Category: First Amendment

State government apparently sponsors religious trip

December 3, 2018 • 11:30 am

The Charleston, Illinois Parks and Recreation Department is giving local citizens the opportunity to visit, yes, Ken Ham’s Ark Park and Creation Museum. The links are below, and there’s a fee for the trip, but that doesn’t matter: it violates the state sponsorship of religion prohibited by the First Amendment. It’s like a city government sponsoring a trip to mass at the local Catholic church.

From their Facebook page:

And the full flyer giving the details:

Their status:
And their contact information, including Facebook messaging.
Call (217) 345-6897

. . . and the message I sent them via Facebook:

Hijabs and religious head coverings okay in Congress, secular hats not? Religion once again gets a pass

November 23, 2018 • 9:15 am

As you’ve surely heard, Ilhan Omar was elected to the House of Representatives this year. She’ll be representing a district in Minnesota, and is one of the first two Muslim-American women to be elected to Congress. She’s also the first hijabi elected to Congress (the other woman, Rashida Tlaib, isn’t a hijabi). Omar always wears a fancy, high-rise hijab:

And she’s vowed that she won’t take it off, even though there’s been a ban on head coverings in the House since 1837. Here’s a recent tweet from her:

Note that she invokes the First Amendment—presumably freedom of religion—to justify wearing her hijab.  And now, according to NBC News and many other sources, House Democrats are proposing a rule change that will allow headscarves and other forms of religious headgear in Congress, a rule specifically designed for Omar but that will also allow yarmulkes and other forms of religious head covering. Likely future Speaker Nancy Pelosi is also on board with it:

Democrats say they will add an exemption for religious headwear under their new package of rules changes for the next Congress, which begins in January, so that the protection of religious expression is explicit. The language will also cover someone wearing a head covering due to illness and loss of hair.

“Democrats know that our strength lies in our diversity, regardless of race, gender, sexual orientation or religion,” said House Minority Leader Nancy Pelosi, D-Calif., in a statement to NBC News. “After voters elected the most diverse Congress in history, clarifying the antiquated rule banning headwear will further show the remarkable progress we have made as a nation.”

“This change will finally codify that no restriction may be placed on a member’s ability to do the job they were elected to do simply because of their faith,” said incoming House Rules Committee Chairman Jim McGovern, D-Mass., who is working on the amendment with Omar and Pelosi. “The American people just elected the most diverse Congress in history and our rules should embody that.”

When I first heard about this, I wasn’t disturbed, as I thought they were simply deep-sixing a general rule against head coverings. While some members of Congress have been religious (Senator Joe Lieberman, an observant Jew, often wore a yarmulke outside Congress but not in the chambers), nobody has ever sought an exemption.  But that’s not the way it is: the kinds of head coverings that are allowed are specifically religious ones (as well as head coverings for head injuries or other medical issues—presumably bandages or wigs for those who have lost their hair via chemotherapy).

As I said, this doesn’t seem to be a hill one wants to die on, but not everybody feels that way. As a friend of mine wrote me:

I find that Congress would change the rules (or that Democrats are proposing such a thing) outrageous and dangerous.  More special rights for Muslims, of course….

Well, everybody gets Omar’s rights for religious headgear, so yarmulkes are okay too. One could argue, though, that Muslims feel especially entitled compared to other religionists, and will simply refuse to shed their religious practices when they conflict with secular custom—or rules in this place.

What made me rethink my indifference was this report, which notes:

The head-covering rule has vexed some lawmakers, notably Congresswoman Frederica Wilson, who is known for her colorful hats and has pushed to get the ban lifted.

Under the proposed changes, Wilson would still be barred from wearing hats on the House floor.

And that means that this rule is for specifically religious garb, not any other form of head covering (I wonder if a colander would qualify, since it’s headgear of the Church of the Flying Spaghetti Monster). Hats were worn in Congress before the rule was enacted, and I can see that some people, like Wilson, would want to wear them for decorative or non-religious reasons.

It’s clear, then, that this rule privileges those who wear religious headcoverings (or medically-mandated ones) and not secular headcoverings. And that seems a violation of the First Amendment—something that shouldn’t be happening in our nation’s legislative bodies.

