Daily Archives: January 7, 2020

David L. Hudson Jr. | The ‘bedrock principle’ of the First Amendment – TribDem.com

Posted: January 7, 2020 at 9:56 pm

Many people recoil at the notion that the First Amendment protects the speech that they most dislike or detest.

The late great Nat Hentoff captured this censorial impulse in his Free Speech for Me, But Not for Thee.

But the reality is that the First Amendment protects much speech that is obnoxious, offensive and repugnant.

Justice William Brennan captured this principle eloquently in his majority opinion in the flag-burning decision Texas v. Johnson (1989):

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

The case involved the protest activities of Gregory Lee Johnson, who burned an American flag in 1984 in Dallas, the site of the Republican National Convention. While Johnson doused the flag with kerosene, others chanted, America, red, white and blue, we spit on you.

Johnson and others protested the policies of the Reagan administration and a coming second term for the president.

Of all the protesters, authorities arrested only Johnson and charged him with violating a Texas flag desecration law.

The court decided the case by the narrowest of margins, 5-4. Brennan emphasized that the state of Texas essentially was punishing Johnson for his dissident political views more than tarnishing a venerated object.

The way to preserve the flags special role is not to punish those who feel differently about these matters, Brennan wrote. It is to persuade them they are wrong.

In dissent, Chief Justice William Rehnquist analogized Johnsons burning of the flag to fighting words. But, in this case, Brennans view prevailed.

A lasting legacy of Brennans opinion in Texas v. Johnson is his bedrock principle phrase, which has come to represent a cardinal principle of First Amendment law that the First Amendment protects much offensive expression.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont University.

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Executive Order on Anti-Semitism Could Suppress First-Amendment-Protected Criticism of Israel – Reason

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[1.] President Trump's Executive Order on Combating Anti-Semitism begins by noting that, though Title VI of the 1964 Civil Rights Act only bans "discrimination on the basis of race, color, and national origin"and not religion"in programs receiving Federal financial assistance,"

Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual's race, color, or national origin. It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.

That strikes me as quite sensible. Much discrimination against Jews stems from hostility to Jews as an ethnic groupa group linked by ancestry and culture, quite apart from religion. In this respect, it's much like discrimination against, say, people of Hispanic or Arab ethnicity. Whether such ethnic discrimination against Jews qualifies as forbidden discrimination based on race or national origin turns out to be surprisingly unsettled, as I discussed in a September 2019 post (Is Rejecting Someone Because of His "Jewish Blood" Race Discrimination Under Title VII? National Origin Discrimination?). But there are ample precedents for the view that ethnic discrimination is race/national origin discrimination (again, see that post for more), and I think the Administration's position rightly endorses that view.

[2.] But the Order also goes on to say,

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments shall consider the following:

(i) the non-legally binding working definition of anti Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities"; and

(ii) the "Contemporary Examples of Anti-Semitism" identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent.

(b) In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment. As with all other Title VI complaints, the inquiry into whether a particular act constitutes discrimination prohibited by Title VI will require a detailed analysis of the allegations.

The IHRA examples state that "Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to":

Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.

Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collectivesuch as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.

Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.

Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).

Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.

Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.

Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.

Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.

Drawing comparisons of contemporary Israeli policy to that of the Nazis.

Holding Jews collectively responsible for actions of the state of Israel.

This, I think, has the potential to unconstitutionally suppress speech. Let me explain why.

[A.] To begin with, imagine that President Bernie Sanders issues the following Executive Order:

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin against Palestinian-Americans, all executive departments shall consider the following examples to the extent that they might be useful as evidence of discriminatory intent:

Denying the Palestinian people their right to self-determination, e.g., by claiming that any Palestinian state would lead to terrorist attacks on Israel.

Applying double standards by requiring of Palestinians a behavior not expected or demanded of any other group that is waging an insurrection against an oppressive government.

Drawing comparisons of contemporary Palestinian policy and attitudes towards Jews to those of the Nazis.

Holding Palestinians collectively responsible for actions of Palestinian de facto governmental organizations.

Justifying the killing or harming of Palestinians in the name of protecting another nation's security, or on the theory that it is acceptable collateral damage in the other nation's defensive operations.

The premise in the first paragraph is legally accurate: Discrimination against Palestinian-Americans is likely already prohibited by Title VI as discrimination based on race or national origin, just as discrimination against Hispanics or Arab-Americans is already prohibited. But I take it that we'd be concerned that the following exampleseven if cast just as examples of what might be useful as evidence of discriminatory intentare likely to (and probably intended to) deter people from expressing their political views about the Israeli-Palestinian conflict.

To be sure, one can draw distinctions between the examples I give above and the examples in the IHRA Anti-Semitism statement. For instance, some people argue that it's illegitimate to deny to Jews a right to have a nation of Israel, because it already does exist, but legitimate to deny the Palestinians a right to have a nation of Palestine, because it has not been officially recognized. (I'm quite skeptical of the view that official international recognition should make a difference for which arguments are legitimate, and especially for which arguments are protected by the First Amendment.) Or some might say that, in their experience, the view that Jews don't have a right to national self-determination is highly correlated with anti-Semitism but the view that Palestinians lack such a right is not highly correlated with anti-Palestinian prejudice.

But do you think it's likely that courts will indeed reliably accept such distinctions? Or, if a court were to uphold President Trump's Executive Order, would that decision be a powerful precedent in favor of the constitutionality of the hypothetical order from President Sanders?

