Category: First Amendment

Pinker on free speech and academic freedom

October 4, 2019 • 12:00 pm

Here’s a short Big Think talk by Steve Pinker, much demonized by the success-hating Pharyngula crowd as well as those who make their living by prognosticating the demise and degradation of humanity or our lack of social progress. Here Steve advances the well-known arguments for both free speech and academic freedom, which is simply free speech (as well as freedom of inquiry, the right to pursue what interests you) in a university setting. The arguments may not be new, but in this generation need to be repeated endlessly, for many young people and Leftists are beginning to mutter darkly that free speech is overrated.

And so Steve’s rationael for free speech is worth hearing again:

“We just don’t know any route to knowledge other than what Karl Popper called ‘conjecture and refutation’: throwing an idea out there and seeing if it withstands attempts to falsify it.”

This of course refers pretty explicitly to empirical assertions, i.e., science construed broadly, but can also apply to philosophical claims that are either self-contradictory or contain hidden and erroneous assumptions that can be dispelled (i.e., the Euthyphro argument for a god-given morality).

One cannot falsify ideas that cannot be tested by observation of experiment. These include moral claims, which I view as ultimately subjective. But if your moral (or social) claims depend on assertions of fact, or are claimed to have certain consequences, those claims are subject to empirical examination, testing and falsification.

But of course there are other reasons to encourage free speech besides the empirical clash of ideas being tested against reality: these other reasons include the exposure of peoples’ ideas as a way to judge a person’s mettle, to hear points of view that may change your mind even on subjects with no clearcut objective “truths” (e.g. the quality of a novel), and to help people understand each other’s points of view.

At 2:30 Pinker argues, correctly, why it’s especially important for universities to adopt free speech because they are “idea factories”, even if those ideas make you uncomfortable.

At the end, Steve describes those aspects of speech (libel, incitement to imminent violence, and so on) in which it’s necessary to circumscribe speech. Tomorrow I’ll analyze an article whose author argues that those limits should indeed be tightened more narrowly than how American courts have construed the First Amendment.

h/t: Michael

National television networks refuse to air First-Amendment commercial featuring JFK

September 11, 2019 • 10:00 am

A news release from the Freedom from Religion Foundation (FFRF) tells us that while this FFRF commercial featuring John F. Kennedy was played three years ago on the ABC television network, it was rejected by ABC for airing during the Democratic debates in Houston tomorrow.  This was after ABC refused a much more provocative ad, one featuring Ron Reagan, the former President’s son (see it here).

From the FFRF:

“Every year we ask the major networks to reconsider and run our commercial,” explains FFRF Co-President Annie Laurie Gaylor. “We were disappointed, but not surprised, when ABC once again refused to run the Reagan endorsement spot.”

But, Gaylor says, she was shocked that ABC next rejected a commercial largely featuring a video excerpt of a famous speech by John F. Kennedy. As a presidential candidate, JFK gave a talk to a gathering of Protestant ministers in Houston in 1960, intending to allay their fears that as a Catholic he would be beholden to the Vatican rather than to the Constitution.

In his strong remarks in favor of secular government, JFK said: “I believe in an America where the separation of church and state is absolute.” FFRF’s commercial leads with footage from his speech, then states: “Let’s restore respect for America’s secular roots. Help the Freedom From Religion Foundation defend the wall of separation between state and church. Join us at FFRF.ORG. Freedom depends on freethinkers.”

The ad concludes with the strains of “Let freedom ring,” as FFRF’s emblematic image appears of a Lincoln penny with the words “In Reason We Trust” instead of “In God We Trust.”

FFRF produced this commercial, which first aired on “CBS This Morning” and the “Monday CBS Evening News” in 2012, in response to a remark by then-presidential candidate Rick Santorum, after he said JFK’s remark “makes me want to throw up.”

Ironically, FFRF had no trouble placing the JFK spot nationally on “ABC World News Tonight” on Sept. 24, 2016, to protest Pope Francis’ joint address to Congress.