Now the rule change is almost certainly a fait accompli, for Congress wouldn’t want to look Islamophobic, hijabs are now the equivalent of haloes for the Authoritarian Left, denoting some kind of admirable victimhood, and there is already a religious invocation that opens each session of Congress (Dan Barker and the Freedom from Religion Foundation are fighting it). And it worries me that Omar is threatening, in her tweet above, to fight for lifting other bans, which seems to me to invoke more privileging of religion—in her case Islam—over secular values. I add in passing that Omar has changed her position on BDS, now supporting it after her election (she wasn’t in favor of it before she was elected), and has emitted some pretty nasty tweets against Israel (see here), as well as calling it “an apartheid regime.” (Tlaib also supports BDS).

But never mind the Israel-hating. This new rule is part of religion’s general tendency to try to override secular laws in favor of religious laws or customs. Islam is only the most visible of these attempts, but we know how Christians are also asking for exemptions. I’m now on the fence against this new regulation, and so am taking a poll and soliciting readers’ views in the comments below. Please vote:

 

h/t: cesar

Tennessee schools required to display “In God We Trust” motto

August 3, 2018 • 1:00 pm

You may have heard that, back in March, the Tennessee legislature passed a bill (vote 81-8!) requiring the U.S. National Motto, which happens to be “In God We Trust”, to be displayed on the walls of all public schools. (The legislature is Republican, but not 91% Republican.)

As WATE in Knoxville reports, this blatantly unconstitutional incursion of religion into the public schools—which are regarded as organs of the U.S. government—was immediately signed by Governor Bill Haslam:

The measure requires schools to display the motto in a prominent location, either as a plaque, artwork, or in some other form.

Whether this motto represents an unconstitutional government endorsement of religion is a question that has invited legal challenges in other states with similar laws.

But the bill’s sponsor, Republican Rep. Susan Lynn, says the bill shouldn’t bother “faithless people” and “people of other faiths” because it’s the motto of the country.

“Our national motto and founding documents are the cornerstone of freedom and we should teach our children about these things,” Lynn said.

Haslam said he’ll look at the legislation when it hits his desk, but added that “at the end of the day, I’ve never been one that thought that having a motto somewhere changes a lot of people’s thoughts.”

Now it seems to me a clear violation of the First Amendment to have as a national motto for a secular country—a country that forbids the intermingling of religion and the state—a phrase saying its citizens trust in God. (That motto is on U.S. currency, too.) The motto is recent as well: it was suggested by Dwight Eisenhower and adopted by Congress in 1956.

According to Wikipedia, though, lower courts have ruled that the mooto isn’t unconstitutional:

The constitutionality of the modern national motto has been questioned with relationship to the separation of church and state outlined in the First Amendment. In 1970, in Aronow v. United States, the United States Court of Appeals for the Ninth Circuit ruled that the motto does not violate the First Amendment to the Constitution. The United States Supreme Court has not ruled on the issue.

Trying to find out why this happened, I came across a post by Andrew Seidel, a staff attorney for the Freedom From Religion Foundation (FFRF), called “The Christian hypocrisy of ‘In God We Trust’.” Andrew’s piece goes into the historical background, the court cases, and the legal reasoning used to prop up the motto. It’s a good short piece, and if you’re an American secularist you should read it. In short, the courts have decided that, through repetition, the motto has lost its religious meaning. But that’s absurd! For if it’s lost its religious meaning, it’s lost all meaning, as who do all Americans trust if it be not God? Further, it’s like saying that the Lord’s Prayer or the Ten Commandments have lost their religious meanings through repetition. Yet the courts still rule that the Ten Commandments can’t be displayed on public property.

A report from yesterday on the same site shows that Tennesseeans are by no means united in favor of the bill:

The first day of school is coming up quickly and the Distefanos are ready in some ways.

“Fifth grade is pretty hard, so I’m kind of looking forward but kind of not,” said Emma Distefano.

Her mom, Pebby Distefano, says she has mixed feelings hearing that “In God We Trust” will be somewhere at her daughter’s school.

“I believe in God. My daughter believes in God. However, there are also people who do not believe in God that attend the same school that my daughter does and I would not want their religions imposed on my beliefs, as well as I know my beliefs don’t need to be imposed on them,” she said.