[B.] More specifically, one problem with the real Executive Order (as well as the hypothetical Order) is that speech has in recent years often been labeled discrimination, on the theory that certain statements create a "hostile environment" and therefore violate antidiscrimination rules. Under this theory, a rule that "Drawing comparisons of contemporary Israeli policy to that of the Nazis" is "evidence of discrimination" means that a university could be punished under Title VI for allowing speech drawing such comparisons. Likewise, drawing such comparisons would violate campus speech codes that ban "discrimination" and "harassment."

The Lawfare Project's Dec. 18, 2019 complaint against Columbia, which cites the Executive Order, relies on precisely this theory. Among other things, it lists sharply anti-Israel (and pro-Hamas) public statements by Prof. Joseph Massad and Prof. Hamid Dabashi as examples of "discrimination against" the complainant and "discrimination directed at" other Jews or Israelis. (I received a copy of the Complaint with authorization to quote portions but not post it; it's not a court filing, so it apparently isn't a fully public document.) Likewise, the complaint takes the view that Columbia's refusal to silence such criticisms, or to publicly condemn them, has helped "create[] a hostile environment" in "violation of Title VI."

(Columbia's decision not to condemn certain statements would itself be an exercise of its own First Amendment right not to speak. But the complaint argues that "Although Dabashi has a right to free speech, the university has an obligation to either sanction or condemn this speech when it conflicts with university policies and federal law," and seemingly takes the view that the speech does "conflict[] with federal law.")

As David Bernstein has pointed out, the problem here partly stems from the view that public comments by students, professors, and others can violate antidiscrimination law if they create a "hostile educational environment" based on race, religion, sex, sexual orientation, gender identity, national origin, and the like. Many courts have struck down campus speech codes framed in such terms, but the government and various universities has continued to assert that such speech restrictions are constitutional.

But the Executive Order, it seems to me, exacerbates the problem by sweeping in anti-Israel speech (and not just overtly anti-Jewish speech) as potentially punishable "discrimination." Both anti-Israel speech and anti-Jewish speech are protected by the First Amendment (unless they fall within one of the narrow exception to First Amendment protection, such as for true threats). But broadening the unconstitutional restrictions is surely not a step forward.

Nor do I think that the Order's statement that, "In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment," helps much. The problem is that government officials often tend not to recognize that various speech, especially speech that is viewed as bigoted or "discriminatory," is protected by the First Amendment; the Order, notwithstanding its "shall not diminish or infringe language," tends to reinforce this attitude.

[C.] But say that the Executive Order were limited to what one might think of as purely evidentiary uses of speeche.g., if someone has been attacked, or had his property vandalized, or has been excluded from some university program, or given a low grade, and the question is whether the action was motivated by his being Jewish. That may be what at least one adviser to the Administration may have intended, according to this article in Haaretz (Amir Tibon):

Avi Berkowitz, a close adviser to Kushner and heavily involved in working on the executive order, says the answer is no. "A complaint against a lecture as you describe would not trigger Title VI," he says. "In order for Title VI to apply, there has to be actionable conduct. Title VI requires a certain level of conduct, and the executive order does not change that requirement. The lecture remains protected speech."

Let's set aside the possibility that, as some have argued, the creation or tolerance of a "hostile environment" would itself be treated by some as "actionable conduct," even if the environment stems just from speech that doesn't fit within any of the narrow First Amendment exceptions; and let's focus on the purely evidentiary uses I just mentioned.

Even for such evidentiary uses, I think the Executive Order is dangerous and unconstitutional, as my hypothetical Sanders Executive Order helps illuminate. Say that you are a professor who rejected a student's application to a graduate program. He claims that the rejection stemmed from his or his parents' having been born in Gaza. (Assume he's an American citizen, so the claim is of discrimination based on national origin, and not based on current citizenship, which would raise more complicated problems.)

You argue that, no, you rejected him because you thought his past scholarly work wasn't strong enough. He responds that, (1) under the hypothetical Sanders Executive Order, "Denying the Palestinian people their right to self-determination" is an example that "shall [be] considere[ed] to the extent that [it] might be useful as evidence of discriminatory intent"; (2) you had publicly argued against a separate Palestinian state; and therefore (3) that is evidence that you were biased against him based on his national origin.

I think such an argument would be quite wrong, and dangerous to academic freedom. If the argument were accepted, it would sharply chill advocacy of various views on the Israeli-Palestinian conflict, and the government has no business doing that. And of course the same is true of the actual Trump Executive Order.

Now I acknowledge that speech can be used as evidence of motive; indeed, sometimes it's the only such evidence. (See this post for more, including a discussion of some key Supreme Court cases on the subject.) Even in the absence of any Executive Order, if a professor publicly says "All Jews are scum and I hate working with them" or "all Palestinians are scum and I hate working with them," that could be evidence that a particular action by a professor with respect to a student was deliberate discrimination based on ethnicity. The same would be true if a student is being accused of punching a classmate or vandalizing the classmate's property based on the classmate's being Jewish or Palestinian.

But when there is such concrete evidence of ethnic hostility, the Executive Order is unnecessary. The Order would make a difference only in cases where statements overtly expressing ethnic hostility are weak or even absent, and the evidence stemming from one's views on the Israeli-Palestinian conflict would then be brought in.

