Whose Freedom?

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1st Amendment, free speech, Paris

This whole Charlie Hebdo thing is pretty deep if you stop to think about it. Of course most don’t treat it as such. It has become a knee-jerk reaction for most. Jon Stewart pointed this out when he suggested that some countries who have championed free speech and press, actually arrest plenty of speech in their own countries.

We are all in danger, it seems to me, of being hypocrites, myself included. I confess right now that I have participated in at least two attempts to squelch the free speech of others when it came vile bigoted hate speech against the President.

It’s not nearly as easy an idea as it might appear to be.

A friend of mine posted a link to statements made by the Pope. He suggested that free speech must be protected, but that,   “You cannot insult the faith of others. You cannot make fun of the faith of others.” Francis did not expound on what should be the consequences of such inappropriate speech, but he warned that the attacks in Paris can fairly be expected from such talk.

I tend to disagree with Francis here, at least insofar as he claims that the ends justify the means. If he suggests that we should ban hate speech vis-a-vis religion if it would engender violence, then this leaves us under the thumb of every radicalized person about any issue he or she defines as “religious”. Where would it stop?

I am aware that all speech is not protected. As Oliver Wendell Holmes said in Schenck v. United States, 249 US 47 (1919), you are not free to yell fire in a crowded theatre. Forever after we have lived with the standard of “clear and present danger” as the bellwether of when speech crosses a line to incite lawlessness.

To succumb to the threat of violence if you “say those things” invites the standard (a difficult one at best) to be flipped to be defined by the one threatening the violence. I have no doubt that the Pope spoke in the general, and as he put it in a friendly manner not meant to be a papal statement of substance.

Yet, of course, those inclined to think little and shallowly about the subject go off the deep end. In the wake of the Paris shootings, Oxford University Press, certainly one of the more respected publishing houses in the world, announced that it would no longer use the words pig, sausage, or pork-related products in its children’s literature. This as a means to not offend Jewish and Muslim readers.

They have been not only roundly ridiculed for such a decision, but criticized as well by the reputable press.

In the post I cited at the beginning, one read the expected Christian whine, “The only ones we have to be kind to are the militant, extremist muslims who might behead us. All the other religions are fair game.” Such rhetoric is of course, both nonsensical and off point.

In fact the world community has stood up very clearly and said, as offensive as Charlie Hebdo is to most people at one time or another, they have he right to say what they wish about Muslims or anybody else for that matter. In a country that is overwhelmingly Christian, (Pew estimates that 78.4% of all Americans define themselves as Christian) it is predictable that the religious right will complain that it is a victim of persecution!

This all suggests that at least some of the Je suis Charlie is nothing more than acclamation that the “right” religion is being attacked. Should Charlie Hebdo attack, (as they of course have done and no doubt will continue to do) Christianity, these self-defined freedom proclaimers will be calling for Charlie’s head.

Some things it seems to me need to be cleared up.

Speech is speech, and unless it reaches the “clear and present danger” standard, ought under no circumstances be prohibited. Westboro Baptist must be allowed to spew it’s hate, as well as the KKK and various right-wing evangelicals and their “burn the Quran”. Atheists who call believers names fall into the category as well.

Speaking against a religion is not persecution of that religion. Persecution involves state action to suppress a religion because of its existence. That does not mean that it is right or to be championed. It is to be marched against, spoken against, and shunned in the most clear way. But it must not be prevented.

When we speak of “not offending” another religion, we are again talking about state action. It is improper to set up creches in public places such as town property, because that is the government speaking then. It is quite proper for a private establishment decorate as it wishes. This is I think where people get most confused.

When a store decides to use the phrase “happy holidays” they are not persecuting Christians, they are choosing to respect all their patrons, Christians and others as well. Similarly if a store chooses to say Merry Christmas or Happy Kwanzaa that is their choice as well.

While I see Oxford Press’s point, I think they have stepped over the line. Some attempts at political correctness are simply absurd. Small children have no clue the point being made, and who are really addressed are parents, who are surely capable of explaining to their young if they think it necessary.

We simply begin down a dangerous path when we start deciding that certain types of speech are not allowed. In Germany for instance, I believe it is still a crime to speak out in denial of the Holocaust. While there might have once been reason to do such a thing in the raw years immediately after WWII, I’m not sure it is still valid. Many countries have liberal prohibitions of speech that attacks the state. These too are wrong, as most of us would agree.

We must never forget that at one time, the most innocuous of things today was then blasphemous. People were arrested for speaking about all sorts of things that threatened the state (religious or secular) either directly or indirectly. We have come a long way, in most of the civilized world. If we resort to making it illegal to speak our minds about anything beyond what threatens life itself, we run the risk of turning backward down a path that leads to dictatorship, repression, and tyranny.

