that a wedding cake with a customized message celebrating a same-sex marriage as such might implicate First Amendment speech issues, but “we need not reach this issue,” the court said. “We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.”

In other words, Phillips was gratuitously and unnecessarily being a cruel jerk. An alleged Christian who is unable to detect the basic Golden Rule application in treating fellow citizens with the minimal level of respect inherent in allowing them to buy a standard wedding cake requiring no “Yay Gay!” or “Charlie and David Forever!” messages in pink frosting deserves no sympathy or quarter from the law. Could the couple have just shrugged and found another bakery? Sure, they could have. Linda Brown could also have just shrugged and found an all-black school to attend, too.

The gay couple are not the villains here. Jack Phillips broke the social contract, as well as the law.”

Now that SCOTUS has decided, by agreeing to review the case,  that he has perhaps a scrawny, shaky legal leg to stand on before they kick it out from under him, Phillips and his lawyer are taking a premature victory lap, as if making it quite clear that you think gays are second class citizens is something to be proud of (and, sadly, too many still think it is.) Their publicity campaign took them all the way to The View, a wise choice. After all, nothing can make an unethical position seem more persuasive than when it is being attacked by idiots, and idiots of the left-wing persuasion are pretty much what ABC’s “Six Opinionated Female B and C List Celebrities Sitting Around Slamming Conservatives”  daytime show has to offer. (To be fair, the show usually has one even dumber right-wing idiot on hand to make the left-wing idiots seem astute by comparison.) Continue reading →

New York Times: ‘Now That The Supreme Court Has Ruled That Our Position Was Progressive Censorious Jack-Boot Political Correctness Enforcement, We Didn’t Mean It’

/ Jack Marshall / 28 Comments

 

How can anyone take the New York Times seriously anymore as an objective source of commentary, reporting and analysis?

Here is a hilarious section from today’s editorial celebrating the Supreme Court’s unanimous decision in Matal v. Tam as a victory for free speech:

Writing for the majority, Justice Samuel Alito said the law violates a “bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” That’s the right call. The First Amendment bars the government from discriminating among speakers based on their viewpoints. In this case, the Trademark Office did that by blocking only registrations for trademarks it determined to have negative connotations. …The decision is likely to help the Washington Redskins, who lost their trademark protections in 2014 after years of complaints from Native American groups. At the time, this page supported the Trademark Office’s decision, and we still regard the Redskins name as offensive. Based on this case, however, we’ve since reconsidered our underlying position.

Really? When did the Times reconsider that “underlying position”? It reconsidered it only when the Supreme Court made it crystal clear that the government’s attempt to bully the Redskins into changing their name was a neon-bright, obvious First Amendment breach that any non-partisanship-addled person of moderate intelligence should be able to discern, thus constituting an embarrassment for a renowned First Amendment-protected entity—the Times—that couldn’t discern it, or that didn’t have the integrity to oppose its ideological allies by stating the inconvenient truth.

The Times endorsed the underlying position that the government could dictate what was “acceptable” speech because Harry Reid’s Democrats and the Obama Administration were doing the dictating on behalf of a core Democratic Party constituency and the progressives that constitute the Times’s readership.

What a cynical, biased, dishonest, corrupt and untrustworthy news source the New York Times has become.

Morning Ethics Warm-Up: 6/20/17

/ Jack Marshall / 54 Comments

1. It isn’t just the President’s boorish role modelling and the misbehavior and incivility of his opposition that makes me fear for the ethics alarms of our rising generation. The long-term results of people being able to isolate themselves from social contact—and the social skills and sensitivities that direct, face to face contact nurture—by constant attention to electronic devices is a matter for concern. Yesterday, I became aware of another danger.

I heard, on the new Sirius-XM Beatles channel, a recording of Paul McCartney singing my favorite song from “Guys and Dolls,” a sweet ballad sung in the musical by an elderly father to his grown daughter during her romantic crisis.

McCartney has a foot in two cultures and always has. As much as a rock and pop innovator as he was, Paul was also steeped in the traditional love songs of his parent’s generation, including Broadway. Today both of McCartney’s feet are planted where nobody under the age of 30 is likely to tread, and that is natural. Yet it seems that popular music is increasingly devoid of tenderness, empathy and compassion. Hip-Hop, particularly, seems immune from being able to express a sentiment like that in Frank Loesser’s nearly  70-year-old song that Paul McCartney obviously understands. I wonder, and worry. how many of today’s young Americans understand it, or will grow up with the capacity to do so.