The closest analog in the Supreme Court precedents (not a perfect analog, but I think a helpful one) is the presumption struck down in Virginia v. Black (2003). There, the law banned cross-burning with the intent to intimidate; and some such cross-burning (e.g., burning a cross in front of a black family's house with the intent to make them fear that physical violence would be next) may indeed be punishable, when it falls within the First Amendment exception for true threats of violence. But the law also added,

Any such burning of a cross [including in any public place] shall be prima facie evidence of an intent to intimidate .

The Court held that this "prima facie evidence" provision violated the First Amendment, for reasons stated by Justice Souter (joined by Justices Kennedy and Ginsburg), and agreed with by Justice O'Connor (joined by Chief Justice Rehnquist and Justices Stevens and Breyer):

As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public.

In such a case, the prima facie evidence provision will have the practical effect of tilting the jury's thinking in favor of the prosecution. [T]he provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression.

To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. The question here is [whether] the statute's terms show that suppression of ideas may be afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful.

I think the same reasoning applies here. If a university responding to a student complaint, or the Department of Education Office for Civil Rights determining whether a university's response was inadequate, sees the usual sorts of evidence that would normally prove discriminatory motivation (e.g., "I hate Jews"), it can certainly rely on that evidence.

But the Executive Order, by listing specific political statements as potential evidence, "skew[s] [the decisionmaker's] deliberations toward [a finding of forbidden behavior] in cases where the evidence of [anti-Semitism] is relatively weak." It "tilt[s] the [decisionmaker's] thinking in favor of [a finding of guilt]" simply based on a professor's or student's expression of political views about Israel (or, in my hypothetical, about Palestinian organizations). If "[t]he question" is whether "the [Executive Order's] terms show that suppression of ideas may be afoot," those terms have "a very obvious significance as a mechanism for bringing within [Title VI's] prohibition some expression that is doubtfully [evidence of discrimination]."

[* * *]

On the merits of the Israeli-Palestinian controversies, I generally support Israel; and I don't always support arguments that various attempts to protect Israel or Israelis from discrimination violate the First Amendmentconsider, for instance, my amicus briefs (e.g., this one), filed on behalf of Prof. Michael Dorf, Prof. Andy Koppelman, and myself, arguing that various state anti-BDS statutes do not violate the First Amendment. (My position there is that actual refusal to deal with Israel and Israelis are not protected speech, even if they are politically motivated, just as refusal to deal with Muslims or Christians are not protected speech.)

But here it seems to me (as I've argued before as to similar proposals) that the Executive Order really does risk suppressing not just discriminatory conduct but speechspeech that I generally disagree with, but speech that is fully constitutionally protected.

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Pro/Con: Can elected officials block you on social media? Yes, the Constitution can’t be applied to private tweets – Duluth News Tribune

Posted: at 9:56 pm

The part that is missed is the first five words of the First Amendment: Congress shall make no law. It was designed to limit what laws Congress could create. In doing so it also limits the Executive Branch, as its relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they dont like but it doesnt stop individuals acting in their private capacity.

Upon creating official government accounts @WhiteHouse or @DepofDefense, as examples the government creates designated public forums where people can respond to official tweets. If the government were to block people from responding to these accounts because the government didnt like their opinions, it would be engaged in viewpoint discrimination, and that is prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldnt be discriminating based on viewpoint.

But most elected officials are legislators and not even a part of the Executive Branch. They almost always created their accounts long before they were in office as their personal account. Even a campaign account would still be private, not a government account. The First Amendment only limits the laws that Congress passes as a body; it does not limit individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue; that is their property.

The story becomes a bit more complex for the accounts of the president and vice president. They are part of the Executive Branch and so are limited in their official acts by the First Amendment. The official accounts of the president, including @POTUS, are government accounts created and set up as designated public forums by the government. Thus, the government is limited by the First Amendment.

But what about @realDonaldTrump: Is that an official account? Trump acknowledged that he uses the account to, among other things, announce official decisions. The White House press secretary said the tweets are considered the official statements by the president of the United States. The president used the account to announce the nomination of the new FBI director and his new ban on transgender individuals in the military.

Given these facts, the Second Circuit Court of Appeals found that the president chose to transform his personal account into an official government account. This means he no longer is able constitutionally to block people from responding to his tweets based on viewpoint.

The problem for the Second Circuit is when this occurred. By what act did the president transform his previous private account into the public one of his office? Merely speaking about his official acts through the account isnt enough. The Second Circuit isnt exactly clear as to when this happened. The fact that the account was created before Trump was president and will likely continue as a private account after he leaves is a strong factor suggesting the Second Circuit may be wrong and that other courts may decide the same issue differently.

But, at least for Trump, it doesnt matter, as the Second Circuit has decided Trump has adopted his Twitter account as an official account of his office and therefore cannot block people.

While this limits the @realDonaldTrump account from being able to block people, the reasoning doesnt apply to almost any other elected official (most of whom are legislators).

It is possible the 2nd Circuit decision will apply to some state governors and other state executive-branch officials. It will turn on whether those officials used their Twitter account as the official account of their office, such as announcing official decisions.

But almost all elected officials are in the legislature, either federal or state; and as such their Twitter accounts cannot possibly be limited by the First Amendment. There was no law upon which such accounts base their authority, and so the First Amendment simply doesnt apply.

Devin Watkins is an attorney for the Competitive Enterprise Institute (cei.org), a nonprofit libertarian think tank based in Washington, D.C. He wrote this originally for InsideSources.com.

