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
1. We protect our mental health
This has to be the immediate priority. The traumatic shock of this result is already being compared to the 9/11 attacks, and we need to take care of ourselves and each other.
For starters, try to avoid freaking out about things that haven’t happened yet. As someone with anxiety, I understand the impetus to catastrophize and panic, but that kind of thing only takes a toll on you, and does nothing to solve any problem.
Yes, there is abundant reason to believe Donald Trump will be a catastrophically terrible President. And his mere election reveals terrible things about the United States and Republican voters. You can mourn those things–but try to avoid panicking about the things you expect to happen, because you don’t know the future.
If you feel lost or hopeless, talk to someone. A friend, a family member, even a suicide hotline. Do what you need to care for yourself–if you need to take a sick day, do it. If you need to be around people, do it. But try to get outside. Go for a walk. Being isolated in your stress and anxiety will only cause more harm.
2. We face reality
This election taught us a terrible lesson about the United States: We are not the country many Americans believed we were. Going into the election, I thought Donald Trump would show us all that racism, xenophobia, and misogyny remained serious problems in the US; I didn’t expect to learn that they were strong enough to win.
What this means is that we, as progressives or liberals or Democrats or Social Justice Warriors or whatever we call ourselves, must reevaluate our strategies. We should resist blaming isolated causes, and face the harsh reality of the America we live within.
And yes, what I’m saying is we may need to find strategies for appealing to fragile white voters who are far too concerned with race. Condemning the majority of voters for refusing to come along with us might feel righteous and good, but if the end result is a White Nationalist party controlling all branches of government, we end up harming the very people we are trying to protect.
3. We prepare ourselves to be vigilant
This is not the first time in history that men with evil intentions have assumed power; it’s not even the first time in recent history. The administration of George W. Bush took office with a plan to invade and occupy all of the Middle East; they got as far as Iraq before the nation stood up against them.
This time it may be even harder, because the GOP majority looks to be so definitive. But again, we cannot predict the future. If we stay vigilant, and act early to resist the worst efforts of our new government, we can likely prevent at least some of the grevious damage they wish to do to our country.
We must, first and foremost, fight for and alongside the most vulnerable Americans in the wake of Trump’s bigoted campaign: Muslim Americans, Black Americans and other people of color, women, members of the LGBTQ community, Jewish Americans, immigrants, people with disabilities, and anyone else Trump’s followers (not to mention Trump himself, and his administration) wil now feel futher empowered to persecute. Already this morning the Ku Klux Klan staged a celebratory march in South Carolina; it’s up to us to send the message that, in spite of what this election would suggest, racism and hatred are not American values.
4. We start organizing for 2018
I know, it feels hopeless right now. Our Congressional districts are gerrymandered to all but ensure a GOP majority, and the Republican Party now knows that trading their racist dogwhistle for a big damn trumpet can be a winning strategy with white voters. But it wasn’t that long ago when things looked equally hopeless for the GOP. They got where they are today by persistent, strategic effort, and we can do the same.
It begins by understanding how we lost in 2016–again, facing reality no matter how much we may dislike it–and building our strategy from there. We have to address the needs of all voters, and motivate Democratic supporters to get out ot the polls. We have to weed out disenfranchisement and voter suppression. And we have to find the right candidates to appeal to the largest number of voters.
None of this will be easy, and a win is not guaranteed. But all you have to do is look at the current GOP to recognize that persistence pays off.
5. We resolve to resist obstructionism
I refuse to play the game the GOP has played for the last 8 years. As much as Donald Trump offends and terrifies me, I will not support an effort to block his initiatives simply out of spite or to score political points. As much as I loathe saying it, we need to rally behind the new President and help him make the right decisions for America.
One thing I will say for Donald Trump: We legitimately don’t know what he will do as President. Yes, candidate Trump said a lot of horrible, deplorable things, and he certainly could follow through on them. But Trump also has a long history of lying and betraying those who work with him, and his past positions (before he needed the support of GOP voters) were actually relatively progressive. I realize I sound like a ridiculous pollyana, but it is possible he could be an okay President–or at least he could advance some positive initiatives.