Those on the Right, who so vociferously espouse “our freedoms” should be the first in line to defend speech. But of course, they have are not. But then, true patriots reside elsewhere on the spectrum, as we all suspect.

 

Exactly How DO You Manage to Walk and Chew Gum at the Same Time?

Tags

1st Amendment, free speech, religious freedom

The Extremist Right has its panties in a twist once again.

Just once I wish they would actually think through their objections and place them side by side their other objections and make sure all that shit lines up. Cuz it never does you see, for the Extreme Right have brains that are rather odd. Cognitive Dissonance is well, their best friend.

See in the Extreme Right mind, beliefs and ideas are fairly free-floating. They may bump into each other, but they are like tea cozy meetings–a blind teapot meeting a blind tea-pot. They politely say “S’cuse me” and careen off to bump into another idea, unaware that these two ideas are in grave conflict and by rights they should throw off the cozies and fight it out. And this would be a war to the death, since both cannot co-exist in the same mind without craziness creepin’ into the skull and reducing the occupied persona to a pile of whimpering snot.

Since having some thirty million or so folks collapse into whimpering piles of snot would be messy, unattractive and a huge drain on the psychiatric community, happily such realizations do not often happen to the Extreme Right brain. Lucky for them. Unlucky for the rest of us folks who have to contend with people WHO MAKE NO FREAKIN’ SENSE.

Case in point.

The Duck Dynasty. I won’t bore you with the history. Suffice it to say there are four relatives of some sort or other, who designed a duck caller that swept the nation and resulted in them becoming millionaires. Never heard of it? Well in fairness, it seemed to have only swept those establishments that cater to duck hunters. How that could give rise to anyone being a millionaire is beyond my comprehension, but apparently there are more nasty quacker shooters that I thought.

Any the ways, one of the relatives, the so-called patriarch of the family (such things being amusingly relevant to these types of folk), one Phil Robertson, was interviewed by GQ, a magazine you wouldn’t immediately think of when you think of duck hunters to be sure. But they did. And Phil talked his little sad brain off. And he talked about things having zero to do with duck callin’ which was a sure mistake if he had the brains to think of it.

But he talked about things he has no familiarity with, by his own admission: gay folks and Black folks. And well, he said things like this:

When asked what he thought was sinful, Robertson replied: “Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men.”

But homosexuals aren’t alone, Robertson said. “Neither the adulterers, the idolaters, the male prostitutes, the homosexual offenders, the greedy, the drunkards, the slanderers, the swindlers — they won’t inherit the kingdom of God. Don’t deceive yourself. It’s not right.”

“I never, with my eyes, saw the mistreatment of any black person. Not once,” he told GQ. “Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field. … They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’ — not a word!

“Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues,” GQ quoted Robertson as saying.

Now, A & E, the network that shows Duck Dynasty, replied by puttin’ old Phil “on leave”, claiming that Phil’s remarks are not at all in line with A & E’s corporate morality.

Well the old Extremist Right blew a teabag, screechin’ at the top of Sarah perky lungs: How DARE they do that. Why they are discriminating against Phil’s religious rights and that free speech thing too!

“Free speech is an endangered species. Those ‘intolerants’ hatin’ and taking on the Duck Dynasty patriarch for voicing his personal opinion are taking on all of us, . . .”

So, what we have here is a dilemma, at least to this brain of mine which regularly alerts me when two of my ideas collide in a nuclear explosion of contradiction.

Let me put it this way.

Ms. Palin and others of her ilk deny the right of the corporation A & E to register its moral shock at an employee of theirs by placing him on suspension, whereas the corporation Hobby Lobby is perfectly within its right to register its moral shock at employees of their by imposing a financial burden upon them. In both cases, the corporation has moral views dissimilar to the employee.

But Ms. Palin and other Extremist Right think it just terrible that corporations like Hobby Lobby should be forced to allow their insurance carrier to do what it wishes (cover contraceptive care) and demands it be stripped out of the policies because Hobby Lobby is offended by this for religious reasons.

According to the Extreme Right, the corporate sensibilities of A & E do not count, while those of Hobby Lobby do.

I can but scratch my head in confusion.

Now, that is not to say that I agree with A & E here. And that should make even the most hardened of Extreme Right folk pass out from the vapors. I’m not alone in claiming that A & E are wrong.

Phil has every right to spout his odious ideas publicly and GQ has every right to print them.  However, the proper (IMO) way for A & E to respond is to put out a statement that Mr. Robertson’s beliefs and opinions are not reflective of A & E, and in fact are contrary to their moral position. However, A & E recognizes the right of people to believe what they choose, and they will be motivated by their customers desires in watching the show or not in determining future contractual obligations with the Duck folk.

In the same vein, Hobby Lobby “corporate feelings” can be whatever they are, but they are not allowed to force them on their employees. They do not extend making their employees live under their religious strictures.