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Pro/Con: Can elected officials block you on social media? Yes, the Constitution can't be applied to private tweets - Duluth News Tribune

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How Fascism Works with Jason Stanley; Plus: How the Supreme Court is Weaponizing the First Amendment – KPFA – 94.1FM

Posted: at 9:56 pm

0:08 Jason Stanley is a professor of Philosophy at Yale University. Hislatest book is How Fascism Works.

0:34 William Bennett Turner has argued cases before the US SupremeCourt, covered legal issues for public television, published widely onfree speech, and taught courses on the First Amendment at UC Berkeley for more than three decades. His latest book is Free Speech for Some: How the Supreme Court is Weaponizing the First Amendment to Empower Corporations and the Religious Right.

1:08 Suyi Davies Okungbowa is a Nigerian author of stories featuringAfrican gods, starships, monsters, detectives and everythingin-between. He is an MFA candidate in Creative Writing at the University of Arizona, where he teaches writing, and has worked in editorial at Podcastle and Sonora Review. His latest work is a godpunk novel, David Mogo, Godhunter.

1:34 Jane Stoever is a professor at the University of California, IrvineSchool of Law, where she directs the Domestic Violence Clinic andthe Initiative to End Family Violence and teaches Family Law andLegal and Social Responses to Domestic Violence. She alsoco-chairs the Orange County Domestic Violence Death Review Team.Her research concerns domestic violence law, family law, firearmsand family violence, and feminist legal theory, and her scholarshipincludes the new edited volume The Politicization of Safety.

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How Fascism Works with Jason Stanley; Plus: How the Supreme Court is Weaponizing the First Amendment - KPFA - 94.1FM

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Five Years Later, We Still Havent Learned from the Charlie Hebdo Massacre – National Review

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Flowers and candles are seen outside the satirical newspaper Charlie Hebdos former office on the fifth anniversary of the attack and a siege at a Kosher supermarket which killed 17 people in Paris, France, January 7, 2020.(Gonzalo Fuentes/Reuters)Giving a bunch of religious extremists or government bureaucrats veto power over our speech doesnt make us safer. It just makes us less free.

Five years ago today, two French Islamists forced their way into the Paris editorial offices of the satirical newspaper Charlie Hebdo and began shooting. The journals offices had been moved to an unmarked building after they were hit by a 2011 firebombing in response to the publication of a satirical cartoon of the Prophet Mohammed. The shooters managed to kill twelve people. A related attack soon followed in a kosher supermarket, where four Jews were murdered by a friend of the shooters.

Even today, the papers editor, whos published offensive caricatures of popes and rabbis, lives under police protection for the crime of slandering Mohammed. Charlie Hebdo, whose circulation has dropped precipitously after an initial post-attack spike, is an ill-mannered slayer of sacred cows of a kind that, sadly, doesnt exist in the United States. The only American enterprise I can think of that has a comparable openness to skewering all faiths is South Park, but even its excellent brand of satire is staid by comparison.

For a brief moment after attack, the free world rallied around Charlie Hebdo. Je suis Charlie became a global rallying cry. The massive march through the streets of Paris that followed included virtually every major world leader, including those hypocrites who are happy to clamp down on free expression in their own nations. One leader conspicuously, and embarrassingly, absent from the proceedings was the president of the United States, Barack Obama. He sent the U.S. ambassador to France instead.

Its worth remembering some of the Lefts passive-aggressive victim-blaming after the second attack. Shooting people is wrong, wrote The Daily Beasts Arthur Chu, a guy who puts quotation marks around free speech when the thoughts being expressed offend his sensibilities. But, he warned, do not martyr the trolling satirists of Charlie Hebdo, and do not act in a way that valorizes free speech for its own sake. The latter is an argument we hear all the time today.

Taking a slightly different tack than Chu, Max Fisher at Vox lamented that these white French people were punching down at powerless brown people. Fisher now works at the New York Times, a publication that has no compunction punching down when it comes to American Christians. If an anti-abortion extremist shot up a major newspaper, would anyone argue that the shooting was terrible, but we really should start thinking about pulling our rhetorical punches when it comes Evangelical conservatives or pro-lifers? Doubtful.

Criticism of Islam is a completely legitimate form of political speech, as is criticism of Catholicism and Mormonism and Judaism and Scientology, all of which Charlie Hebdo has also satirized. We have no responsibility to respect anyones ideas about the world, or the afterworld, nor do we have any right to expect to live in a world free of offense. The argument that a subset of people in this case Muslims should be afforded special protections from open discourse is itself a bigoted way of saying you dont believe Muslims can live peacefully in the free world.

Then again, over the past five years the United States has probably been irreparably infected by this authoritarian impulse to dictate rhetorical etiquette and appropriate political speech. The idea of passing hate-speech laws, long a norm in Europe Emmanuel Macron recently tried to push through a law governing social-media speech has been aggressively normalized in the United States over that span.

Its not just brittle Millennials who believe speech is tantamount to violence. Many polls show an increasing openness to hate-speech laws in the United States. We now have high-profile television personalities with (highly suspect) law degrees claiming that hate speech is excluded from protection under the First Amendment. We have research professors from the American Bar Foundation arguing that citizens should be barred from saying offensive words in the public square. It wasnt long ago that Richard Stengel, a former Time managing editor, was arguing in the flagship newspaper of the nations capital that the government should begin policing speech.

Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran, Stengel recollected. Even even! the most sophisticated Arab diplomats are working for theocratic and/or authoritarian states that not only fail to protect basic civil liberties but also occasionally behead, hang, and flog people for crimes against the Koran. Pardon me, but Im not surprised they dont get it. What Stengel should have told his sophisticated Arab friends is that free speech is a neutral principle, and that burning a Koran, like burning an American flag, is a political statement. The First Amendment doesnt let us do those things; it protects our inherent right to free expression, including expression condemning Koran-burners and flag-burners, without prejudice.

Then again, Stengel gives away the game when he asserts that open discourse is responsible for allowing Moscow to slip its destructive ideas into our media ecosystem. I realize hes distressed about Donald Trumps presidency, but taking to the pages of the Washington Post to argue that United States should function more like Putins Russia is a weird way to show it.

In any event, the trial of the terrorists who help facilitate the Charlie Hebdo massacre began this week. Only five of the 24 jihadists who helped plan the attack will be appearing in court. The other 19 suspects, most of them dead, had long ago left to fight in Iraq and Syria with ISIS. They were probably really mad about the tone of French political cartoons.

In the meantime, Charlie Hebdo should remind us that giving a bunch of religious extremists or government bureaucrats veto power over our speech is a terrible idea. It does nothing to make us safer. It only makes us less free.

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Accountability For Constitutional Violations Likely Has To Start With The Trivial – Above the Law

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There is a long and sordid history of faithlessness to the guarantees enumerated in the U.S. Constitution. After all, judicial review did not exist until 1803, and popular will could therefore effectually overrule, or at least incredibly frustrate, any Constitutional guarantee from the start. Yet, common fidelity existed enough to expand Constitutional guarantees to the states, as a direct consequence of a rebellion by some. After civil war, our countrys highest court refused to uphold the newly expanded Constitution, only for some of course, for nearly a century. Today many continue to make a persuasive case to many, that our courts are still failing.

But back to the positive for a moment. Wherever the expansion of Constitutional rights has occurred, with full legal force, it has identifiably resulted in a universally positive impact on American society. Nowhere is that fact more evident than with the expansion of First Amendment religious liberty and moral/social tolerance. Prior to the expansion of the First Amendment to the states, religious minorities were widely discriminated against by state governments. The state-sponsored discrimination was not due to religious minorities being denied the benefits of established state churches, as some have erroneously suggested, but rather by state support of religion at all, even in neutral form. In any case, the fact that states can no longer legally discriminate against religious minorities in the ways done before is a positive development of Constitutional expansion.

Despite the expansion, enforcement of the Constitution today, as it always has before, faces significant hurdles. Court-created immunities for government actors have resulted in a system that leaves citizens, in the words of a federal judge, violated but not vindicated. It just so happens, however, that Clark Neily, a Cato Institute scholar, has proposed a novel solution that is generating substantial praise in the field of constitutional law.

Neilys proposal can be summed up as simply combining two utterly commonplace features of our existing system: traffic tickets and small claims court. Imagine, Neily argues, a system where citizens can report constitutional violations as with any small claims court, that can include methods of introducing any documentation you might have, including a recording of the incident. The punishment in many cases need only be slight, a minor fine, again as with any traffic court, and made without any admission of liability by the government or its actors. Of course, application of Neilys proposal would likely mean that only trivial or minor constitutional offenses would stand the chance of being redeemed, and the more serious offenses would be left unaddressed.

Strong evidence exists, however, that gradual, incremental steps in the direction of human rights is a powerful engine for positive change and human flourishing. Rather refreshingly, that evidence is taken into account in Neilys constitutional small claims court proposal, as is the recognition that harsh punitive responses to violators, even where just, are self-defeating. Instead, Neily argues the system should harness the power of incentive in order to address minor constitutional harms, Ill let him explain it from here:

We provide a kind of bonus, equivalent to, say, ten percent of an officers current salary, and we put it in escrow at the beginning of the year [] And it is from that escrow account that awards against the officer in constitutional small claims court would be drawn. Thus, good officers who generate few if any meritorious claims in a given year will receive a nice bonus in the form of a substantially fully funded escrow account; but officers who generate lots of meritorious claims will receive little if any bonus and may even have to go into their own pockets if the money in their escrow account runs out before the end of the year.

Although Neily focuses his proposal on police officers, it could be applied to every government actor. Although the benefits might appear slight, I can attest from experience than even relatively minor or trivial deprivations of Constitutional guarantees can have a profoundly negative impact on citizens and that correcting, or at least acknowledging the violation can be equally profound positive effect.

Tyler Brokers work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free toemail himor follow him onTwitterto discuss his column.

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Accountability For Constitutional Violations Likely Has To Start With The Trivial - Above the Law

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The Future of Freedom in the Era of Dictatorial Rule – The National Interest Online

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OXFORD, EnglandA portrait of John Locke, considered the father of political liberalism, hangs in Christ Church Hall amid a gallery of honored graduates that includes John Wesley, William Pitt, Charles Boyle, and William Gladstone. But on the eve of Englands Glorious Revolution in 1688, Locke was a political fugitive living in exile, having been expelled from his Oxford University post for promoting certain pernicious books and damnable principles.

