Fun fact: Donald Trump isn’t even three weeks into his Presidency! If you’re like me, you are already tired of winning.
Like the previous two weeks of Trump, this one has been overwhelming, especially if you’re concerned about the First Amendment. We’re going to focus on the big cases here, and maybe come back in a future week to some things that slip through the cracks.
If there was a theme this week in First Amendent News, it was “Conservatives Misintepreting the First Amendment.” So grab your handy study guide, and let’s dive in.
Does the Alt-Right have Alt-Rights?
A massive protest by students at UC Berkeley led staff to cancel a scheduled speech by Twitterless alt-right troll Milo Something-or-Other. The move ignited debates across the Internet and inspired our President, who has not yet made any statement about the alt-right terrorist who murdered innocent Canadian Muslims during prayer service, to threaten the university’s federal funding.
Despite outcry, of course, Milo’s First Amendment rights were in no way impinged. The First Amendment does not protect against opposing speech from fellow citizens, nor does it guarantee a podium and a microphone. It is a protection against punishment or censorship by the government — and it is likely, had Milo the courage to step out onto the sidewalk and engage his speech rights the way any other American may, that the government (in the form of police) would have protected him.
Instead Milo ran away, because alt-right trolls are cowardly, and claiming persecution fits his narrative and his brand better than, you know, using his freedom of speech. The protesters, meanwhile, fully engaged their First Amendment rights to assembly and expression, and responded to offensive speech in exactly the right way — by raising their own voices.
The First Amendment does not mean the police force thousands of protesters to keep silent so you can give your Nazi PowerPoint. That said, I’ll step off my soap box.
Religion, Refugees, and Resistance
Late last week President Trump kept his promise to ban Muslims from the United States with just about the sloppiest roll-out of immigration policy in US history. You may have heard of this one. In response, thousands of Americans turned up at airports across the country to protest. Notably, Presidential sycophant/Svengali Steve Bannon blamed these protests, which happened in cities like Indianapolis, Louisville, Omaha, and Nashville on the metropolitan coastal elites. One wonders where he thinks the coast is.
On Thursday, more than one thousand small business owners in New York City, most of Yemeni nationality, closed their shops for eight hours to join a protest at a federal courthouse in Brooklyn. Messages of solidarity and donations came from neighbors and supporters in New York City and worldwide.
There is debate as to whether Trump’s Muslim Ban (which, notably, extends only to nations in which Trump does not have personal business interests) violates the Constitution’s prohibition on religious discrimination, but many experts say it runs afoul of Constitution law in multiple ways. Immigration law is complex, and the President does have significant leeway, but several federal judges have issued orders suspending various elements of the ban on several rationale. Further court scrutiny is still to come, and the ultimate fate of the ban remains to be seen.
Trump Threatens LGBTQ+ Rights… or Does He?
The queer community watched Monday as reports emerged that Trump would reverse President Obama’s executive order protecting LGBT employees When word spread Tuesday that Trump would keep Obama’s policy in place, some in the community expressed cautious relief. Then on Thursday, the press obtained a leaked draft of an executive order protecting “Religious Freedom” that would legalize discrimination based on sexual orientation and gender identity.
Just another week with Trump in the White House.
Trump’s order would also limit women’s access to contraception under the ACA, and would present particular harm to trans Americans. The administration has stated he has “no immediate plans” to sign the order, though it’s up in the air what exactly that means — that he won’t sign it this week? Today? That he doesn’t have a pen in his hand at this moment? Who can say?!
This SCOTUS Nomination Gor-Sucks
Speaking of “religious freedom,” the likely next member of the Supreme Court (occupying the seat left vacant by the illegal and immoral obstruction of former-almost-justice Merrick Garland) has a lot of scary ideas. We don’t yet know his views on abortion since, like many lawyers hoping for a Supreme Court appointment, he has avoided the topic almost entirely.
We know that Gorsuch was unhappy with the Hobby Lobby decision, which allowed employers to decide whether female employees can take birth control, because he didn’t think it gave the employers enough authority. And we know that he has strong opinions that Americans should not be permitted the autonomy over their bodies to decide when they want to die. Because, you know, God and stuff.
On LGBTQ+ rights, Gorsuch has expressed an opinion that it should be left to so-called states rights, and state legislators should have say over what queer people can do with their own bodies.
Oh, and he really hates liberals. In high school he thought it was a hilarious joke to compare liberals with fascists, and as recently as 2005 he published essays about how awful liberals are.
So… Not great.
The Collection Plate PAC
Sigh. Staying on the theme of so-called “religious freedom,” President Trump vowed to “destroy” the law that prohibits churches, as non-profit organizations, from engaging in unlimited lobbying and political advocacy.
It’s hard to get too upset about losing a law that really hasn’t been enforced in recent years. But it’s worth pointing out that, once again, there is no First Amendment violation in the law.