One way or another, the Democrats simply cannot become the new Party of No. It’s a surefire way to further alienate voters, it shows contempt for our whole political system, and I refuse to be a part of it. We have to be better.
6. We work to restore civility
On that same note, we just cannot have another election like this one. Our political discourse has steadily decayed with each election, to the point where Pew research says we are currently even more divided than during the Civil War. As Lincoln said, a house divided against itself simply cannot stand. We need to build bridges, or things will only get worse.
We need to return to an understanding that we are capable of disagreement without hating one another. I refuse to defend racism or urge “empathy” for people who vote based on hatred, but I do believe we need to at least understand other perspectives, so we can begin to speak with one another. Part of the reason we are currently so divided is that many of us don’t even live in the same world; the facts as we understand them on any particular issue may be directly contradictory. That simply cannot continue.
What I’d ask is for every person to develop an instinct: That when you read some piece of news or opinion that affirms your beliefs, that gives you that endorphin rush of righteous validation, that you regard that feeling the way you would a heroin high; addictive and ultimately damaging. We need to work to learn more about people who disagree with us, not reinforce the walls of our echo chamber and live assured that we are the ones who are right.
Wouldn’t it be great if, instead of showing you the articles you are most likely to agree with, Facebook changed their algorithm to show you the ones you’re least likely to have seen? It wouldn’t be hard to transform social media into something that would broaden our perspectives, rather than reinforcing our divisions.
I certainly don’t think that will happen. But each of us has the power to find those pieces ourselves. Instead of dismissing or unfollowing your conservative relatives, try reading those articles they share from Breitbart and Drudge. Yes, you’ll be horrified, but at least you’ll start to understand the paradigms in which they operate. Maybe then we can try to speak to one another as humans.
Perhaps the very worst thing about the repeal of the Houston Equal Rights Ordinance is that voters feared imaginary sexual assault so much that they voted in favor of actual sexual assault. There’s basically no documented history of straight men pretending to be transgender so they can access womens’ bathrooms. There is, however, a long and savage history of sexual abuse of transgender people just for being transgender–and for using the restroom to which their chromosomal gender would assign them.
There are people I respect who believe this vote really was about restrooms, and a visceral response to a perceived loss of privacy. Clearly I am not one of those people.
Three days ago, Indiana governor Mike Pence admitted that he “didn’t anticipate the hostility” that would result from passing the state’s new anti-gay “Religious Freedom” law. Speaking to the press on Sunday and Monday, he emphatically denied that the new law was about anti-gay discrimination. All this, despite abundant warnings from legal experts about the nature of the law, warnings and examples from gay rights groups about the potential backlash, and the fact that three professional homophobes stood behind the governor when he signed the bill.
How could this be?
There are those who assume Pence is being obtuse, that he’s adopting ignorance as a defense against the “unforeseen” backlash, but there is another possibility: The governor of Indiana might honestly have been this out of touch with reality–as out of touch as Mitt Romney before the 2012 election, when he ordered celebratory fireworks and neglected to write a concession speech.
Cognitive dissonance is a fascinating thing, and April 1 is the perfect day to discuss it. As companies across the Internet post their best April Fools joke–from Southwest’s crazy new bag fee system to CERN’s announcement that the Force really is with you–they rely on cognitive dissonance to help you get the joke. When the human mind is confronted with new information that conflicts with what previous experience would lead it to expect, one way to reconcile that conflict is to recognize humor.
There are other responses to cognitive dissonance, however. One of the most fascinating is what researchers Brendan Nyhan and Jason Reifler termed the backfire effect: the tendency of a person to reject new information when it contradicts that person’s belief or understanding, and double-down on that commitment. Continue Reading
In October, the Pennsylvania legislature passed the “Revictimization Relief Act,” which allows crime victims to police the actions of perpetrators for life with almost no limits. The inspiration was a recorded commencement speech by Mumia Abu-Jamal played at a Vermont college earlier that month; Pennsylvania legislators said the speech re-victimized the widow and family of Daniel Faulkner, the Philly cop Abu-Jamal was convicted of killing.