Despite his rehabilitation, Lockes principlesgovernment by consent, political equality, religious liberty, and the right to resist tyrannyare as controversial as ever. Indeed, nearly every international crisis today involves an argument between Locke and Thomas Hobbes: a debate over the right to live in freedom vs. submission to dictatorial rule.

Consider the political landscape in places such as Hong Kong, China, North Korea, Russia, Turkey, Syria, Saudi Arabia, Iran, Pakistan, and Venezuela. In each case, Lockean ideas about human equality and self-government are being devoured by the Hobbesian Leviathan. In each case, the rule of law cannot be counted on to protect the rights of minorities and political dissenters. The resultas Locke predictedis social unrest and revolution. When both sides are armed, the stage is set for civil war. For when the people are made miserable, and find themselves exposed to the ill usage of arbitrary power, Locke warned, they will be ready upon any occasion to ease themselves of a burden that sits heavily upon them.

Lockes world was not so different from our own. Over his lifetime (16321704) he witnessed populations convulsed by the English Civil War, regicide, religious extremism, show trials, executions, and the suspension of civil liberties. He saw firsthand a campaign of religious persecution that sparked a refugee crisis in the heart of Europe. Ultimately, Lockes liberal principles triumphed in the West. Yet the story of his achievement, ripe with lessons for our own age, is being neglected.

When Hobbes pondered the realities of European society, he saw a state of nature in chaos: a ruthless war of all against all. The only remedy, he believed, was a universal submission to an all-powerful political authority. Locke saw something else: the human capacity for rational self-government. This is the subtext of Lockes Essay Concerning Human Understanding (1689), considered part of the canon of Western philosophy. The leading philosopher of his age, Locke nevertheless preferred the reasoning of ordinary people to the learned gibberish of intellectuals and religious scholars. The candle that is set up in us, he wrote, shines bright enough for all our purposes.

Chief among those purposes, Locke argued, was the creation of a political society built upon our natural rights to life, liberty, and property. Unlike Hobbes, Locke envisioned a state of nature rooted in a fundamental moral law: the protection of human freedom so that every individual could pursue her divine calling and serve her true sovereign. For men being all the workmanship of one omnipotent and infinitely wise Maker; all servants of one sovereign Master, sent into the world by His order and about His business, he wrote in Second Treatise of Government (1690). They are His property, whose workmanship they are made to last during His, not anothers pleasure. The agents of Leviathan not only violate Gods moral law but put themselves into a state of war with the people. The American Founders would take note.

In seventeenth-century Europe, however, political absolutism was sanctioned by religious authorities, armed with hyper-patriarchal interpretations of the Bible. Any progress toward a more liberal, egalitarian society required a theological revolution in the European mind. Locke sought to instigate it.

It is true that Locke shared the enlightenment critique of militant Christianity and its capacity to unleash profound wickedness: All those flames that have made such havoc and desolation in Europe . . . have been at first kindled with coals from the altar. Yet unlike the enlightenment thinkers who followed him, he didnt believe the concepts of freedom and equality could be defended on purely secular grounds; they must be anchored in the Hebrew and Christian scriptures. Lockean equality is not fit to be taught as a secular doctrine, writes political theorist Jeremy Waldron. It is a conception of equality that makes no sense except in the light of a particular account of the relation between man and God.

Political philosopher Leo Strauss persuaded generations of scholars that Locke was a hedonist, that he did not take mans religious aspirations and obligations seriously. The opposite was the case: Locke was as much a religious reformer as he was a political revolutionary. In the Christian humanist tradition of Erasmus, a man he greatly admired, Locke argued that a return to the teachings of Jesusin politics and cultureheld the key to a more just and humane society. Hence, one of his rules for a philosophical society he founded in 1688 while in exile in the Netherlands: Proposing to ourselves and others the example of our Lord and Savior Jesus Christ, as the great pattern for our imitation.

This was the moral core of Lockes A Letter Concerning Toleration (1689), arguably the most important defense of religious freedom ever written and the conceptual basis for the modern secular state. Neither Jesus nor his disciples ever coerced anyone into the kingdom of heaven, Locke argued. Mutual charity, expressed in the golden rule, was their answer to religious diversity. But that the church of Christ should persecute others, and force others by fire and sword to embrace her faith and doctrine, I could never yet find in any of the books of the New Testament.

Locke drew conclusions from his case for religious liberty considered utterly radical at the time. First, the church must be a free and voluntary society, based on the conscience and consent of each individual. Second, the state must protect equally the rights of every person to pursue his religious obligations. The sum of all we drive at, he wrote, is that every man enjoy the same rights that are granted to others. Here are the defining doctrines of liberal democracy: government by consent of the governed, equal justice under the law, and the separation of church and state.

These are the political principles that have helped the West to defeat two of its most intractable problemspolitical tyranny and religious authoritarianism. It is precisely these ideas that are under assault in much of the rest of the world. Nevertheless, while many on the political left ignore Lockes influence, a growing number of conservatives have rejected it as a dead end toward radical individualism and social breakdown. Yoram Hazony, the author of The Virtue of Nationalism, argues that there is nothing in the liberal system that requires you, or even encourages you, to also adopt a commitment to God, the Bible, family, or nation.

Nonsense. These voices would cut us off from a vital source of moral and political insight, gained from bitter experience. Like no one before him, John Locke combined liberal political theory with the ethics of the Sermon on the Mount. Ultimately, he helped lay the foundation for a society with greater freedom, justice, and diversity than anything Christendom had produced in over a thousand years. It is an inheritance that cannot be guarded too carefully.