The law does not prohibit churches from political speech. In fact it solely addresses their non-profit tax status. Under the US Tax Code, specific types of activity are granted non-taxable status. Religious practice is one of those types of activity; political advocacy is not.
Nonprofits are permitted only a limited amount of political advocacy as part of their mission. Non-profit organizations that do a lot of lobbying therefore establish multiple corporate entities; the ACLU, where I was on staff as a fundraiser, existed as both a 501(c)(3) charity, which did little to no lobbying work and to which contributions were tax deductible, and a 501(c)(4) lobbying organization, which funds the political advocacy work and to which donations (including membership dues) are NOT tax deductible.
Churches nationwide, however, have been getting away with spending massive amounts of money on lobbying and political advocacy all under the banner of their 501(c)(3) tax status. Many people (myself included) have insisted that they should be subject to the same rules as other charities, but there has been little to no effort to enforce the tax code. Now Donald Trump wants to “destroy” the law that has not been enforced.
If churches are spending a lot of money on political advocacy, they should be paying taxes on that particular money. That’s the only question here, there is no “prohibition” on any type of speech or religious expression.
Congratulations, Internet! We made it to another Friday, a whole week into the Trump Presidency. Only… 207 more weeks to go. Hoo boy.
It did take almost an entire week for Steve
Ganondorf Bannon to declare the press officially “the opposition party.” In the meantime, Trump and his surrogates have mainly stuck to veiled threats toward the “media.” American reporters may all be headed to re-Ned-ucation soon, but so far it’s all talk. So let’s turn the eyes of liberty elsewhere.
[A brief aside: I have a Patreon page, and I would love your support! I’ve been blogging for more than ten years here, and have never yet turned a profit. Patreon makes it very easy to commit to as little as one dollar a month, so if you like what I’m putting into the world, please consider becoming a patron!]
Women be Marchin’
The Women’s March on Washington, and worldwide “sister marches” on Saturday, January 21, were very likely the largest protest action in the history of… well, the world. Estimates put the number of marchers in the United States between 3.3 and 5.4 million. That’s roughly one to two percent of the nation. and worldwide estimates range from around 250 to 350 thousand. Good job, everybody!
I marched in the New York City Women’s March. You can see some of my photos here, and read some suggested next steps for marchers who may be wondering where to put that energy now.
Side note: I only today learned that there was a Women’s March in the French Revolution, in which the ladies marched on Versailled and evicted the King. I don’t know if that reference was intentional, but I sure hope so.
PA Supreme Court Hears Rapper Charged with Threatening Police
The Pennsylvania Supreme Court is considering the case of Jamal Knox, who raps under the name Mayhem Mal. Knox, a 22-year old resident of Pittsburgh’s East Liberty neighborhood, was arrested and charged after, well…
“The case began with an April 2012 traffic stop in the city’s East Liberty section, when Knox, now 22, drove away after telling an officer he did not have a valid driver’s license. Following a chase in which he hit a parked car and a fence, police found 15 bags of heroin and $1,500 on Knox and a stolen, loaded gun in the vehicle.”
Yikes. But none of that is what this case is about! Seven months after that, police found a rap video on YouTube in which they say Knox threatened them. Knox’s lawyers say the video is a protest, and protected free speech under the First Amendment. Police counter that the lyrics, which include references to “cop killer” bullets and Richard Poplawski (who killed three Pittsburgh officers in 2009) constitutes a true threat.
For more on Knox’s case, Lily Hirsch has a terrific write-up over at The Establishment.
Third Time’s a Charm for Colorado Religious Discrimination Bill
The Colorado House has, for the third time in three years, defeated attempts to pass a “Religious Freedom Bill” that would legalize discrimination.
We’re going to see a lot of these in 2017, so get ready. “Religious Freedom,” in this context of course, means turning gay people away from your business. Because as Jesus said, it is easier for a fat man to fit through the eye of a needle than to bake a cake for two dudes getting married. Or something like that.
Meanwhile, back in Pennsylvania, a restaurateur in Annville allegedly kicked out a black student after calling him a racial slur. The student, Rickey Lee Bugg Jr, says the owner of Just Wing It told him “Trump’s President… so I can say what I want.”
In point of fact, that is not [yet] the case. But who knows? Once they get a taste of legalizing discrimination, the GOP may try to push us all the way back to the 1950s.
Quick note here for the unaware. The First Amendment does not apply to speech or expression in pursuit of profit. That’s considered commerce and therefore, under the Constitution itself, may be regulated.
Federal Court Hears Suit on Concealing Actors’ Ages
Maybe it’s insensitive of me, but I’m going to call this the “Jenna Maroney” Law.
A federal court is hearing a challenge to a California law, passed last year, that prohibits commercial casting websites from listing actors’ ages. The law was promoted by Screen Actors Guild President Gabrielle Carteris, who was 29 when she landed the role of 17-year-old Andrea Zuckerman on Beverly Hills, 90210. Carteris was able to conceal her age, but believes that sites like IMDB today deny actors that opportunity.
