First Amendment

The Attacks On Free Speech From The Left Are More Dangerous Than Any Speech Progressives Want Banned

/ Jack Marshall / 50 Comments

Another day, another progressive effort to erode pubic support and understanding for the First Amendment. This is at the root of America’s current ethics conflict: a perverse and puckish God has made one of the most unethical and least reflective of public figures  the crucial bulwark against a massed and relentless assault against core national values.

The New York Times, taking a hand-off from its ideological twin the New Yorker, has published an attack on free speech from New Yorker writer Andrew Marantz. Even though he is a professional writer, he has managed to complete an elite education (Brown, NYU School of Journalism) without managing to grasp the essence of freedom of speech, and why it is the structural load-bearing beam that allows our democracy to exist.

Marantz simply doesn’t get it, or he does get it, but would love to see less liberty and more enforced line-toeing by those lesser intellects and deplorables who cannot accept the inherent rightness of the progressive view of the universe. He writes, for example,

Using “free speech” as a cop-out is just as intellectually dishonest and just as morally bankrupt. For one thing, the First Amendment doesn’t apply to private companies. Even the most creative reader of the Constitution will not find a provision guaranteeing Richard Spencer a Twitter account. But even if you see social media platforms as something more akin to a public utility, not all speech is protected under the First Amendment anyway. Libel, incitement of violence and child pornography are all forms of speech. Yet we censor all of them, and no one calls it the death knell of the Enlightenment.

I guess Brown has no mandatory course in government theory.  The Constitution is the enabling document of the U.S. mission statement—you know, the one that begins by announcing that there are inalienable rights to life, liberty, and the pursuit of happiness. That such a governing document that could only limit government restrictions on free speech also stood for a cultural, societal and ethical norm that freedom of speech was central to the Declaration’s summary of human rights would normally be clear to anyone who bothered to study the two documents as well as research the relationship between law, morality and ethics. It’s true that Richard Spencer can’t be assured of a Twitter account, but a society that denies him one is chopping at that load-bearing beam. Continue reading →

Morning Ethics Warm-Up, 10/2/19: While Basking In The Glow Of Another Life Lesson From Baseball

/ Jack Marshall / 40 Comments

Go Nats!

The Washington Nationals had never won an elimination game in the National league post-season. They were 0-6 in such games going into last might’s do-or-die single Wild Card play-off at home against the Miracle Milwaukee Brewers. Following the script many Nats fans dreaded, the team’s Hall of Fame-bound ace, Max Scherzer, quickly gave up three runs while the Brew Crew’s storied bullpen kept the offense at bay save a solo homer from National shortstop Trey Turner. Heading into the bottom of the eighth, the Nationals had to face closer Josh Hader (he of the Hader Gotcha), who gives up hits less often than some pitchers give up runs.

Then, as they say, fate took a hand. With one out, uninspiring Nats pinch-hitter Michael Taylor reached first illicitly. A 3-2 pitch from Hader hit the knob of Taylor’s bat and immediately ricocheted onto his hand. It should have been called a foul, but the umpires ruled it a hit-by-pitch, sending Taylor to first base. Hader struck out the next Nats batter, then aging Nats slugger Ryan Zimmerman was called upon as another pinch-hitter. He barely connected with a pitch out of the strike zone, breaking his bat, but his weak “dying quail” bloop dropped in just over the head of the Milwaukee second baseman for a cheap and fortunate single. (On TV, Zimmerman could be seen smiling and shrugging sheepishly.) That meant the tying runs were on base for the Nats best hitter, MVP candidate Anthony Rendon. Hader gave him what is known as an intentional unintentional base on balls in order to face 20-year-old Juan Soto, a left-handed batter. Lefty Hader allowed left-handed batters to hit .143 this season. But young Soto lined a pitch into right center, and Brewers right fielder Trent Grisham, one of the heroes of the late-season Brewers play-off drive, did a Bill Buckner. The single got past him (he was charging the ball in what would have been a futile effort to throw out the tying run at the plate) , and all three runners scored. Incredibly, the Nats now led 4-3. After the Brewers went down in the top of the 9th without scoring, they, and not Milwaukee, moved on to the next round of the play-offs.