Joseph Loconte, PhD, is an associate professor of history at the Kings College in New York City and the author of God, Locke, and Liberalism: The Struggle for Religious Freedom in the West. He is working on a documentary film series about the impact of war on the literary careers of J. R. R. Tolkien and C. S. Lewis. A trailer for the film can be found at hobbitwardrobe.com.

Image: Flickr /U.S. Department of Defense

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The Future of Freedom in the Era of Dictatorial Rule - The National Interest Online

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Education solution: Give parents freedom of choice – Must Read Alaska

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ALASKA SCHOOLS ARE PRODUCING A FAILED SOCIAL ORDER

By MICHAEL TAVOLIERO

Our public education system no longer promotes the goal of teaching our children how to think independently, and how to live free, fulfilling, and meaningful lives.

Instead, we now see the products of carefully crafted and controlled manipulation of education to graduate young Socialists who are entitled, unskilled, and politically far-left leaning.

This whole process is controlled by the Democratic Party, the mainstream media, and their willing confederates in the public employees unions.

Republicans and conservatives alike share the blame. We have been absent from the education dialogue. We have, at best, issued lukewarm and flaccid rebuttals in protest, and of course, have been ignored.The public employees unions have driven the narrative, tilting the political arena more to the left than ever before. They have almost unlimited financial resources, and the political process has quietly been manipulated to help, through independent expenditure groups, mail-in ballots, and (possibly soon) rank choice voting.

There is no excuse for Republican/Conservatives to remain passive. After all, this really is about not only our more and more endangered constitutional rights, but also the future of our children and their children.

The majority of cities in the United States see their school boards and administrations controlled by far-left Democrats and their allies, and have for over half a century. The end result is that every major city is now completely controlled by the Democrat party, particularly unions.

States like California, New York, Illinois, Michigan, Washington, Oregon, Virginia (the state whose constitution was written by George Mason and James Madison among others) and more are now totally controlled by Democrats who control the major population centers and therefore the entire states.

Alaska has become no different. Anchorage has become a state within a state. As evidenced by its mayor and assembly as well as many of its State Legislative representatives (regardless ofD or Rdesignations), our once bountiful natural resources, with their development potential, are being converted and driven into a swamp of red tape, bureaucracy and entitlements. Our education system is promoting every leftist policy as good to our children, and every conservative policy as evil, racist, and selfish.

Everything that is wrong with inner city schools that policy can fix, Democrats are responsible for. Democrats and their allies run the public school system for the benefit of adults at the expense of children. Put in the language of political war:Democrats have their boot heels on the necks of poor, black, and Hispanic children. But Republicans are too polite to mention it. David Horowitz. How to Beat the Democrats and Other Subversive Ideas

Whose fault is this? We need to look at ourselves and see the results of our lack of attention and action. These policies are allowed to take over because of poor Republican/conservative voter turnout and poorer Republican/conservative public involvement.

Our lack of involvement has allowed the growth and takeover by the public employees unions, creatingan unfair legal standard for the Democrat hatchet machine to proliferate. With seemingly unlimited funds from union dues (we have yet to see the measurable effects of Janus v AFMCME in Alaska), these unions are virtually a political party with no legal political restraints, unlike the current political parties subject to the FEC and state public offices regulators.

Sadly, Democrat-controlled schools are teaching students very little. Students who are a product of this system are moving into their future not with productive and saleable life skills, but with a quiver full ofidentity politicarrows. Our education system should promote a meaningful and independent lifestyle, but instead, it leads to narcissism, sloth, and entitlement with few exceptions.

Alaska is producing a failing social order and it will cost our progeny dearly.

Where is the outrage on the part of Republicans/conservatives?Our urbanity and our go along, get alongattitude are our demise and consequently our failure, not just to ourselves but to Alaskas future.

What is more incredible to this edifice of failure is the fact that Republicans/conservatives actually do have an education plan in place. It is not based on the failed social principles we have witnessed year in and year out. No, the Republican/conservative plan is simple and immediately outcome oriented.

Alaskas school reform is economic choice. By putting the education dollar directly into the hands of parents, schools would be forced to serve their communities and constituents. Giving parents control of their childrens education would force schools and unions to stop exploiting our tax dollars to serve their own interests (instead of the students). Our tax dollars must be redirected to the parents and follow the children, rather than the special interests of the Democrat/media/public union syndicate.

The goal is to serve our children with a profoundly reformed education and provide them with the education that will give them the best chance for a successful, fulfilling and responsible life. The Left will not listen to these ideas because they will lose the power and the control they crave and must have to stay in power.

This idea was developed in 2013 through the efforts of Senator now Governor Michael Dunleavy.

During the 28thAlaska State Legislature, our state saw for the first time an opportunity to vote up or down on the question of state aid for education reaching the true beneficiaries of education, our children.

SJR 9 proposed amendments to the Constitution of the State of Alaska relating to state aid for education which provided the wording as captioned below, if passed by the State Legislature, would have given the voters the opportunity to amend the state constitution.

It was falsely entitled a voucher program attempt and maligned extensively in the public and the halls of our state capital.This was a typical lefistsky is fallingcanard, calling it a voucher program, instead of what it really was freedom: Freedom for parents and children to choose. Freedom to use their tax money in a way that would be meaningful to them, not the few, who created a hornets nest response to their potential loss of control over public policy and public money.