WATE 6 On Your Side posted to Facebook on Wednesday asking parents to share their thoughts about ‘”In God We Trust” going up at Tennessee Schools. Benjamin and Sabrina Cooper posted, “We need God in our schools and everywhere else.”

Ruby Daniels commented, “Love it. Put God back in schools.”

Others shared on Facebook their concerns with the new law. Carly Fils posted, “Seriously? It’s ridiculous! Not all students are religious!”

Pati Sexton wrote, “Unconstitutional would be my thought. This is an illegal, government, endorsement of Christianity.”

“There are more religions than just Christianity,” posted Kelly Boring.

And, of course, there’s atheism.

This motto, which several states have approved for display in public schools, is ripe for a legal challenge. As Annie Laurie Gaylor, co-president of the FFRF says, “To be accurate it would have to read ‘In God Some of us Trust,’ and wouldn’t that be silly?”

I’ve heard that the FFRF is well aware of the Tennessee bill and similar bills in other states, and they’re looking into the possibility of a legal challenge. In the meantime, check those greenbacks in your wallet. They bear witness to our trust in God, though they should say this:

 

 

h/t: Andrew

The New Yorker tones down its advocacy of free speech

July 18, 2018 • 10:45 am

It was inevitable: the New Yorker, a liberal organ, has, like the liberal American Civil Liberties Union (ACLU), started waffling on free speech because it may be offensive and damaging to some groups. In other words, because the First Amendment conflicts with “social justice”, says the magazine, we must temper our advocacy of free speech. This is further evidence that the New Yorker has become an Authoritarian Leftist rag, and I’m not renewing my subscription when it lapses.

Click on the screenshot to see Andrew Marantz’s shameful and cowardly retreat from America’s freedom of speech.

The answer to the question posed in the subtitle is “Yes.”

In short, Marantz’s arguments are the same as those made by the ACLU in their secret memo described at the link above. Certain oppressed groups, he maintains, are damaged by free speech, either by creating psychological damage in their members after hearing criticisms of their group or its beliefs, or by directly increasing the degree of oppression of the group. In addition, the presence of speakers who promulgate this kind of damage (Marantz mentions Milo Yiannopoulos, Ann Coulter, David Horowitz, Heather MacDonald, Richard Spencer, and Charles Murray—a mixed bag if ever there was one) are “divisive”. (So was free speech advocating integration in the pre-Sixties South!) Further, when speaking on campus, speakers like thse cost colleges a lot of money for security.

Marantz argues that there are already legal restrictions on speech when it causes harm, like bans on sexual harassment in the workplace. Why, then, can’t we ban speech outside the workplace that also can cause harm?

Marantz makes his arguments largely through quotes from others, but it’s very clear that he agrees with them. Here are a few of those quotes. First, the new trend of saying we should temper the traditional interpretation of the First Amendment in light of social justice:

“No one is disputing how the courts have ruled on this,” john a. powell [JAC: yes, he’s pompously omitted the capital letters], a Berkeley law professor with joint appointments in the departments of African-American Studies and Ethnic Studies, told me. “What I’m saying is that courts are often wrong.” Powell is tall, with a relaxed sartorial style, and his manner of speaking is soft and serenely confident. Before he became an academic, he was the national legal director of the A.C.L.U. “I represented the Ku Klux Klan when I was in that job,” he said. “My family was not pleased with me, but I said, ‘Look, they have First Amendment rights, too.’ So it’s not that I don’t understand or care deeply about free speech. But what would it look like if we cared just as deeply about equality? What if we weighed the two as conflicting values, instead of this false formalism where the right to speech is recognized but the harm caused by that speech is not?”

and

Yiannopoulos and many of his defenders like to call themselves free-speech absolutists, but this is hyperbole. No one actually believes that all forms of expression are protected by the First Amendment. False advertising, child pornography, blackmail—all are speech, all are illegal. You’re not allowed to shout “Fire!” in a crowded theatre, make a “true threat,” or incite imminent violence. These are all exceptions to the First Amendment that the Supreme Court has made—made up, really—over time. The boundaries can and do shift. In 1940, a New Hampshire man was jailed for calling a city marshal “a damned Fascist.” The Supreme Court upheld the conviction, ruling that the words were not protected by the First Amendment, because they were “fighting words,” which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