Here’s Bing crooning the same song…

You know I love ya, Bing, but the Moptop wins this round.

2. There was some discussion on a thread here yesterday about the ethics of interests outside the state putting so much money into Georgia’s 6th congressional district’s special election. The House was designed to give communities a say in the national government, so to the extent that a local election is warped by interests outside the community—the Democrat, Jon Ossoff, is a carpetbagger who doesn’t live in the district—it’s a violation of the spirit of the Constitution and the ideal of American democracy. Some have even made an analogy to foreign governments interfering in U.S. elections. On the other hand, all this outside “interference” consists of are words, ads, and marketing. The district’s residents still are the ones who vote. If they are so easily swayed by slick ads and robocalls, that’s their responsibility. (There may even be a backlash.) Continue reading →

The Supreme Court Rules Against Government-Enforced Political Correctness

/ Jack Marshall / 15 Comments

The Supreme Court affirmed today that a Trademark law’s restriction on registration of disparaging marks violates the free speech guarantees of the US Constitution. In the case of Matal v. Tam, the Court (as Ethics Alarms predicted over a year ago) ruled that the government cannot legally  deny a trademark to companies or other applicants solely on the basis of the name being regarded as “offensive.”

Good.

The case concerned  an Asian-American band called The Slants, but the decision effectively settles the Washington Redskins’ fight to retain the trademark on its nickname. Harry Reid, also engaging in unconstitutional infringement of free speech, had his Democrats in the Senate send a threatening letter to team owner Dan Snyder, while the U.S. Patent and Trademark Office (PTO), taking its cues from the Obama Administration theme that race and victim-mongering  trumps basic rights, ruled that the Washington NFL team’s name was “disparaging to Native Americans,” and cancelled six of its federal trademark registrations. The team appealed that verdict, and team owner Dan Snyder has vowed not to cave to illegal bullying from the government.

Thanks to the ruling—did I mention that it was unanimous?—the PTO will begin allowing registration of disparaging marks and will not cancel Registered marks because they are disparaging.

The last time I addressed this issue, in December of 2015, I wrote,

“I would like to see Snyder fight off the unethical government speech bullies, foil the political correctness hordes, and then, after he hasn’t heard a peep about team for a couple of years quietly change the anachronistic team name on his own volition. It’s time. The message sent by capitulating to the activists trying to force him to change, however, would be the same dangerous message sent by today’s college administrators, which is that a claim of offense doesn’t have to be reasonable to effectively muzzle speech, just persistent.”

I also wrote, somewhat more passionately ,in an earlier post, Continue reading →

Morning Ethics Warm-Up: 6/8/17

/ Jack Marshall / 28 Comments

[I have been pondering doing this for some time now. Literally every day there are issues and stories that arise that are either too minor for a full post, or crowded out by other issues. Often I never get to them. Also my various issue scouts (especially Fred) have been burying me with excellent candidates for discussion and analysis, and I never get to most of them, frustrating all of us. So I am going to see if I can begin every day with a set of short notes about these topics, reserving the right to expand some of them into full posts later.]

1. Stacy Lockett, a teacher at Anthony Aguirre Junior High, has been fired after she gave out facetious awards to students such as “Most likely to become a terrorist” and “Most likely to blend in with white people.” Good, I think. These are too sensitive issues to expect middle-schoolers to laugh at, and the ‘awards”  show terrible judgment. Still, I am thinking back to comments made in class by some of my favorite 7th and 8th grade teachers, some targeting me. I thought they were funny, and the teachers knew I would think so. All of them would have been fired today, according to the Lockett Standard (Pointer from Fred)

2. By not disciplining Reza Aslan, the host of its “Believer” program who called President Trump a “piece of shit,” “an embarrassment to humankind” and a “man-baby” CNN has made it clear that it has abandoned any vestiges of professionalism or regard for journalism ethics. Well, perhaps “even more clear” is more accurate. CNN allowed Carol Costello to gleefully mock Bristol Palin for getting emotional over being battered; it has allowed Don Lemon to get smashed on the air two New Year’s Eves in a row, and shrugged off Anderson Cooper speculating about the President taking “a dump on his desk,” to give just three examples. Its excuse for Aslan was especially weird, claiming in a statement that he was a host but not an employee. Aslan apologized, but it was a dishonest apology, claiming that the tweets were impulsive and “not like me,” but in another tweet on May 9, he wrote,

“Oh the joy when this lying conniving scumbag narcissistic sociopath piece of shit fake president finally gets what’s coming to him.”