Faulkner’s widow was not forced to hear the speech. Her trauma and mental anguish came only from the knowledge that Abu-Jamal would deliver it. “How could they allow him to speak when Danny no longer has a voice,” she asked in an official statement. “It is my opinion that all murderers should forfeit their right to free speech when they take the life of an innocent person.”
A majority of Pennsylvania legislators agreed. They gave Maureen Faulkner, and other victims, the legal right to stop convicted people like Abu-Jamal from doing almost anything. The law, as written and passed, allows victims to prevent any “conduct which perpetuates the continuing effect of the crime on the victim,” with such conduct defined as that which “causes a temporary or permanent state of mental anguish.”
To many, the idea that one person’s subjective emotional experience trumps another’s constitutional rights is an affront, and the ACLU has already sued to strike down the Pennsylvania law. But the elevation of emotion is emerging as a disturbing theme of 21st century law. [pullquote position=”right”]As more Americans seek to protect people’s feelings, they sometimes find themselves in conflict with the foundation principles of justice.[/pullquote]
This year the Supreme Court will rule on Elonis v. United States, a complicated case in which a Pennsylvania man, Anthony Elonis, was convicted after posting graphic and horrifying Facebook statuses obviously directed as his ex-wife. Elonis’s defense claims he was writing rap lyrics, expressing his darker urges in the style of Eminem, and that the First Amendment protects him. Prosecutors say his messages constitute a true threat, and are not constitutionally protected. The case reached the high court partly because of a question over jury instructions: While the First Amendment and prior case law rely on the speaker’s intent to threaten, jurors who convicted Elonis were told to consider his speech a threat “if a reasonable person would have felt threatened.” [Emphasis added]
In other words, the difference between free speech and a federal crime hinges not on what was written or how, but rather on the emotional response of the person doing the reading. Continue Reading
Update, June 1 2015: This article was written in February, when Caitlyn Jenner still publicly identified as Bruce, and employs the name and pronouns that she chose at the time. While I’m at it, congratulations to Caitlyn for coming out and living a life that is true to herself.
I have a relative, a nasty closed-minded kind of guy–homophobic, misogynistic, and just generally lousy. A couple of years ago, he saw fit to apologize to me for any gay jokes that might have offended me. I suspect this was prompted by other relatives, and not by any inner guilt or empathy–by my best estimation, this individual isn’t capable of feeling such things.
“I’m sorry,” he said. “I hope you know I was just kidding, and I didn’t mean to hurt your feelings.”
I accepted the apology, surprised as I was to receive it, but I took the opportunity to deliver a little lecture. I explained that, as a man in my late 20’s (at the time) I was secure in my queer identity–certainly secure enough that the jokes and opinions of small-minded bigots didn’t hurt my feelings. But, I said, it wasn’t me he should be concerned about. Continue Reading
This is a feature I started in my time working for the ACLU, that seems worth continuing here. It’s a roundup of news stories about First Amendment rights, not only from the United States but other parts of the world where such rights may not be guaranteed. As with any roundup of news stories, please consider the integrity of the linked source–I try not to link articles that feel bogus, but sometimes stories slip through.
- In a new book, retired Supreme Court Justice Paul Stevens suggests six new amendments to the U.S. Constitution, including a revision to the First Amendment that would place “reasonable limits” on political campaign contributions. [NPR]
- The NCAA believes the First Amendment gives them the right to profit from using the images of the players it doesn’t pay and doesn’t educate in video games, and they want the Supreme Court to agree. [Bloomberg]
- Several Christian groups that perform same-sex weddings, including the United Church of Christ, have sued North Carolina because the state’s marriage equality ban, enacted through both state law and the state constitution, violate their religious freedom under the First Amendment. [Wall Street Journal]
- Defense attorneys for alleged gang leader Ronald Herron argue that his rap recordings, in which prosecutors claim he journaled his crimes, are in fact protected free speech, analogous to Johnny Cash’s “Folsom Prison Blues,” and inadmissible at trial. [AP]