. . . In the nineteen-seventies, when women entered the workplace in large numbers, some male bosses made salacious comments, or hung pornographic images on the walls. “These days, we’d say, ‘That’s a hostile workplace, that’s sexual harassment,’ ” powell said. “But those weren’t recognized legal concepts yet. So the courts’ response was ‘Sorry, nothing we can do. Pornographic posters are speech. If women don’t like it, they can put up their own posters.’ ” He drew an analogy to today’s trolls and white supremacists. “The knee-jerk response is ‘Nothing we can do, it’s speech.’ ‘Well, hold on, what about the harm they’re causing?’ ‘What harm? It’s just words.’ That might sound intuitive to us now. But, if you know the history, you can imagine how our intuitions might look foolish, even immoral, a generation later.”

About the supposed harm caused by free speech:

I asked john powell what he thought about the rhetorical tactic of conflating speech with bodily harm. “Consider the classic liberal justification for free speech,” he said. “ ‘Your right to throw punches ends at the tip of my nose.’ This is taken to mean that speech can never cause any kind of injury. But we have learned a lot about the brain that John Stuart Mill didn’t know. So these students are asking, ‘Given what we now know about stereotype threat and trauma and P.T.S.D., where is the tip of our nose, exactly?’ ”

. . . As Mogulof [Dan Mouglof, UC Berkeley’s public affairs administrator] spoke to the reporters, an undergraduate sociology student walked by, holding an iced coffee and a Rice Krispies Treats wrapper. She shouted a question at Mogulof: “Students have a right to go to their classes and feel safe in their classrooms, and you’re ready to compromise that for, like, the First Amendment that you’re trying to uplift?”

“Your concerns are right on the money,” Mogulof said.

. . . Later that fall, Judith Butler, the cultural theorist and Berkeley professor, spoke at a forum sponsored by the Berkeley Academic Senate. “If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values,” Butler said. “We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech.”

Butler’s partner, the political philosopher and Berkeley professor Wendy Brown, was teaching a course called Introduction to Political Theory. “It was an amazing experience to be discussing Mill while all this stuff was blowing up around us,” she said. “It’s one thing for a student to feel that, through the free exchange of ideas, ‘the truth will out.’ It’s another thing to defend that position while Milo is staging his political theatre outside your window.”

Finally, the monetary argument:

Carol Christ [the Chancellor of UC Berkeley] told me that the events of the past academic year hadn’t changed her faith in the First Amendment, but that they had made her wonder how an eighteenth-century text should be interpreted in the twenty-first century. “Speech is fundamentally different in the digital context,” she said. “I don’t think the law, or the country, has even started to catch up with that yet.” The University of California had done everything within its legal power to let Yiannopoulos speak without allowing him to hijack Berkeley’s campus. It was a qualified success that came at a steep price, in marred campus morale and in dollars—nearly three million, all told. “These aren’t easy problems,” Brown told me. “But I don’t think it’s beyond us to say, on the one hand, that everyone has a right to express their views, and, on the other hand, that a political provocateur may not use a university campus as his personal playground, especially if it bankrupts the university. At some point, when some enormous amount of money has been spent, it has to be possible to say, O.K. Enough.”

My rebuttals

1.) The monetary argument.  To ban speakers because defending them costs money is ridiculous. Those responsible for the security (and those who cause the damage that makes security necessary) are the protestors, nearly always of conservative speakers (i.e. “hate speakers”). This argument amounts to saying that the speech we need to ban consists in part of that speech which people deem offensive and respond with violence. Perhaps the tuition of all students should be raised to cover the costs of these protests, which are often levied, unfairly, on groups who invite unpopular speakers.

