Devil’s Advocate

August 14, 2017 Comics Comments (0) 654

(Click panels to embiggen. Get the comic in a single image here. Click here for more comics.)

 

I am, as has been stated many, many times elsewhere, personally a hard-liner on the First Amendment. Nazis do, unfortunately, have the same right to speech and assembly as everyone else, and that is as it should be. It is, as the saying goes, the high price of freedom — because any effort to legally stifle hate speech will inevitably be exploited to harm the people it seeks to protect.

However, there is a time and a place to argue for free speech. If you are the ACLU, maybe that time is “always.” If, however, you are a decent human being seeking to engage with other human beings on the Internet, the time to argue for free speech may not be the immediate aftermath of a Nazi rally that killed three people. Sometimes it’s good to say “Yeah, Nazis are bad.”

You may not sound like the greatest intellectual in the room, but you will also avoid sounding like a complete asshole.

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First Amendment Friday: February 3, 2017

February 3, 2017 Featured, First Amendment Fridays Comments (0) 943

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.

What we do know is that the Religious Right is extremely excited about him, and we know that Donald Trump promised during his campaign that he would only appoint Justices who opposed abortion.

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.

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First Amendment Friday: January 20, 2017

January 19, 2017 Civil Rights, Featured, First Amendment Fridays, Gay and Lesbian Comments (1) 359

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

DAPL Protesters, photo by Flickr user Fibonacci Blue

Photo: Flickr user Fibonacci Blue.

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.

Yeah… Sorry.


Top Photo: Wikimedia Commons

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Nathan McLendon Explains It All Wrong

July 21, 2015 In The News Comments (0) 298

web1_Nathanl_McLendon_t300I’m slightly hesitant to publicly criticize an undergraduate for misunderstanding history and civil rights, but since Nathan McLendon (pictured at left, without what I assume is his customary fedora) is apparently a guest columnist at the Albany (Georgia) Herald, and therefore popped up among the Google alerts in my inbox, I’m going to make an exception.

First, I invite you to read the jumble of accreted right-wing talking points the Albany Herald, an esteemed publication with a 125-year history and a 29-word Wikipedia entry,* thinks qualifies as a guest column. Following the thetical headline “Political Correctness Threatens Free Speech,” McLendon asserts the following:

  • That activists seeking to remove the Confederate Flag from popular use are attacking free speech. Which is counter to reality, because those activists are employing free speech in advocating for the removal of a government-sanctioned symbol. It’s McLendon who opposes free speech by suggesting that those raising complaints are somehow committing an offense against public discourse.
  • That public outcry against unpopular opinions attacks free speech. This is a right-wing canard: “If I express my opinion, that’s free speech. If you express criticism of my opinion, that’s oppression.” McLendon backs it up with another deceptive canard, the “bakery owner fined for refusing to participate in a gay wedding.” In fact the fines in question resulted from the bakery owner encouraging harassment and violence against the gay couple in violation of court instructions.
  • That “it’s easier to call someone a racist than to think for yourself.” This follows a lengthy repetition of farcical Civil War history, which I’ll get to in a moment. In the minds of many right-wingers (especially racists), one of the worst things anyone can do is call someone a racist. I just find it so bizarre and slightly amusing that so many Americans frame their opposition to free speech as a defense thereof.

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First Amendment Friday: 05.02.2014

May 2, 2014 ACLU, Gay and Lesbian, Politics / Religion Comments (0) 270

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]

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First Amendment Friday: 04.25.14

April 25, 2014 In The News, Politics / Religion Comments (0) 240

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.

  • Eight rappers who sell CDs of their music in Times Square are suing the NYPD, saying the police violate their free speech and target them unfairly for persecution and arrests. [AllHipHop]
  • Dallin H. Oaks, a leader of the LDS Church, says he believes protections for religious freedom of speech are eroding. [AP]
  • A Pennsylvania student’s family is suing after administrators removed religious notes he inserted into Valentine’s Day cards. [The Express Times]

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First Amendment Friday: 4.16.2014

April 18, 2014 Politics / Religion Comments (0) 225

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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.

 

 

  • The U.S. Supreme Court will consider an Ohio case that could make it illegal to lie in a political campaign. At least two Justices, by the way, have previously indicated their belief that the First Amendment does not protect “factually untrue statements.”
  • A bipartisan group of Congressional Representatives has sent a letter criticizing the Air Force for unconstitutional violations of religious freedom and urging them to revise regulations.
  • The Hugh Hefner Foundation has announced the 2014 winners of their First Amendment Awards, including Glenn Greenwald, Mary Beth Tinker, and a lifetime achievement award for NYU Professor Norman Dorsen. The Foundation has presented their First Amendment Award since Playboy magazine’s 25th anniversary in 1979.
  • The Virginia Supreme Court will weigh in on whether business owners may sue Yelp reviewers for libel.
  • First Amendment Zones,” often-controversial restrictions on the time and place of public protest, met new criticism at the Nevada Cattle Ranch standoff. Their ensuing removal received praise from the ACLU.

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