Note that this ad is quite unprovocative. All it does is show a former President affirming the church/state separation principle of the First Amendment. Apparently the networks are so sensitive about Militant Atheism that they won’t even air an innocuous ad like this:

 

More First-Amendment shenanigans: Federal court rules that a Christian cross on a county emblem is not religious

September 5, 2019 • 1:30 pm

In late June, the Supreme Court made a portentously bad decision, ruling that the “Bladensburg Cross”, a giant cross on public land in Maryland, did not violate the First Amendment’s stipulation of freedom of (and from) religion. (The vote was lopsided: 7-2.) The reasons was the usual one: that by merely existing for a long time, the cross had shed its religious significance—just like the National Motto, “In God We Trust”, is seen to be cultural rather than religious, ergo it gets to stay on U.S. currency. As I wrote at the time:

As usual, the pretense is that the cross is no longer a wholly religious symbol. Here are the words of Justice Alito, who wrote for the majority:

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent . . .  For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark.

For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.

In other words, religious symbols are okay on public land because they have assumed other meanings as well. And we must have “respect and tolerance” for believers. But why a cross rather than a religion-neutral monument? Would the court be so tolerant of a Jewish Star of David, or a statue of Ganesha? Of course not, because they see America as a “Christian nation”.

Now an equally bad ruling, from a Federal appeals court, cites the Bladensburg decision as a precedent, as I knew would happen. The pretense that religious symbols lose their religious significance over time is a mindset seriously threatening our cherished separation of church and state.

You can read about that decision at the Freedom from Religion Foundation (FFRF; click on the screenshot below).

The issue at hand was the seal of Lehigh County, Pennsylvania, which is shown below. As you can see, there’s a Christian cross figured prominently in the center.

A religious symbol on a secular governmental seal should be unconstitutional, and, in a suit brought by the FFRF earlier, they prevailed in a lower court. But the appeals court, citing the Bladensburg precedent, overturned that decision. For now, the seal can stay, and I doubt that the FFRF will appeal to the Supreme Court, which will just affirm the appeals court because the Supremes are, by and large, religious conservatives and Christian nationalists.

From the FFRF report:

The Freedom From Religion Foundation, a national state/church watchdog, and four individual plaintiffs won resoundingly in district court in 2017 when a judge found unconstitutional the Lehigh County seal that features a prominent cross. “The undisputed facts demonstrate that the county’s original purpose for including a cross on the seal is not secular,” Judge Edward G. Smith had ruled in 2017.

The 3rd U.S. Circuit Court of Appeals in Philadelphia unfortunately relied on the Supreme Court’s recent Bladensburg cross decision to rule the clearly Christian seal acceptable.

The opinion, written by Judge Thomas Hardiman, who was rumored to be on President Trump’s short list for the U.S. Supreme Court, says that the 3rd Circuit was bound to uphold the seal and cross because of the Bladensburg ruling. Hardiman holds that, after Bladensburg, “longstanding symbols benefit from ‘a strong presumption of constitutionality,’“ by which he means, “longstanding religious symbols.” The seal dates back to 1944.

The alarming nature of the U.S. Supreme Court’s Bladensburg judgment can be seen in this opinion. Instead of protecting the minority from the tyranny of the majority, Hardiman rules that the majority can trample the First Amendment in the name of their religion, concluding that the seal “has become part of the community.”

“Part of the community”. Yes, that is the flimsy ground on which the First Amendment will founder. After x number of years, any religious symbol, according to the courts, loses its religious patina and becomes a “part of the community.”

Well, not MY community, which is secular and atheistic. And if it’s no longer religious, why is it always religious groups defending things like the Bladensburg cross?  Believe me, it’s not because the cross is a cultural icon.

Indeed, the court affirmed the Christian background of the symbol:

FFRF’s appellate brief, filed in April of last year, highlighted the bedrock constitutional principles that the Christian seal violates as the symbol of Lehigh County government.

The federal lawsuit was filed in August 2016 in the U.S. District Court for the Eastern District of Pennsylvania. Co-plaintiffs with FFRF are four of its local members who’ve objected to encountering the religious symbol on county property. The seal is on documents, many official county forms and reports, the county’s website, in a display in the Board of Commissioners meeting room and even on flags displayed prominently at the entrance of county buildings. The board adopted the imagery that appears on the seal in 1944. (Allentown, the third-largest city in Pennsylvania, is located in Lehigh County, with a population of about 350,000.)

After FFRF complained, creating a minor firestorm, the Board of Commissioners sent a reply that proved the state/church watchdog’s point: “The cross, one of more than a dozen elements, was included to honor the original settlers of Lehigh County, who were Christian.”

That’s why it’s incongruous that the 3rd U.S. Circuit Court of Appeals has found the Lehigh County seal acceptable.

FFRF lawyer Andrew Seidel, taking the long view, says that this “cultural heritage” nonsense will eventually pass as the U.S. becomes more secular. But the thing is, I’d like to see this happen in my lifetime, and it won’t.