2.) The list of “offensive” people.  I would argue that even Milo, mountebank and provocateur that he is, has worthwhile things to say: perhaps things with which we disagree, but things that should be aired and debated. So do Charles Murray and especially Heather MacDonald, whose book on policing has much to chew on. How can we counterargue without knowing what our opponents have to say? Which brings us to point #3:

3.) The benefits of free speech. While I admit that there may be marginal harms of some speech protected by the First Amendment, there are benefits that, I argue, outweigh these harms, harms that I see as overrated anyway. Many of the benefits are outlined in John Stuart Mill’s On Liberty and, before the ACLU went down the tubes on the First Amendment, an  an eloquent defense of free speech (including “hate speech”) by its legal director published  in the New York Review of Books. The benefits are the conviction that if competing views are aired, it’s the best way to arrive at social progress and a harmonious society. This, in turns, rests on the proposition that humans are rational and can often be convinced by logic. Steve Pinker makes a convincing case in his Better Angels book that free speech and debate are an important factor in accounting for the moral progress in the world over the last few centuries.

Further, free speech, including hate speech, allows us to sharpen our arguments. If you disagree with Heather MacDonald on the reasons why blacks seem to be targeted by police, you need to know her arguments and the data she adduces. I’ve often said that it’s useful to hear Holocaust denialists because their arguments are often convincing to those who don’t know the facts, and so their opponents may be reduced to gibbering, outraged primates when they can’t answer them. And, of course, one can always change one’s mind after hearing the arguments of one’s opponents. Just think of the moral difference between now and the 1950s with respect to the status of women, gays, and blacks.

Even further, how can we know who believes what if we deem some classes of speech legally unacceptable? Does silencing Steve Bannon, Charles Murray, or Milo Yiannopoulos make their views go away? No, the views just go underground and give these people the right to claim free-speech “victimhood”.  I would argue the opposite: airing their views types these people as regressive bigots and allows us to decide whether we want to further listen to them.

4.) The supposed harms of free speech.  There are two: psychological damage supposedly sustained by those who hear “hate speech,” and actual harm to groups themselves.  Both are overrated. I believe that many of those who claim psychological harm or “victimhood” because of free speech often do so not because they’re really harmed, but because claiming victimhood status makes one special—makes you stand out from everyone else. It’s hard for me to believe, for instance, that pervasive PTSD from speech that can be avoided by simply not listening to it is widespread in society. Some hijabis have manufactured claims of hijab-ripping, often, I think, to increase their status. As for damage to oppressed groups that comes from criticizing them, that is a slippery slope argument (see point 5), and I can’t accept the argument that even “hate speech” causes substantial damage to the groups criticized when the speech (as the courts has deemed) doesn’t promote imminent violence. Would banning the American Nazi Party have reduced anti-Semitism in the U.S.? I don’t think so—the Party declined because of its own stupid pronouncements made it look ridiculous. Does racist speech increase racism? In my view, by exposing bigots and the social harms of bigotry, it reduces racism.  Yes, there may some marginal harms of free speech (after all, someone may be convinced by listening to racist speech) but the benefits of allowing hate speech, especially in view of point 5, far outweigh the harms.

5.) What speech should be banned. and who shall be The Decider? This is not a trivial argument. You might say that speech that calls for the deportation of blacks, or other similar racist nonsense, should be banned, but Muslims, for example, feel just as offended when you criticize their religion. After all, the Muslim attacks that occurred after the publication of the Jylllands-Posten and Charlie Hebdo cartoons were products of a very deep offense that drove its adherents to murder. And what about abortion? There are those who feel that at least some abortions should be banned because of considerations of either religion or the supposed sentience of fetuses. Should we ban their speech because liberal sentiments consider abortion a “right”? Should we ban speech that calls for the destruction of Israel? Why not, if we ban speech that calls for the deportation of immigrants? The problem is that there are people who consider “hate speech” any speech they don’t like, and to give anyone the power to ban that speech is putting a serious weapon into the hands of those who could destroy democracy. The Nazis didn’t take power because of free speech in Germany; they took power because they banned speech, outlawing all political parties besides their own and, ultimately, killing those who spoke up against their policies.

6.) If we ban harmful workplace speech, why not harmful public speech? The prime example here is sexually harassing statements in the workplace, which are clearly harmful to the recipients. They are banned by law as impermissible violations of speech, and I agree. But these are not the same as speech that, say, calls for the destruction of Jews, the building of a wall along the Mexican border, or the banning of gay marriage. In the former, you cannot get away from that speech without risking losing your job. In contrast, “hate speech” can be avoided simply by walking away if you don’t like it—with no penalty. Walking away also limits the harm that can accrue to your own well being by hearing such speech.