Lesson: In baseball, as in life, it is as important to be lucky as to be good. Chaos lurks in every second, and the illusion of control is just that, an illusion. A bad call, a fluke hit, and a horribly-timed fielding botch that the same outfielder avoids 99 times out of a hundred, and so much changed for two cities, two fan bases, and the 2019 post-season, affecting jobs, careers, reputations and commerce.

This is why we should never give up, never despair, and never get cocky. It is also why we should strive to live as ethically as possible. We can’t control whether we win or lose, but we can control how.

1. Again we must ask: when did the Democratic Party decide to abandon freedom of speech?  Yesterday, we learned that Joe Biden’s campaign wants the news media to censor adversary commentary from Rudy Giuliani, while claiming that no one who isn’t a public official is qualified to opine on TV regarding public policy.  Now Senator Kamala Harris, who also aspires to be President, says President Trump should be banned from using Twitter because he  uses the platform in an “irresponsible” way. Harris, in an interview with CNN host Anderson Cooper, also called for “other mechanisms” to make sure Trump’s words “do not in fact harm anyone”—you know, like harming her party’s election prospects by exposing its Big Lies and open coup attempts.

I wonder if the public sees how ominous the repeated Democratic calls for censorship are. Maybe the President will tweet about that.

Of course, the President’s use of Twitter is often irresponsible, but also a necessary end-around media propaganda aimed at unseating him and undermining democracy. It is remarkable that Harris, a Senator and a lawyer, somehow missed  that the First Amendment proclaims the importance of free speech to our society. It doesn’t only endorse the right to engage in responsible speech. I think, for example, that advocating censoring the speech of the President of the United States is irresponsible, but I’ll defend Harris’s right to do it—and my right to conclude that because she does it, she is an ignorant, dangerous fool. Continue reading →

The Judicial Persecution Of Jonathan Vanderhagen

/ Jack Marshall / 16 Comments

It began when Jonathan Vanderhagen petitioned Macomb County (Michigan) Circuit Court Judge Rachel Rancilio for sole custody of his 2-year-old son, Killian, arguing that Killian’s biological mother was unfit to be his son’s  guardian. Judge Rancilio disagreed and the child’s mother retained custody. Not long after the decision,  Killian was dead. Since his son’s death in 2017, Vanderhagen has harshly criticized the Rancilio’s custody ruling on Facebook. 

As a result, he was arrested and charged with a malicious use of telecommunication services , which includes using a telecommunication service with the intention of terrorizing, intimidating, threatening, or harassing someone, in this case, the judge. From Reason:

The case report filled out by Sgt. Jason Conklin of the Macomb County Sheriff’s Office notes that Rancilio was made aware of Vanderhagen’s posts, several of which included screenshots of her own Facebook page and pins on Pinterest. The screenshots are accompanied by captions promising to expose the corruption of the court system and calling Rancilio and Mary Duross, a 14-year veteran Friend of the Court who was involved in the custody case, “shady.”  “At no point does [Vanderhagen] threaten harm or violence towards Rancilio or Duross,” Conklin wrote in the case report.

Apparently some of the “threat” claim comes from the meme above and others like it that Vanderhagen—talented!—has created and posted on Facebook. That shovel! Scary! The caption says, “Dada back to digging [and] you best believe [I’m] gonna dig up all the skeletons in this court’s closet.” “I won’t stop till changes are made, people are held accountable, careers are ended, & these kids get the justice they deserve,” he wrote in another one of his “threatening” Facebook posts.

What’s going on here?

I don’t think its a tough question: what’s going on is a concerted effort  by some Michigan judges of dubious skills and character to take vengeance on a citizen who hasn’t been willing to grovel at the the feet of the Robed Ones. Judges are like that all too often, but this is an unusually ugly example that begs for a serious reckoning with Lady Justice—for the judges. Continue reading →

Ethics True Or False: “The KKK Has As Much Right To Have A Cookout As Anyone Else”

/ Jack Marshall / 22 Comments

This is an excellent question to ask your Facebook Borg friends to determine if they support and understand the meaning of freedom of thought, freedom of association, free speech, and the Bill of Rights generally. Most of them will get the question wrong, because they don’t. Some of them will probably call you a racist for explaining what the correct and ethical answer is: TRUE.