What free speech isn’t

August 26, 2019 • 12:00 pm

Ken White is an attorney specializing in free-speech issues, and is the main contributor to the well-known and useful law website Popehat. This week he has a good article in The Atlantic about American free-speech law, which you can read by clicking on the screenshot below:

We talk a lot about free speech on this website, as it’s an important issue in politics, especially on American college campuses. But “free speech” as construed by students often differs considerably from free speech as the courts have defined it under the First Amendment. White’s article aims to let us know what the law really is, not what it should be. As he says:

What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be. That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact, the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected.

If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment. Those tired tropes are barriers to serious discussions about free speech. Any useful discussion of what the law should be must be informed by an accurate view of what the law is.

I’ve been trying for years to point out these tropes, with mixed success. Because hope prevails over experience, I’m trying again. Here are some misstatements, misconceptions, and bad arguments about the First Amendment you will encounter regularly in American media. Watch for them, and recognize how they distort the debate over speech.

This is a very useful primer for anyone who wants to wade into this contentious area. I’ll just give the headers (in bold) for the misconceptions and muddy thinking he addresses, but to see why they are misconceptions, peruse the article: it’s a must-read.

“Not all speech is protected; there are exceptions to the First Amendment.”

“This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.”

“Incitement and threats are not free speech.”

“Fighting words are not free speech.”

“Hate speech is not free speech.”  

“Stochastic terrorism is not free speech.” White defines “stochastic terrorism” as “speech that, according to some advocates, whips up hatred against groups and leads unbalanced people to commit violence against them, even if it doesn’t explicitly call for violence. “

“We must balance free speech with [social good].” / “There is a line between free speech and [social evil].” 

JAC: Here I’ll put White’s take, as this is a very common misconception among Leftists:

It’s common, in free-speech debates, to find people arguing that America must balance free speech and safety, or free speech and the right to be free of abuse. A related rhetorical trope is “line drawing”: the idea that we must draw lines between free speech and abusive speech.

In point of fact, however, American courts don’t balance the benefits and harms of speech to decide whether it is protected—they look to whether that speech falls into the First Amendment exceptions noted above. As the Supreme Court recently explained, the “First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

A related trope is “This isn’t free speech; it’s [x],” where x is bullying, or abuse, or some other social evil. But many social evils are protected by the First Amendment. “This isn’t free speech; it’s [x]” is empty rhetoric unless x is one of the established First Amendment exceptions.

“They do it in Europe!”

“We talked to a professor and a litigator who said this is not protected speech.”

“This speech may be protected right now, but the law is always changing.”

South Dakota requires all public schools to PROMINENTLY display “In God We Trust”

July 29, 2019 • 8:45 am

We all know that “In God We Trust” is the U.S. national motto, though the unofficial motto—a much better one—is E pluribus unum (“Out of many, one”). The former is divisive, the latter unifying. The change in mottos was made in 1956, during the Cold War, and was largely a response to “godless Communism”: an American affirmation of “See, we’re better than you are!” The motto bill was passed by both houses of Congress and signed into law on the same day by President Eisenhower.

Of course this motto violates the First Amendment, as it’s a government endorsement of religion over nonreligion, but, as Andrew Seidel recounts in his book The Founding Myth, the courts have been weaselly about this, interpreting this kind of breach as “not religious” and “part of tradition”. But I have little doubt that founders like Madison and Jefferson would never have approved of such a motto.

I’m not sure exactly why the forces of Christianity are trying to push this kind of stuff on us more than ever. Perhaps it’s a desperate response to the increasing secularization of America.  And so “In God We Trust” bills are passing in various states. The latest is in South Dakota, where, according to multiple sources (e.g., CNN and ThinkProgress), students returning to public schools this year will be greeted by the results of a new law: a required public display of “In God We Trust”. And it has to be “prominent”, like this stencil on a wall at South Park Elementary in Rapid, City, South Dakota (photograph from 6 days ago). I find this dictatorial and ridiculous: something out of Nineteen Eighty-Four (just substitute “Big Brother” for “God”).

Photo: Adam Fondren/Rapid City Journal via AP

The law takes effect this month. As CNN notes:

A bill signed by Gov. Kristi Noem mandates that the words be on display for students to see beginning in the 2019-2020 school year.

The display can be on anything the principal feels is appropriate for their school, like a plaque or student artwork.

But there are requirements. The display must be at least 12 inches square and must be in a prominent location.