Both liberal and conservative U.S. courts have long settled on an interpretation of the First Amendment that has worked well and has allowed the airing of ideas that some consider offensive. Would our country be marginally worse if, say, we prohibited Holcaust denialism, as some countries do? I don’t think so. In the end, one person’s “hate speech” is another person’s “speech worth discussing,” and even speech that is unreservedly odious has a place and a function in a democracy. Creating a principle that some speech is worth banning because it’s offensive risks having those you can’t abide become the deciders, and then come for your speech.

The New Yorker has jumped the shark on this one, but it’s been inching toward Regressive Leftism for a long time. I’m done with its virtue signaling. This last article was the ultimate form of virtue signaling, and doesn’t even make a serious attempt to show the arguments for free speech, even though it alludes to them.

h/t: BJ, Nilou

NYT legal columnist: Let’s rethink the First Amendment now that it’s being used by conservatives

July 3, 2018 • 10:00 am

My title may be exaggerated a tad, but not that much, for the point of Adam Liptak’s article (click on screenshot below) is that conservatives are starting to use the First Amendment to defend or buttress legal decisions that liberals don’t like, and therefore the First Amendment is outdated or should be reexamined. The title of the piece comes from Supreme Court Justice Elena Kagan, a liberal who decried her courts’ recent decisions against public unions and in favor of religious abortion “crisis centers” on freedom-of-speech grounds. Further, the Citizens United case, in which corporations were allowed unlimited spending on political campaigns, was also deemed by the Court to be a free speech issue. (Here I disagree on the grounds that corporations are not individuals.)

Liptak is a New York Times reporter whose beat is the US Supreme Court; he also writes the legal column “Sidebar” for the paper. Have a look at his piece.

Liptak is distraught that the free-speech issue, once used to defend liberal cases, is now being used to defend conservative cases. Some of his points (I use quotation marks for direct quotes):

  • Free speech was once used to protect the powerless and dispossessed, as in civil rights cases or protests against the Vietnam war. Liptak, using other people to justify his words, says “some liberals now say that free speech disproportionately protects the powerful and the status quo.”

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

“To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

  •  “A new analysis prepared for The New York Times found that the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech. That is a sharp break from earlier eras. . . As a result, liberals who once championed expansive First Amendment rights are now uneasy about them.”

    “The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”

Here is an analysis of the data, showing that as courts became more conservative, the cases involving conservative speech have increased, the win rate hasn’t changed much, but the win rate for liberal speech cases has dropped. Well, what do you expect given that the Supremes are always ideological and now the Court is becoming increasingly (and to my mind, dangerously) conservative?

Seriously, “free speech reinforces and amplifies injustice”? It is used against the dispossessed? Excuse me, but we hear loudly and frequently from the dispossessed and minorities and the Left, especially in liberal newspapers like the New York Times and Washington Post, and in Control-Left publications like HuffPost.

The reason why free-speech considerations are increasingly used to buttress conservative decisions is, as I said, because the Supreme Court has always been politicized (as in the Burger and especially the Warren Courts), but now that conservatives are ascendant, they are using the same arguments to prop up their own ideologies. The problem is not with the First Amendment, or with free speech, but the fact that the country has become more conservative in recent years, and with it the justices on the Supreme Court.

In fact, as the article notes, Leftists and progressives like Ralph Nader used a free-speech defense to protect advertising and commercial “speech,” in a successful attempt to overturn state laws banning advertising or providing information about prescription drug prices. Now Nader and other say that they regret supporting that attempt, since such defenses are now being used (largely unsuccessfully) to attack cigarette-label warnings, prohibitions of giving alcohol content on beer cans, and so on.

What’s sauce for the goose is sauce for the gander. While you may disagree with the courts’ arguments, liberals used the First Amendment to get their agenda passed, but now that conservatives have learned from that tactic, liberals are now saying that free speech is overrated, or is used to buttress the powerful against the oppressed. And it’s ironic that a free press, in the form of Liptak’s article, is being used to make this point. Liberals don’t like the results, but again—it’s not the fault of the First Amendment, the best tool we have to protect our democracy—but the American public, who elected conservatives to Congress and the Presidency.