It was introduced on Feb. 13, 2013 by then-Sen. Dunleavy, and Senators Fred Dyson, Pete Kelly, John Coghill, Cathy Giessel, Lesil McGuire, Charlie Huggins, and Anna Fairclough.

SJR9 had 11 of the 14 votes required, but the education industry is the most powerful lobbying force in Alaska politics. Ironically, Senators Bert Stedman, Gary Stevens and Click Bishop, all Republicans, were the 3 senators who kept SJR9 from coming out of the Rules committee and being voted upon on the floor, in spite of this being part of the Alaska Republican Party platform.

Isnt time to bring this back to the education discussion? Before you say yes, let me finish with a suggestion and a solution.

Suggestion:Redirect all education funding to follow the child. This can be done by our political will through amending the Alaska Constitution. Give the people of Alaska the opportunity to guide the direction of education policy directly and personally.

Solution:Reintroduce and pass the language of SJR9. Amend Article VII, Sec 1 as follows:

Article VII, sec. 1, Constitution of the State of Alaska, to read:Section 1. Public Education.The legislature shall by general law establish and maintain a system of public schools open to all children of the State, and may provide for other public educational institutions. Schools and institutions so established shall be free from sectarian control.

With this deletion [NO MONEY SHALL BE PAID FROM PUBLIC FUNDS FOR THE DIRECT BENEFIT OF ANY RELIGIOUS OR OTHER PRIVATE EDUCATIONAL INSTITUTION.]

Amend Article IX, Sec 6 as follows:

Article IX, sec. 6, Constitution of the State of Alaska, is amended to read:Section 6. Public Purpose.No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except or a public purpose (add as follows); however, nothing in this section shall prevent payment from public funds for the direct educational benefit of students as provided by law.

Michael Tavoliero is a realtor at Core Real Estate Group in Eagle River, is active in the Alaska Republican Party and chairs Eaglexit.

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Vox Populi: This country is great because we support freedom of religion and freedom from religion – The Augusta Chronicle

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Adam Van Brimmer @avanbrimmer

TuesdayJan7,2020at8:43AM

Vox Populi is the voice of the people. Contact savannahvox@gmail.com or 912-525-0869.

If someone repeats a lie often enough, pretty soon the sheep following them believe it.

I'm so glad for my remote control. I can zap the Morgan and Morgan and Tom Steyer commercials.

On the Savannah and Hilton Head airports question, people arriving to Hilton Head from out of the country have to go through customs. The Hilton Head Airport doesn't have customs but Savannah-Hilton Head International does.

We lost journalist and author Dan Jenkins in 2019. It was the worst year for intelligent people since Elmore Leonard died.

This country is great because we support freedom of religion and freedom from religion. I won't let any religious belief get shoved down my throat. I love my country.

The Dave Granlund editorial cartoon published on New Years Eve about drunken driving gets the point across well.

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Vox Populi: This country is great because we support freedom of religion and freedom from religion - The Augusta Chronicle

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Freedom Center’s Interactive ‘Motel X’ Exhibition Aims to Shed Light on Human Trafficking – Cincinnati CityBeat

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Courtesy of the National Underground Railroad Freedom CenterAs guests walk throughMotel X at Freedom Center, they'll encounter the story of a teenage girl forced into sex slavery by human traffickers. Opening Jan. 11, the interactive installation was designed by Cincinnati-based filmmaker and artist Christine Marque.

The seed of the idea can be traced back to when Marque was 14 years old. As she explains in a Kickstarter campaign she started last November,she encountered the term "human trafficking" for the first timewhile writing a paper for school. As she investigated further, she found that being a 14-year-old girl in Ohio made her the most at-risk to be trafficked.

Years later, that initial seed is coming to fruition via Motel X, a multimedia project that aims to bring larger awareness to human trafficking. According to the National Human Trafficking Hotline, Ohio ranks fourth in the nation for most cases reported, with over 400 in 2018. Recognizing these statistics including the fact that cases in the United States have increased steadily since 2012 Motel X, per a press release, "hopes to evoke an empathetic link to practical knowledge to fight back and also to give survivors a platform to share their stories."

In the exhibit, as attendees open the motel room and enter the room they'll find clues scattered throughout that reveal warning signs, statistics and actions that can be taken to help fight human trafficking. Guests then enter the bathroom, where they're introduced to an immigrant worker unintentionally caught up in the crossfires of trafficking.

According to the release, "clues include audio tracks, dressers with items of clothing that reveal information when moved and a bedside Bible that, when opened, reveals stark facts about human trafficking." Upon leaving the bathroom, visitors are then led into a gallery featuring artwork by local survivors.

According the Kickstarter, the project's total budget is $32,000. (They had already raised $22,000 at the time of the Kickstarter and raised another $5,314 through the campaign.) According to a video posted to the campaign's page, The Carol Ann and Ralph V. Haile, Jr. U.S. Bank Foundation also provided a grant.

"The University of Cincinnati did a study and found that between 2014 and 2016 over1,000 victims were identified here in Ohio," Marque says in the video. "Human trafficking happens here and we need to know about it."

On display through April 5. On Jan. 11, Marque will give a gallery talk at 1 p.m. Admission is $5 with general admission; free for members.For more info, visit freedomcenter.org/motelx.

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Freedom Center's Interactive 'Motel X' Exhibition Aims to Shed Light on Human Trafficking - Cincinnati CityBeat

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