Most experts warned California legislators at the time of passage that the law wouldn’t withstand scrutiny. The First Amendment protects the right to list virtually any information, including the age of an actor. If you’re an actor going out for a part that is *ahem* a bit young for you, better act fast.
Happy Friday! It’s January 20, spring is two months away, and I’ve been 38 for three whole days. There’s something else happening today, too, but damned if I can remember what it is. Still, some unnamed impulse has inspired me to bring back the old Friday First Amendment Roundup, which I haven’t written since I worked for the ACLU. That same feeling tells me I’ll try to keep at it for the next four years.
So… Let’s all dust off our vintage Louis Brandeis decoder rings and see what’s happening with the Constitutional Amendment that’s First in all our hearts.
The Slants, the Supreme Court, and the NFL
The Slants, an Oregon-based band whose members are all Asian-American, appeared before the Supreme Court this week. Why? The US Trademark office says a 70-year old law forbids them from registering racially offensive names. The Slants (whose name comes partly from a derogatory term for Asian-Americans) say the law violates their freedom of speech.
Watching with great interest is the NFL’s Washington-based football team, whose name will not appear here. In 2014, the Trademark Office stripped said team of their trademark rights, costing them major profits. They are definitely rooting for the Slants; no word yet on any SCOTUS-related face painting.
Curb Your Rights
As the nation prepares for a protest that may be one of the largest in our history, five separate states have introduced legislation to crack down on peaceful protests. Oh, excuse me. That should read Republican legislators in five separate states.
Especially targeted are highway protests, popular with Black Lives Matter and Dakota Access protesters. Minnesota and Iowa seek to make such protests illegal, while in North Dakota lawmakers think motorists should be able to kill protesters with impunity. Provided they claim it was an accident, of course.
Washington state and Michigan are also looking at criminalizing protests. A number of these legislators, by the way, consider themselves members of the Tea Party Caucus. I seem to recall something there to do with protest… but let’s move on.
A Big, Beautiful Problem with the First Amendment. Just Huge.
It says here that some guy named… Donald Trump(?) is taking over as President. Trump has shown himself to be no friend to the First Amendment, and the Nation does a good job of breaking down the biggest issues, from his relationship with the press and his abuse of libel laws to his endorsement of laws against flag-burning.
The Nation doesn’t mention much about the religious freedom provisions of the First Amendment. This Atlantic article from late December covers the bases: Anti-Muslim discrimination, mosque surveillance, and attempts to legalize discrimination against LGBTQ+ people and religious minorities. It’s morning in America, people.
Did I say morning? Sorry, I meant mourning. Damn homophones.
Hey, trivia: A “homophone” is the reason Mike Pence currently lets all his calls to go voice mail. And speaking of the midwest…
Priority of Zion
The ACLU is currently fighting a new law in Ohio that forbids the state from contracting with any business that boycotts Israel. Similar laws have recently passed or been introduced in about half of US states, including New York. The ACLU warns that such legislation not only punishes legal political action, but risks punishing businesses that divest from Israel for apolitical reasons, like new tarriffs.
Writing in Slate last April, Columbia Law Professor Katherine Franke and attorney Michael Ratner pointed out the irony of Zionist crackdowns on boycotts, observing that the Jewish community had long used boycotts as effective political tools. The two also expressed concern that such anti-boycott initiatives could be deployed against the LGBTQ+ population, which has deployed high-profile boycotts against anti-equality legislation in states like Indiana and North Carolina.
Anti-equality legislation? Hey, that brings us back to Mike Pence! So why not…
The No-Pence Party
In what has to be my favorite political protest… I don’t know, ever? LGBTQ+ activists staged a massive queer dance party outside Mike Pence’s DC-area home, just days before Pence was sworn in as Vice President. Protesters in hot pants and various rainbow garments sang, gyrated, and called for “Daddy Pence” to come out and join in the festivities.
Which goes to show: When it comes to American political protest, eventually it always comes back to tea bags.
Top Photo: Wikimedia Commons
I haven’t done one of these in a while, but if Europe can land a robot on a comet then by God I can read my Google alerts and present my little Constitutional digest. As we end a week in which TIME magazine suggests banning the word “feminist” and a celebrated emerging sci-fi author is revealed as one of the Internet’s most nefarious trolls, it seems appropriate to take a look at what’s happening worldwide with the rights to speech, assembly, and expression:
- Writing at CNN, Rupert Abbott of Amnesty International raised an alarm about troubling restrictions on free speech he says are sweeping southeast Asia.
- Following the swift response to his racist and misogynist Twitter screed, comedian Artie Lange has found few defenders. Mary Elizabeth Williams at Salon and Katie McDonough at Slate wrote particularly strong takedowns of those who would defend Lange. Continue Reading