Monthly Archives: June 2017

There seems to be confusion among some Americans about what constitutes freedom of speech in the nation. The issue arose because at least 10 students who had been admitted to Harvard University have had their acceptance revoked. They had apparently authored racially or sexually offensive memes on a social media site. The Harvard administration decided that such conduct disqualified them for admission.

Critics assert that Harvards action constitutes a violation of the right of free speech. Hardly. While revocation of acceptance is a severe consequence, it is never too early for the young to learn that every individual must assume responsibility for their statements. In the past, comments attracting censure were usually made on the radio, in print or in the public square. Now social media, which are generally accessible, have led to a loss of privacy, and created another hazard because of the publics fascination with technology.

The Russian invasion of the countrys election process demonstrates that privacy is readily invaded. Citizens and institutions have the right to react adversely to publicized comments. Publishers must properly identify the authors of comments, and those wishing to remain anonymous must evade the long reach of technology.

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Free speech revisited at Harvard University - BayStateBanner

It distresses me to see episodes these days in which speakers who are controversial for their conservative or ultra-conservative views are prevented from delivering invited remarks at universities (including public universities) because protestors choose to violate laws designed to protect public safety. It also distresses me to see so few liberal analysts decry how illiberal these episodes of group-imposed censorship are.

As I have written at length elsewhere, no matter how repressive or otherwise abhorrent a speakers message, the appropriate response under our Constitution is counter speech, not shouting down or physically obstructing or threatening the speaker or the speakers audience. To be sure, protesting a speakers presenceregistering profound objection to a speakers viewpointis perfectly appropriate and has a rich tradition dating from even before the 1960s free speech revolution through the Occupy movement. But what we have seen over the past several months is a transition from protesting against bad speakers to preventing them from being able to speak, and that is not acceptable.

An unflinching commitment to freedom of speecheven odious, racist, sexist, hateful speechis the cornerstone of constitutional democracy in the United States. Certainly we protect freedom of speech more vigorously than any other western democracy. We also have a venerable tradition of respecting academic freedom at colleges and universities.

These two principles, freedom of speech and academic freedom, overlap and are interconnected, even as they are distinct ideas. Freedom of speech is a broadly applicable right codified in the federal First Amendment and state constitutional analogues that protects speakers both on and off public campuses from unwarranted government interference with expression. Academic freedom, which may extend beyond what the Constitution protects, is grounded on the idea that, at least in the academy, free inquiry unburdened by the constraints of orthodoxy will lead to the development of new ideas and knowledge.

Notwithstanding their different scopes, both freedom of speech and academic freedom rest on the bedrock belief that ideas and arguments ought to be evaluated on their substance. The essence of both kinds of freedom is the opportunity to persuade others of the merits of ones argument, rather than the use of power to coerce others into acceding to the proponents point of view.

Sometimes the heat and passion of political protests on college campuses causes these basic principles to be overlooked or ignored. When that happens, it is important for us to go back to what freedom of speech and academic freedom really mean and how easily both of these principles can be misused and misinterpreted.

The short of the matter is that blockading, obstructing, assaulting, destroying property, and making threats, are not, in any stretch of the imagination, constitutionally protected things to do, no matter what the objective behind them. These activities are conduct the government has always had the legitimate authority to proscribe because they so obviously interfere with the liberty and lawful pursuits of others.

As the Supreme Court of California stated in an important free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals unruly assertion of their rights of free expression does not imperil other citizens rights of free association and discussion. Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

Government actions to prohibit blockades or obstruction have been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and those cases raise harder questions than do generic obstruction laws because FACE targets specific places where protestors with particular messages may be expected.

Blockades and obstructions can and should be prohibited consistent with the First Amendment primarily because they are not intended to and do not persuade anyone of the merits of the protestors position. They are employed to coerce third parties to change their behavior, not their minds. As such, they are actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded a commitment to the power of ideas rather than the use of force to change the way that people act.

In recent weeks, I have heard defenders of those who obstruct conservative speakers make two novel but completely unconvincing arguments. First, the obstruction defenders try to invoke the civil rights movement by pointing out that Martin Luther King, Jr. and his supporters were often guilty of civil disobediencethat is violating duly enacted laws. But this analogy is unavailing because King and his followers were violating laws that were (in the eyes of the protestors and many others) themselves unjust, not laws that were completely unobjectionable but simply stood in the way of the desires of the violators. Another distinction between the two settings is that to the extent that civil rights protestors violated laws regulating their political activity, they were violating laws in order to be heard themselves, not in order to prevent others from being heard. But todays obstructors cannot credibly complain that they cannot be heard; they simply want others not to be listened to.