It’s not a matter of debate either, unless one believes that the First Amendment is debatable—as, depressingly, a growing number of progressives do.

In Madison, Indiana, a mob of antifa members (with bandanas covering their faces)  and others conspired to prevent the local KKK chapter from holding its annual annual “Ku Klux Kookout” picnic in a public park. They beat the Klan group to the site, then confronted hoodless “Kookers”, who they outnumbered, and intimidated them into retreating after a ten minute confrontation.

“The ‘honorable sacred knights’ of the KKK showed up here at the park and were chased out within minutes because hate has no place here in Madison, Indiana,” Mike Gamms, one of the antifa organizers of the counter-cookout, or whatever you call it, said with misplaced pride. Continue reading →

One More Time: A Correct Decision Because There Is A Right To Be A Jerk, Even Though Being A Jerk Isn’t Right

/ Jack Marshall / 34 Comments

This decision should have been easy; it should not have has to go to an appeals court.

Carl and Angel Larsen (above) operate the Telescope Media Group, a Minnesota videography company.  In 2016, they claimed  Minnesota’s anti-discrimination laws required them to make videos of same-sex marriages, which they say their religious beliefs oppose. They challenged the Minnesota Human Rights Act as unconstitutional. The relevant provisions state,

“…It is an unfair discriminatory practice . . . to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of . . . sexual orientation.

…It is an unfair discriminatory practice for a person engaged in a trade or business or in the provision of a service . . . to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person’s . . . sexual orientation . . . , unless the alleged refusal or discrimination is because of a legitimate business purpose…”

The Larsens told the lower court that they wanted to make films that promote their view of marriage as a “sacrificial covenant between one man and one woman.” Thus they will only film heterosexual  weddings, to “capture the background stories of the couples’ love leading to commitment, the [couples’] joy[,] . . . the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives.” They also, they said,  intend to post and share these videos online, in order to “affect the cultural narrative regarding marriage.”

 U.S. District Judge John Tunheim  dismissed their case, comparing  their stated mission of  promoting marriage as a bond between one man and one woman was comparable to posting a sign that said “white applicants only.”

Bad opinion, bad logic, bad judge. The couple made clear that they will “gladly work with all people—regardless of their race, sexual orientation, sex, religious beliefs, or any other classification.” However, as ” Christians who believe that God has called them to use their talents and their company to . . . honor God,” the Larsons decline any requests for their services that they feel conflict with their religious beliefs, and so state in their promotional materials.

In a 2-1 decision,  the three-judge panel of the Eighth Circuit reversed, ruling that the Larsons have a First Amendment right “to choose when to speak and what to say.”

Of course. While one may argue whether a cake is “speech” under the First Amendment, there is no persuasive argument that a video or film is not protected communication and speech by definition. The opinion cited the U.S. Supreme Court’s 1995 landmark decision in Hurley vs. Irish American Gay, Lesbian, and Bisexual Group of Boston, noting that the Court “drew the line exactly where the Larsens ask us to here: to prevent the government from requiring their speech to serve as a public accommodation for others.”

As with the various baker and wedding photo cases, I find the Larson’s conduct obnoxious, divisive and unnecessary. How does simply filming a wedding—I don’t care if it’s between a man and a musk-ox—constitute an endorsement, support, or a violation of their religious beliefs? It doesn’t. It can’t. Refusing to make a video of a wedding is an insult to any couple that requests it, and cruelly implies that they are less than worthy of association. Sure, the videographers have a right to withhold their services, but they are being jerks to do so. This is a Golden Rule matter. A law shouldn’t be necessary.

However, the Larsons should have the choice of whether to be good, ethical members of the community, fair and compassionate, and not be forced to act the way the State thinks they should act, even if the State happens to be correct, under threat of  90 days in jail and up to $25,000  in fines. Continue reading →

Saturday Ethics Warm-Up, 7/27/19: Updates And News!

/ Jack Marshall / 5 Comments

Saturday morning came!!

At points yesterday I was beginning to have doubts…

1. A win’s a win, and right is right, but the ACLU outs itself again.  In the wake of the SCOTUS 5-4 decision to let stand the executive order reallocating funds for a wall to address the national emergency at the border and allow construction to commence, the ACLU flagged its own bias (though it is supposed to be non-partisan) by referring to the wall in a statement as “xenophobic.”