I’m not sure how I feel about the recent conservative decisions overturning the requirement for abortion-opposing health clinics to tell their patients about alternatives like abortion, although I tend to think that the decision about unions had some justification. In effect, it forced people to join public unions that represented their group, and to pay dues to those unions, even if those forced to join disagreed with the unions’ aims and tactics. One can make a case that that is forcing people to espouse a certain point of view when they don’t want to—a free speech issue. An alternative and reasonable solution is to allow people to opt out of such unions, but then to prohibit them from getting any of the benefits that the union negotiates for their members.

In that case, I have to agree with Samuel Alito’s statement in the union case judgment:

“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” he wrote. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.”

Justice Kagan’s response—that everything involves speech and thus could be decided on the basis of speech law—is not convincing.

I’m sorry, but jettisoning the most powerful buttress to American democracy, and a bedrock of the moral and legal progress we’ve made in the last century, just because conservatives use it, too, is throwing out the baby with the bathwater. For if the First Amendment is deemed useless, what protection does anyone have against government censorship?

This article is part of the Times’s new emphasis on Control-Leftism, as instantiated by the opprobrium leveled against Bari Weiss by her fellow reporters. It’s sad to see the good gray Times go this route, but I think it is. I have another wonky article they just published, and may discuss it in my next post.

 

FFRF once again fights government over unconstitutional housing allowance for ministers

June 19, 2018 • 1:00 pm

For years the Freedom from Religion Foundation (FFRF) has been fighting a no-brainer legal battle against the U.S. government, which by law makes all ministers’ housing allowances completely tax-exempt. This means that if a minister is given, say, $10,000 per year by his church to subsidize housing, that money is completely tax free. It is, in effect, a gift.

This is unique for religious organizations and doesn’t apply to nonprofits like the FFRF or charitable organizations.  It’s also patently unconstitutional because it privileges religion over non-religion. The FFRF, or any nonprofit atheist organization, may give housing allowances to its employees or heads, but those are taxable. (According to FFRF lawyer Andrew Seidel’s description of the case on Patheos’s Freethought Now! website, the exemption is for “ministers of the gospel.” I suppose that means all pastors, rabbis, imams, and the like, but only Christians really preach the gospel!”) Annie Laurie Gaylor and Dan Barker, married co-Presidents of the FFRF, also get a housing allowance, but must pay taxes on it.

As the FFRF notes in an email bulletin, it’s not just the cost of housing (rent or mortgage) that is subsidized:

Clergy are permitted to use the housing allowance not just for rent or mortgage, but also for home improvements, including maintenance, home improvements and repairs, dishwashers, cable TV and phone fees, paint, towels, bedding, home décor, even personal computers and bank fees. They may be exempt from taxable income up to the fair market rental value of their home, particularly helping well-heeled pastors. The subsidy extends to churches, which can pay clergy less, as tax-free salaries go further.

This tax break given to ministers costs the government (i.e., the taxpayers) about $700 million per year! There is no rationale for keeping it unless similar exemptions are given to people, regardless of religion, in similar situations, i.e. nonprofit organizations. And the FFRF’s efforts to overturn a palpably illegal law have been stymied by the government over technicalities.

An original suit filed in 2011 was victorious; Judge Barbara Crabb for the Western District of Wisconsin ruled in 2013 (here) that the religious exemption violated the Establishment Clause (the First Amendment) by privileging religion. This was a major victory for the FFRF—and for secularism. It was also a shock to the government, and to the many churches and ministers who benefit from this illegal arrangement.

The government appealed. They won in 2014, but only on a technicality. The three judges on the Seventh Circuit court of appeals ruled (decision here) that the plaintiffs lacked the “standing” (legal requirement) to sue. That was because Gaylor and Barker had never asked the Internal Revenue Service for a refund of their taxes on the housing allowance. This was a way for the government to dismiss the case without having to face the First Amendment issues involved.

With standing, the plaintiffs went back to court. And they won in October of last year. And once again the government, determined to privilege religion, appealed to the Federal District Court of Appeals. Yesterday the FFRF filed yet another brief before the Seventh Circuit Court of Appeals (Annie Laurie Gaylor et al. v. Stephen Mnuchin [Treasury Secretary] et al., pdf here). As an email I got from the FFRF noted:

The 7th Circuit threw FFRF’s original suit out on standing, arguing that Barker and Gaylor hadn’t gone through the motions of asking for a refund of their housing allowance from the IRS. Accordingly, they sought the refunds, and when denied refunds for the year 2012, went back to court.