The second creative yet deeply flawed argument Ive heard in defense of the obstructors is the idea that controversial speakers of the kind who are being suppressed are themselves not appropriate speakers to be invited to university settings because they are not sufficiently academic in character. Putting aside the fact that these speakers were invited (whether they ought to have been or not), and putting aside whether some of these speakers do have some academic bona fides (even if their ideas are often very wrong-headed), this argument mischaracterizes the kind of speakers who belong at universities. Higher education is a place not just to sharpen ones critical thinking skills through exposure to brilliant academics who make data-informed arguments in multiple directions; it is also a place where one should learn how to become a full citizen in American society. As the Supreme Court observed in the context of high school students in Tinker v. Des Moines Independent School District, this often means that students need to engage each other on the contentious political issues of the day. And in todays college world this sometimes means hearing and evaluating strident political advocates, some of whom even border on demagoguery.

To be sure, student and faculty organizations should give some thought (perhaps more thought than they currently do) to the question of whom they invite to speak on campuscertainly not everyone should be offered a platformbut many campus speakers, on the Left as well as the Right, are not particularly grounded in rigorous theoretical or empirical analysis, and this does not mean that they are per se inappropriate speakers for college audiences. Again, colleges should be preparing young people not just to navigate the economy, but also to navigate democracy. And, for better or worse, modern democracy means having to deal with a lot of ideas that are widely held even though they dont hold up to analytic rigor. Debunking those ideasnot shouting them down or trying to suppress their expressionis what I want my students to learn how to do.

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Remaining Faithful to Free Speech and Academic Freedom - Justia Verdict

Its official. Doctors may talk to their patients about gun safety.

Florida had passed a law in 2011 that had restricted the ability of physicians to speak on that subject.

Called Docs vs. Glocks, it was a blatant attack on the First Amendment that did not rise to the level of other constitutional restrictions on free speech, such as slander, libel or falsely yelling fire in a crowded theater.

Had the law survived legal scrutiny, it might have served as model for the rest of the nation, much like Stand Your Ground.

The bill had been based on a few unfortunate incidents, especially one in which a physician asked a patient a standard question about gun safety in the home, the patient refused to answer and the physician then refused to treat.

The doctor-patient relationship is a sacred one. And in a free society, doctors and patients have the right to fire each other.

A lawsuit challenging the bill had been upheld by several three-judge panels in the 11th Circuit of the U.S. Court of Appeals. Finally, however, the full appellate court overturned the law, 8 to 3.

The state of Florida recently let the deadline pass for continuing an appeal. So now its final.

The law basically was an example of political correctness gone wild. As the court mentioned in its decision, there was no evidence that doctors had taken away patients firearms precisely because they have no right to do so.

The record-keeping, inquiry and anti-harassment provisions of the law were struck down, but the anti-discrimination portion was deemed constitutional.

The Bill of Rights sometimes requires the courts to find a balance between individual rights, such as right of free press and the right to a fair trial.

Some proponents of the Second Amendment appear to be trying to carve out a special level for the right to bear arms based on he phrase, the right to bear arms shall not be infringed.

In his book, Shall Not Be Infringed, authors David Keene and Thomas Mason assert that the phrase places the Second Amendment on its own tier of rights.

They write that much of the gun control debate relies on symbolic and nonexistent solutions that would do little, if anything, to reduce gun violence or gun crimes. They offer several persuasive examples, such as the so-called gun show loophole 90 percent of guns sold at gun shows are already sold to federally licensed firearms dealers who conduct background checks.

By the same token, Floridas Firearms Owners Privacy Act was a classic overreaction to a nonexistent problem.

This issue wasnt all that difficult.

The Second Amendment, in clarifying the right to own guns, refers to a well regulated militia.

What did the Founders mean?

One example was described in the book The Second Amendment: A Biography by Michael Waldman.

In 1792, Congress passed a law requiring every free and able-bodied white male citizen between 18 and 45 to enroll in a state militia and buy a gun. Basically, it was a draft.

Congress established a nationwide registry of privately owned guns for militia use, called a return.

The public largely ignored the law.