Its lawsuit was based on alleged environmental harm risked by the wall’s construction, but the use of that word, a deliberately dishonest characterization that can only mean an endorsement of open borders , proves that the lawsuit is a sham, using environmental concerns to mask a pro-illegal immigration agenda, which most of the public opposes….as they should.

Merits of the wall aside, the game Democrats are playing with this issue, calling for undefined “comprehensive immigration reform” while opposing enforcement and refusing to recognize a genuine emergency to keep the President from a political victory, is electoral suicide. (Yet most of the field of Democratic challengers have endorsed decriminalization of border breaching, which is like an invitation to invade. Madness. Even Hispanic-Americans oppose this.)

A blind pig can find a truffle or two, and on this existential issue, the President has law, history, sovereignty, the national interest and common sense on his side.

2.  A clueless harasser gets a second chance.   Neil deGrasse Tyson, the pop-culture astrophysicist who leads the Hayden Planetarium at the American Museum of Natural History, has been cleared to continue in his job  after the museum competed  an investigation into three sexual misconduct accusations against him. Continue reading →

Slow Friday Ethics Pick-Me-Up, 7/19/2019: The Chant, The View, The Times, The Recidivist, The Fire, The Comic

/ Jack Marshall / 39 Comments

Let’s see…what’s percolating today?

1. Do they even teach the First Amendment any more? I wonder how many of the Trump supporters who chanted “Send her back!” regarding Rep. Omar were doing so tongue in cheek, and realized that the U.S. can’t “send back” naturalized citizens? I admit that I’m rather afraid of the answer.

Yes, there’s a big difference between the President’s “why don’t they go back” line in his stupid tweets and “send her back,” but there’s no way he can escape some accountability for the ugly chant. He now says he disagrees with it, and except for those who will always assume the worst motives in this President, there is no reason to doubt that; after all, if he believed she should be “sent back,” he would have tweeted as much himself.

Of course, when network-anointed “experts” on social policy and politics like the ladies of “The View” broadcast ignorance of the First Amendment to their loyal and gullible audience, it doesn’t help. Co-host Joy Behar—is she the dumbest one on the panel? I think so— asked yesterday why President Trump had yet to face any legal consequences for “hate speech” directed at Democratic Rep. Omar, blathering, “Why can’t he be brought up on charges of hate speech?Why can’t he be sued by the ACLU for hate speech? I don’t get it. How does he get away with this?”

“Hate speech is tricky,”  was the best that cowardly former federal prosecutor Sunny Hostin could muster to clarify matters, making things worse. There is no such thing as “hate speech” in the law, which means it is more than “tricky,” it is a delusion, unless one means “hateful speech,” which can be a subjective definition, but is nonetheless protected by the Constitution.

If ABC were a responsible network, a comment like Behar’s should trigger an instant on-air intervention in which a team of law professors, judges and maybe a literate 6th grader or two burst onto the set and explain to this fool what freedom of speech means. Continue reading →

Ethics Observations On Three Recent Judicial Decisions

/ Jack Marshall / 25 Comments

)

I.

An appeals panel throws out the emoluments lawsuit filed by D.C., Maryland.

A three-judge panel of the US Court of Appeals for the 4th Circuit  held that the District of Columbia and Maryland lack standing to sue President Donald Trump over claims related to his hotel in Washington, D.C. The court  ordered a lower court to throw out the lawsuit with prejudice, meaning the lawsuit alleging violations of the Constitution’s emoluments clause could not be refiled.

Good.

The Emoluments Clause nonsense has been one of the more contrived “resistance” theories and this lawsuit was part of the organized plan of harassment against the President. Two Democratic jurisdictions filed this purely political suit as their contribution to the “resistance.”

“Even if government officials were patronizing the hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the president enjoined from receiving income from the hotel,” the 36-page opinion said. “The hotel would still be publicly associated with the president, would still bear his name and would still financially benefit members of his family….Neither [emoluments] clause expressly confers any rights on any person, nor does either clause specify any remedy for a violation.”