Also named as a plaintiff is Ian Gaylor, representing the estate of FFRF President Emerita Anne Nicol Gaylor, who died in 2015 but whose retirement was paid in part as a housing allowance she was not allowed to claim in her lifetime.

As FFRF’s brief puts it, “Only ministers can exclude cash housing allowances, a result that is patently unfair.” Even the bible, the brief cryptically notes, commands citizens to “render unto Caesar the things which are Caesar’s.” The government “ignores basic principles of neutrality and fairness when it comes to clergy taxation,” charges FFRF.

The brief takes digs at the numerous friends of the court briefs filed against FFRF, representing outraged ministers and denominations as varied as Unitarian Universalists, Jewish, Muslim, mainstream Protestant and evangelical Christian groups, and some 8,000 individuals. “The silence of the amici is particularly noteworthy as none even suggests that expanding the cash housing allowance exemption to non-clergy might be fair. They confirm the value of the exemption, while seeking to confine it to themselves,” contends the brief.

As Andrew Seidel notes in his Patheos post, the government’s brief consists largely of a list of religious organizations favoring the exemption, so their argument is basically not a Constitutional one, but simply “a lot of us do it and want that tax break.” If the courts are really determined to keep the ministerial privilege, they’ll have to do some fast tap-dancing this time. And of course if the government loses, they can keep appealing—all the way up to the Supreme Court.  Yet the tax break is really so palpably unconstitutional that I can’t imagine what the courts could do to keep it, unless they give similar tax breaks to atheist nonprofit organizations or any comparable nonprofit.

If you want links to the judicial history of the case, here are some:

Appeal Documents

Dan and Annie Laurie (and the whole apparatus of the FFRF) are formidable and tenacious foes, and of course I hope they win. Here they are with their new brief:

I’m a member of the FFRF (it’s only $40 a year, and you get a cool and long monthly newspaper), and am also on the honorary board of directors. If you can spare $40, I’d urge you to throw it their way, as they use the money to actually get stuff done—and to keep this country secular, the way its Founders intended.

 

“In God We Trust” signs become mandatory in Louisiana schools

June 2, 2018 • 9:46 am

The Freedom from Religion Foundation (FFRF) has its work cut out for it, as there is never an end to the Christian, conservative, and Republican efforts to push God, Jesus, and faith into the public schools, despite its violation of the First Amendment. When they lose a case, they simply grow a new head, like the hydra of mythology.

Now Louisiana has got into the act. As the Times-Picayune of New Orleans reports, the governor of Louisiana signed a law on May 23 that mandates that the “official U.S. motto”, “In God We Trust”, be put on display in every public school by August of 2019. (Dwight Eisenhower proclaimed this the “national motto” in 1956.)

Further, that law requires the schools to teach students about the motto in its social studies classes, as well as “about the U.S. flag and other ‘patriotic customs'”.

This is the kind of sign we can expect in Louisiana’s public schools in about 15 months:

(From paper): This official Architect of the Capitol photograph displays a bronze plaque of the nation’s motto. Louisiana’s public schools will have to display this motto no later than August 2019.(Public domain, via Wikimedia Commons)

According to the paper, the law was proposed by State Senator Regina Barrow—a Democrat!—to help curb “moral decay” in the schools.

Regardless of the fact that this motto is on U.S. currency, and has been declared legal in that respect, it still violates the spirit of the First Amendment. After all, it entangles church and state, and, increasingly, Americans aren’t trusting in God. Year by year, we’re losing our religion. Really, how many of us “trust in God”, and how do we trust in God?

I don’t know if the FFRF will fight this sign, but I’ve written them to find out. They may find it a useless battle given the legality of that motto on U.S. currency. But that’s money, and this is the public schools, considered an organ of the U.S. government. Promulgating in God in the schools, whether through teaching creationism or displaying an untrue sign that pushes God, is unconstitutional. I’m even wondering if Muslims can sue, requiring “In Allah we trust”—something that would probably sink the whole endeavor.

 

h/t: Blue