CONGRESSMAN PAYS FOR ATTACK ON REPORTER

Justice was done in the inexcusable attack by U.S. Rep. Greg Gianforte, R-Montana, on a reporter for the Guardian, Ben Jacobs.

The reporter simply asked the congressman about the cost of the Republican health care plan during a campaign event. Gianfortes response was to slam Jacobs to the floor.

Gianforte was convicted of assault, sentenced to 40 hours of community service and 20 hours of anger management, The New York Times reported. He also issued an apology to the reporter and paid about $4,500 in expenses to the reporter.

Current tension in the country has resulted in verbal attacks on the press, sometimes led by the president, that can feed into this kind of assault.

SCHOOL BOARD: USING RESERVES wisely

The Duval County School Board is right to use reserves as a result of the Legislatures irresponsible overmanagement of the states school districts.

At the same time, board members are right to be cautious and responsible, realizing that these are one-time funds that are meant to be used in emergencies.

Florida law requires a 3 percent reserve; Duval maintains 5 percent, so there are funds available.

The goal of repaying the reserves is consistent with responsible stewardship.

UPGRADE THE MILITARY

Evidence that Americas military might has been allowed to slip under President Barack Obama came home in a recent news stories.

As reported in The Wall Street Journal, only three of the Armys 58 brigade combat teams are at full readiness.

More than half of the Navys aircraft cant fly because they need parts or maintenance.

The Air Force is short about 1,500 pilots and 3,000 mechanics.

And in April, the Navy announced the grounding of T-45 jets after 100 instructor pilots went on strike due to concerns about hypoxia-like conditions in the cockpits, reported military.com.

Also two-third of the Navys strike fighters cant fly because their undergoing maintenance or waiting for parts, reported defensenews.com.

The Navy cant get money to move sailors and families, about $440 million is needed to pay sailors and 15 percent of shore facilities are failing.

The headlines and the political support typically go to sexy new weapons systems, but its clear the nations leaders have been failing to keep Americas most respected occupation in tip-top shape.

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Thursday Editorial: Freedom of speech returns to the doctor's office ... - Florida Times-Union

Lets not mince words. Once again, the courts have rescued the people of Florida from the extremism of their own Legislature.

Attorney General Pam Bondi and Gov. Rick Scott let the deadline pass to appeal to the U.S. Supreme Court the decision striking down the gag order on doctors in the infamous Docs v. Glocks case.

Whether this was an intentional decision to throw in the towel on this dangerous and unconstitutional restriction on freedom of speech or simply neglect, we dont know. But any threat to strip a doctor of his or her license for talking to patients about the safe storage of guns in the home has been removed.

The American Civil Liberties Union, aided by an exceptionally skilled legal team, worked for six years on behalf of more than a half-dozen medical, pediatric and childrens rights organizations in support of the doctors who courageously challenged the states effort to gag their discussions with patients about gun safety and especially keeping guns out of the reach of children.

Yes, there is a constitutional right to own a gun. We all get that. But our legislature was conned into swallowing the fiction that talking about guns and gun safety somehow threatened this constitutional right.

What is important now is that every doctor in Florida knows that the First Amendment right guaranteeing freedom of speech once again provides protection for the medical community to honor its mission to protect the health and lives of patients. And this includes counseling patients who own guns to ensure that they are safely stored to prevent suicides and out of the reach of children to prevent tragic accidental shootings.

And this includes counseling patients who own guns to ensure that they are safely stored to prevent suicides and out of the reach of children to prevent tragic accidental shootings.

One of the many reasons that this case was so important is that Florida became a test case. If the courts didnt stand up for the free speech of doctors, you could be sure that the National Rifle Association would have had this dangerous law introduced in every state. But the strong affirmation of free speech by the federal appeals court hopefully ends this deadly threat here.

This victory for the freedom of speech for doctors and the medical community had to overcome the collective opposition of very powerful forces, including the NRA, which sponsored this dangerously mistaken policy, the Legislature that adopted it, the governor who signed it, and the attorney general who defended it in the courts.

But after six years, that is now thankfully behind us.

Editors note: Howard Simon is executive director of the American Civil Liberties Union of Florida.

Our Legislature was conned into swallowing the fiction that talking about guns and gun safety somehow threatened the constitutional right to bear arms.

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POINT OF VIEW In 'Docs v. Glocks', a win for free speech, public health - Palm Beach Post