The unique conflicts of interest issues presented when a multinational business owner becomes President was never imagined by the Founders, and once Trump was elected it was too late to deal with the problem equitably. The Democrats and the news media, not to mention Trump’s Republican rivals for the nomination and the legal establishment—and commentators like me, all neglected their duty to raise the issue in a timely fashion, mostly because they never thought Trump would win. They are all at fault for their own mistake. At some point, however, the issue has to be examined fairly and non-politically, with rules emerging that do not make the Presidency unachievable by anyone who is not a professional politician.

II

Continue reading →

Comment Of The Day: “Unethical Times Op-ed Of The Week?”

/ Jack Marshall / 29 Comments

Timothy Egan’s spectacularly dishonest op-ed for the Times, “The Founders Would Gag at Today’s Republicans: The cult of Trump has embraced values and beliefs that Jefferson, Washington and Lincoln abhorred,” was one more conservative- and Trump-bashing exercise disguised as a history lesson, albeit for Americans who know little about history and foolishly assume that they can trust pundits like Egan to enlighten them. Of course, all such exercises in time-traveling appeals to authority are inherently dishonest. 18th century minds, even those as sharp and creative as the Founders possessed, would go into shock at most of what they saw today if somehow provided the opportunity, and would take a while to understand why things have evolved as they have.

Frequent commenter JutGory sat down and treated Ethics Alarms readers with an analysis of developments the Founders would have had trouble with without indulging in the sort of cherry-picking and distortion Egan did to pander to the Times’ progressive readership. The result of what Jut called his “retro-prognostications” is a genuinely educational post, and a distinguished Comment of the Day.

Here it is:

If we are doing retro-prognostications, I bet I could do better:

Disclaimer: the Founders would probably be a bit mystified at the technological advances in general.

They would not be surprised by the abolition of slavery. They would be half-surprised that it took a war to do it (“We put in an amendment process for pretty much this reason, people!”)

They would probably be surprised at how much power the Supreme Court (the weakest branch) wields. Of course it only wields that much power because the other branches have gotten more powerful. To wit:

They would be surprised by the 16th Amendment (income tax), as it is a direct tax of the individual by the Federal Government, but okay (“Yay, Amendment process).

Of course, money is power, so, with more tax money comes more power.

They would be completely baffled by the 17th Amendment (direct election of Senators). That opens the Senate up to national influences, instead of influence from a small group of state legislators. That was kind of the whole point of the Senate: to represent the States, not its citizens.

But, you can’t pass a farm subsidy bill if Senators answer to their legislatures.

Can’t get universal healthcare if Senators stand in the way.

But, you change the Senate selection process, you get popular candidates, supported by national appeal and no specific understanding of the needs of the State (Hello, Al Franken!)

The power grab of the Commerce Clause would puzzle them. Continue reading →

Unethical Times Op-ed Of The Week?

/ Jack Marshall / 18 Comments

Incredibly, they were all great believers in same sex marriage, a massive federal bureaucracy, and banning coal…

That’s always a tough call, but reliably biased and dishonest Timothy Egan, one of the New York Times deep bench of shameless left-wing ideologues, has a likely winner with his essay, “The Founders Would Gag at Today’s Republicans: The cult of Trump has embraced values and beliefs that Jefferson, Washington and Lincoln abhorred.”

To begin with, the trick of claiming that the Founders’ approval or disapproval of any modern day policy or position is intellectually dishonest on its face, unless one is as historically ignorant as a brick, which is what con-artist pundits like Egan is counting on. It reminds me of when Bill Clinton (speaking of con artists) told a crowd that Thomas Jefferson would be shocked to find that Americans today didn’t have national health care. That was the moment I realize that Bill would say literally anything, no matter how ridiculous, if he thought he could reap short-term gains and get away with it.

Needless to say (except that I do need to say it because of fatuous liars like Egan), the Founders would gag at the values and positions of  both Democrats and Republicans,  because they lived in a largely agrarian society 250 years ago. Washington executed a soldier who was caught engaged in homosexual activity. Same sex marriage? Abortion? Transgender rights? The Founders didn’t believe that women should be able to own property or vote: how does Egan dare play the game of cherry-picking the Republican beliefs that they would consider “un-American”? Continue reading →