“A prominent location is a school entryway, cafeteria, or other common area where students are most likely to see the national motto display,” the bill said.

Here’s most of the bill; note that, anticipating lawsuits, display of the bill will be defended by the state at no charge to the school or school district, though it’s not clear where the money will come from. (Click on the screenshot to get a pdf of the full bill).

There are some savvy students there, though their attempt to modify the bill failed miserably (from CNN):

Lawmakers have heard concerns that displaying the motto may alienate students of non-Christian backgrounds.

A group of Stevens High School students in Rapid City spoke to their school board to propose a modification to the sign that would include mention of science, Allah, Yahweh, the Spirits, Buddah, Brahman and “ourselves” in addition to God, according to CNN affiliate KOTA TV.

“I think that’s a really foundational element of American society is that we are a cultural melting pot and it is really important that we make all people who come to America to feel welcome and to be more in accordance with the First Amendment since we all have the freedom of religion,” student Abigail Ryan told KOTA TV.

The board heard the opinion but took no action, the station said.

ThinkProgress adds a bit more information (my emphasis):

Only one Democratic state senator voted in favor of the bill.

During the 2019-2020 school year, all South Dakota public schools will have to display the “In God We trust” in a “prominent location” and the words “may be no smaller than twelve inches wide by twelve inches wide.” Prominent location is defined as a school cafeteria, school entryway, or other common area. The law also requires that the attorney general provides legal representation at no cost to the district, employee, school board, or member of the school board and that the state will financial responsibility for any monetary damages, attorney’s fees, and other costs.

This bill is part of a national movement, too:

South Dakota is not alone in its decision to require public schools to display the motto. According to The Washington Post, at least six states passed these kinds of laws in 2018 and another 10 have introduced or passed them this year. Kentucky schools are also getting ready to display the motto prominently in public schools this year.

This will clearly go to the Supreme Court, and it’s pretty certain they will declare it constitutional. After all, if every $1 bill the kids have carries “In God We Trust” on it, and that’s legal, why not in the schools?  But we can be sure that there will be challenges. The Freedom from Religion Foundation, for instance, has correctly deemed the law “exclusionary”, and adds this in a bulletin (my emphasis):

“The Freedom From Religion Foundation, based in Madison, Wis., which has legally challenged the motto’s inclusion on U.S. currency, alerted its South Dakota members to contact their legislators to express opposition to the law,” AP reports. [JAC: this bulletin was issued four days ago, though the law passed in March.]

FFRF Co-President Annie Laurie Gaylor told AP: “Our position is that it’s a terrible violation of freedom of conscience to inflict a godly message on a captive audience of schoolchildren.”

“In God We Trust” was belatedly adopted as a motto when President Eisenhower signed legislation at the behest of the Knights of Columbus and other religious entities, which undertook a national lobbying campaign during the height of 1950s zealotry. The original inclusionary U.S. motto, chosen by a distinguished committee of Jefferson, Franklin and Adams, is the Latin E Pluribus Unum (From Many, [Come] One). As FFRF principal founder Anne Gaylor always pointed out, the religious motto isn’t even correct: “To be accurate it would have to read ‘In God Some of Us Trust,’ and wouldn’t that be silly?”

Anne Gaylor’s remark is more apt now than ever. The nonreligious segment of the U.S. population is currently the largest “denomination,” surpassing Roman Catholics at almost 24 percent of the populace. One-third of Millennials are “Nones,” and one-fifth of Gen Z explicitly identifies as atheist or agnostic. A large portion of the schoolchildren in South Dakota belong to Gen Z — and with the required display of an explicitly religious motto, religion is being imposed on the freethinkers among them.

It really is a violation of the First Amendment to force American kids to confront a motto that many of them don’t accept. If the courts let this stand, it will represent a further erosion of the wall between church and state. These laws are travesties, but show the desperation of the faithful who, in a climate of increasing secularism, need to force their own religion down the throats of children—in schools that are an arm of the U.S. government.

I know we have readers in South Dakota, so weigh in below. Are you people doing anything about this?

I was wrong about religious proselytizing in National Parks

July 4, 2019 • 5:30 pm

Yesterday, incensed by the presence of a pair of proselytizing Jehovah’s Witnesses in a lovely little National Park, Pu’uhonua O Honaunau National Historical Park, I wrote a post wondering whether this kind of leaflet-mongering was legal, or somehow violated the First Amendment.