It’s sad to see what CNN has become since Trump’s election. I am embarrassed for the network. but more than that, I am in sorrow for the public. It is not being served by this kind of amateurish, biased and unprofessional journalism.

3. I finally decided that this law suit was too stupid to write about: a ridiculous woman named Holly O’Reilly has found some lawyers—not just any lawyers, either, but the First Amendment Institute at Columbia University—-willing to file a lawsuit claiming that President Trump cannot block her on his Twitter account because doing so is a First Amendment violation of her rights of free speech. The institute’s executive director, Jameel Jaffer, said in a statement that Mr. Trump did not have a right to exclude his critics from engaging with his posts. Does anyone think this is anything but nonsense? Anyone but the New York Times, that is, which wrote, ” The request raises novel legal issues stemming from Mr. Trump’s use of his Twitter account, @realDonaldTrump, to make statements about public policy,” and the Washington Post, which published the woman’s silly  op-ed .

When did “novel” come to mean “absurd”? The President blocking a Twitter user on the social media platform isn’t “government action” any more than not taking her phone calls or not reading her letters. She can still say anything she wants on Twitter. Next she’ll sue because she isn’t allowed to ask question at White House press briefings. Columbia University should be embarrassed, but when the anti-Trump  hate virus melts your brain, embarrassment is often the first casualty. Continue reading →

I Suppose Ethics Alarms Has To Officially Designate “Bloody Headgate” As An Ethics Train Wreck, Since Now The VFW Has Boarded

/ Jack Marshall / 12 Comments

The Veterans of Foreign Wars declared that Kathy Griffin’s photo of Trump’s severed head is unprotected under the First Amendment.

They are ignorant and have embarrassed themselves. The organization doesn’t even understand what its members have been allegedly fighting to protect and preserve.

VFW National Commander Brian Duffy issued a statement that “The Veterans of Foreign Wars of the U.S. strongly condemns comedian Kathy Griffin’s incredibly revolting attack on the President of the United States . . . . What she did was not humorous nor should it be protected speech or expression. Playing to an audience with a severed head is what our enemies do. The USO should end its relationship with her.”

Actually, playing to an audience with a severed head is what Shakespearean companies performing “MacBeth” have done on stages, professional, college and amateur, in the U.S. and elsewhere for hundreds of years, you ignoramus.

This is another reason why the Left’s claims that “hate speech” shouldn’t be protected are so dangerous to our society: too many citizens of all political persuasions don’t understand what free speech is, and are too ignorant to know how to counter this threat to democracy

Let’s see: Griffin, her lawyer, the President and his punching-down tweet; Rosie O’Donnell, who announced that she had no sympathy for 11-year-old Barron Trump seeing photos of someone apparently holding up his father’s head, the mainstream media hypocrites who told audiences that Griffin’s “eliminationist rhetoric” wasn’t news or worth discussing, though a far less threatening image dominated their conversations for weeks when they tried to tie Sarah Palin’s metaphorical cross-hairs on a political race map to the madman who shot Rep. Giffords…I was wondering which organization would be the first on the Right to claim that what Griffin did warranted criminal punishment. The VFW would have been a good bet.

But wait! There’s more!... and I should have seen this one coming too. Progressive favorite Alec Baldwin, a habitual boor and Ethics Dunce, weighed- in in support of Griffin and her severed Trump head as only he can, tweeting,

“Dear Kathy Griffin, Kathy….baby…I’ve been there. The whole Henry Hyde thing [with] Conan, where we bring out an oxygen mask at the end? a joke. That’s what I thought. That’s what we intended. No one walked out of the studio and said, “No! We’re serious!” No one. But all your gutless, weasels in the GOP insisted that I actually threatened Hyde. They played the victim beautifully. Kathy…fuck them. Fuck them all. No 1 believes u meant 2 threaten Trump.Trump is such a senile idiot, all he has is Twitter fights. ignore him. Like the leaders of all the other countries in the world. Ignore him.”

Honestly, I do not understand how anyone can laugh at Baldwin knowing the anger, bitterness and nastiness that ooze out of every pore; it’s like finding Bill Cosby or Woody Allen funny. Yet that this guy passes for a wit, political pundit and truthteller by Hollywood progressive standards.

Dear Alec…
Continue reading →