That’s the way I see it.

And you?

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What’s In a Constitution?

Tags

2nd Amendment, abortion, Constittutional interpretation, free speech, Living Constitution, originalists, strict construction

The Contrarian raised the question: “How does one oppose pharmaceutical companies being allowed to advertise on TV without violating the first amendment?”

The thing about the Contrarian is, he seldom asks easy questions. And I’ve learned to mostly not think too much about his questions, because I usually have enough of my own. But, given my legal background, an idea came to mind, and I replied:

“I think you might argue that said commercials constitute a clear and present danger to the public at large and are thus subject to regulation or prohibition.” You may or may not agree, but at least it’s plausible. I mean listening to the average list of cautions about dangerous side effects leads me at least to conclude that most drugs shouldn’t be taken unless absolutely necessary.

Yet, some folks, get ideas about diseases or afflictions and demand said drugs at great risk to their health or life. There seems always a way to get them too, even when “good” doctors refuse to prescribe. So there is danger to the public by allowing drug companies to plant notions of  disease in people’s minds. The “restless leg syndrome” comes to mind. Nobody is going to die from it, and the treatment has some might weird side effects.

But it all raised a greater issue to me, that of judicial interpretation of the Constitution. Not something that most people sit around discussing in bygone years I admit, but lately it has become a political tool of the right. Labeling every judge whose decisions you don’t like as “not a strict constructionist” makes otherwise perfectly legitimate judges look like somehow sinister and utopia crazy.

Mostly, as I’ve suggested before, the label is wildly misused. I’m not going to get into all the possible means of interpretation here. There may be more than a dozen technical ways of looking at the document, but a couple are important I think. An originalist, of which Scalia and Bork are, means that one attempts to glean what the purpose and intent of the Founders was. It attempts to determine what the original words meant to the persons who wrote them, and thus limits in a very real way an expansion into new areas. They would claim that this is the realm of amendments.

A strict constructionist claims that we are limited by the actual words. If it says, the “Congress shall make no laws,” it means precisely that. This means that there can be no limit on one’s right to “keep and bear arms,” even if the arms turn out to be a bazooka or nuclear weapon. The originalist, it would seem, should be bound to muskets and swords since those were the weaponry of the time when the document was written, but they tend to waffle so it seems.

Case in point. Washington DC had a law restricting the possession of hand guns within its corporate limits. The SCOTUS, struck down the law which had been in existence since the mid 70’s, finding that it violated the 2nd Amendment.

Now, first since the right to keep and bear arms is tied to the phrase, “a well regulated militia, being necessary to the security of a free state. .  . .” one would think, that a originalist would assume this provision was drafted to secure the rights of the state to defend itself against. . .perhaps another country trying to keep it in bondage? Like George III perhaps? Or at least a federal government gone amok?

But alas no, neither the originalists on the bench nor the “strict constructionists” were troubled by the linkage and struck down the law as violative of the right to be arms.

Now another, and I would declare better way of analysis is the Living Constitution method, whereby we recognize that after 200+ years it is unreasonable to assume that any document can reasonably cover situations encountered today. It is worse yet, impossible to believe that our Founding Fathers could have drafted any document that could be stretched to accommodate what was unknowable and probably unthinkable to them.

Thus, proponents of this interpretative method look to the general tenor of the document in all its particulars and do their best to apply those principles and ideals to new situations. When we look a the DC handgun provision in this manner, an very different result can ensue.

Life in densely populated urban areas carry its own special dangers. Crime and violence are present to a much greater degree. The prevalence of weaponry, especially that of high range and increased potency, make it dangerous for all residents, not just those who are the intended victims. Keeping weapons for “protection” often doesn’t protect anyone, and leads to errors in judgment and the deaths of innocents. It is rational for the protection of the many that people be prevented from possessing easily hidden dangerous weapons.

Therefore the 2nd Amendment is subject to reasonable regulation, and that regulation can take into account the demographics of place.  In other words what is right for Philadelphia may not be right for rural Iowa.

Similarly in Roe v. Wade, using a different kind of analysis, the Court determined that an overall examination of the amendments suggested that there was a “theme” of privacy that was being protected, and under this guise, nothing is more private than the right to do with one’s body as one wishes, within limitations.

I think that seeing the Constitution as a basic blueprint enunciating ideals and beliefs is the better way to see the document. Thus, the Court’s job is to preserve those ideals and beliefs in an ever changing world. Sometimes what was legal for decades can no longer be sustained if the ideals and beliefs are to have any meaning.

That’s the way I see it anyhow. I see the originalists and strict constructionists merely echoing “conservative” values at the expense of those ideals and beliefs. It’s akin to following tradition when the original purpose  has subsequently been subverted. It’s time to change or eliminate the tradition rather than blindly adhering to rigid rules  that no longer lead to the intended purpose.