According to reader Jenny Haniver’s comment on that post, my suspicions that this flouted the First Amendment was wrong. The Supreme Court and other courts have ruled that not only is religious activity permitted in national parks, but you don’t even need a permit to proselytize.

Looking back, I should have realized this. After all, religious speech is just a form of speech, and if free speech is permitted in National Parks, which it is on many government properties (sometimes you have to get a permit), then religious speech should be as well.

So perhaps I overreacted. I guess the sight of a pair of Jehovah’s Witnesses seeking to spread their odious doctrine in a National Park was more than I could take, and I had to find out if it was legal. Apparently it was. My apologies for raising a fuss, but I, for one, have learned something.

That said, I still think groups should be required to get a permit to demonstrate or pass out literature in national parks, and I’m still offended that the Jehovah’s Witnesses don’t even have the decency to leave us alone to enjoy nature. It’s bad enough that they knock on our doors to ask us if we have a minute to hear the Good News.

Here I am enjoying the beautiful lava beach behind the main part of the park.

And here’s my message to all you godless heathens:

Another defeat for the First Amendment: Supreme Court rules that the “Bladensburg cross” is not a religious symbol

June 20, 2019 • 1:30 pm

The strategy of American courts in their desire to continue allowing religious incursion into the government—be it “In God We Trust” on our money or religious symbols on public land—has been to pretend that religious symbols and mottos morph into nonreligious, historical and secular icons over time. This is patently bogus, an offense to anybody with two neurons to rub together.

And so, in an important decision about the First Amendment, the U.S. Supreme court ruled today that a giant cross on public land in Maryland, commemorating war dead, was constitutional. And the vote of the Roberts court, though opinions were fractured, was 7-2 (only Ginsburg and Sotomayor dissented; where was Kagan?). Read the Washington Post‘s take by clicking on the screenshot below. The full range of opinions can be found in a pdf here.

As usual, the pretense is that the cross is no longer a wholly religious symbol. Here are the words of Justice Alito, who wrote for the majority:

The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent . . .  For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark.

For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.

In other words, religious symbols are okay on public land because they have assumed other meanings as well. And we must have “respect and tolerance” for believers. But why a cross rather than a religion-neutral monument? Would the court be so tolerant of a Jewish Star of David, or a statue of Ganesha? f course not, because they see America as a “Christian nation”.

The Freedom from Religion Foundation calls the decision a “shameful legacy for the Roberts Court”, and it is, for they are dismantling one of the most important amendments to the Constitution.  And the FFRF adds this:

Ominously, instead of focusing on legal principles, Alito looks to “history for guidance,” trotting out typical Religious Right examples — such as legislative prayer, the day of thanksgiving Washington declared (which the court erroneously called a “National Day of Prayer”), some religious language in the Northwest Ordinance, and George Washington’s Farewell Address’ “religion and morality.” The central test for determining these violations, known as the Lemon test, was set aside in favor of the argument from history, though not explicitly overturned by a majority of the justices.

“The passage of time gives rise to a strong presumption of constitutionality,” writes Alito.

In an elegant and thoughtful dissent joined by Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg gets it right.

“Using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized,” the dissent states. “By maintaining the Peace Cross on a public highway, the [Maryland-National Capital Park and Planning] Commission elevates Christianity over other faiths, and religion over nonreligion.”

Ginsburg persuasively lays out how such public crosses alienate a large and fast-growing segment of the U.S. population.

“To non-Christians, nearly 30 percent of the population of the United States (Pew Research Center, America’s Changing Religious Landscape 4 (2015)), the state’s choice to display the cross on public buildings or spaces conveys a message of exclusion: It tells them they ‘are outsiders, not full members of the political community,’” she writes.

Yes, Ginsburg and Sotomayor got it right. It’s still a cross, and still a religious symbol, and the rest of the court, in their desire to tear down the wall between church and state, is pretending that the cross on which Jesus supposedly died isn’t really religious—in a religious way, that is.

As Andrew Seidel (an FFRF lawyer) told the audience in our Chicago discussion nine days ago, we can expect this behavior to continue for a long time, as the conservatives on the Roberts court (save Thomas) are pretty young. But he also thinks that the inevitable secularization of America will, in the future, pull the pendulum back.

I hope so, but I don’t share his confidence. Americans, with their sense of fair play, may see decisions like this as a meaningless sop to the faithful (note Alito’s call for “respect and tolerance” for Christians). But they’re not meaningless, and that’s why the founders created the First Amendment.