First Amendment Archives - Page 2 of 2

Constitution Day 2015

Eliminating birthright citizenship… It implies a reckless urge to break down ancient legal principles without inquiring why those traditions existed in the first place.

Close up of the Constitution of the United States of America with quil feather pen — Close up of the Constitution of the United States of America with quill feather pen

Constitution Day is tomorrow, so I found some articles from the previous 12 months, pulling out quotes, to commemorate it. I suggest you read the whole article.

Civics For Dummies: Judicial Review
People who dislike particular court rulings often imagine that this power of judicial review wasn’t in the Founders’ original vision at all; somewhere along the line the Supreme Court just usurped it. But in fact, the Founders foresaw judicial review and approval.

How the NRA Rewrote the Second Amendment
“‘One loves to possess arms’ wrote Thomas Jefferson, the premier intellectual of his day, to George Washington on June 19, 1796.” What a find! Oops: Jefferson was not talking about guns. He was writing to Washington asking for copies of some old letters, to have handy so he could issue a rebuttal in case he got attacked for a decision he made as secretary of state. The NRA website still includes the quote. You can go online to buy a T-shirt emblazoned with Jefferson’s mangled words.

Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment
The vague word “unreasonable” in the Fourth Amendment is a lawyer’s playground, and questions about what sort of circumstances constitutionally permit law enforcement seizures have thus plagued the federal courts since the Fourth Amendment was adopted.

Arizona, the Supreme Court and the End of Gerrymandering
In the fullness of time, it all wound up in litigation, in a wrangle over the definition of the word “legislature” that eventually reached the Supreme Court. What is a “legislature,” exactly? Is it a body of elected officials? Is it a body appointed by the people to perform a specific legal purpose? Can it be both?

Nothing Is More “Conservative” Than Birthright Citizenship
Make no mistake, eliminating birthright citizenship would require an overthrow of established traditions. It implies a reckless urge to break down ancient legal principles without inquiring why those traditions existed in the first place. In short, it requires precisely the sort of thing conservatives are supposed to be against.

The Five Worst Supreme Court Justices In American History, Ranked
Even amidst this dark history, certain justices stand out as particularly mean-spirited, ideological, or unconcerned about their duty to follow the text of the Constitution.

This week in Obama political scandal

It’s the attempt by the federal government to make legal acts, or marginally illegal acts, literally a federal case.

President Obama is currently embroiled in three situations labeled as political scandal. The IRS scandal is the most problematic in that it involves a highly disliked arm of government that affects almost everyone’s lives. But I agree that the REAL scandal in the IRS issue is that there are lots of political groups on both ends of the political spectrum getting tax-exempt status, when that designation should be limited to more cultural/civic issues. Since the Citizens United ruling by the Supreme Court in 2010, there have been far more organizations of every political stripe trying to influence elections, sometimes illegally. Also, the richer applicants fell under lesser scrutiny, a real class distinction. The President has shown public indignation over this particular issue, but he may be missing the bigger picture.

The notion that the Benghazi story is bigger than Watergate and Iran contra combined suggests that the “silly season” has already begun, Bob Woodward’s assertion notwithstanding. If there are altered documents, it may be Republicans feeding them to the mainstream media. At the end of the day, the real story on the government side will be that the US was ill-prepared for an attack in a hot spot, on a significant day (9/11 in 2012) despite warnings within the Administration, that no help was available to those who died there; that’s the scandal. The “talking points” of who said what, and when? An issue will be made of this, but it seems like usual interagency jockeying, rather than malicious intent to me.

I’m much more concerned by the unethical seizure of phone records of Associated Press journalists in connection to media leaks; it’s not just that First Amendment “freedom of speech” thing; it’s a Fourth Amendment “unreasonable search and seizure” thing, which has the effect of stifling whistleblowers. It’s the attempt to make legal acts, or marginally illegal acts, literally a federal case. One saw this in the Aaron Schwartz case, huge governmental overreach. The story of the octogenarian nun in federal prison for protesting may tick you off as it did me.

The President, as noted, seems to be worked up over one of these issues, but is more defensive about the other two. I would wish he’d get more excited about trampling people’s constitutional rights, but that does not appear to be in the cards. I find his behavior disappointing, to say the least.

Still, when the I word gets thrown around, I agree with this assessment: “it would take about fifty of each of the three to collectively equal Watergate, let alone the impeachment and incarceration we should have had over Iraq.”

Another day, another mass shooting

After President Reagan was nearly assassinated in March 1981, there was a “commonsense” limit on assault weapons, but that law lapsed nearly a decade ago.

When I first heard about the mass shooting in Newtown, Connecticut, it wasn’t until about noon on Friday, December 14, a couple of hours after the horrific event. After lunch, I spent about three hours listening to the online reporting, first on NBC News, then ABC News. I figured if I kept following it, perhaps I’d discover they’d gotten it wrong. And they had – it wasn’t 18 dead children, it was 20. The wrong brother was initially named as the shooter. The basic framework, though, remained terribly the same.

Sometimes, when people don’t like a piece of entertainment, they’ll say, “I threw up a little in my mouth.” A crude reference, I think. But, following this story, I literally DID.

My sorrow over the particulars of the story was made worse by the inevitable statements that we need to have a national “conversation” about gun control and mental health. Except that, for some, it’s not the right time; apparently, it’s NEVER the right time, because we’re always reeling from the last event. Rep. Jerrold Nadler of New York said, correctly, “If now is not the time to have a serious discussion about gun control and the epidemic of gun violence plaguing our society, I don’t know when is.”

After President Reagan was nearly assassinated in March 1981, there was a “commonsense” limit on assault weapons, but that law lapsed nearly a decade ago. Even before then, we’ve ALWAYS been having “conversations” about these things; we TALKED after the 1999 Columbine, high school shootings in Colorado, and the 2007 Virginia Tech shootings, and the Arizona shootings last year, and the Aurora, Colorado movie theater shooters this past summer.

The “conversation” after this latest event thus far is more of the same. Why are mass shootings becoming more common? Some say we should have MORE people carrying guns. Yeah, right, against a guy in a movie theater wearing body armor packing heat, in a dark theater, with smoke bombs; heard THAT argument rehashed Friday night on CNN. At least I didn’t hear anyone suggesting five-year-olds should be packing heat.

More noise: Mike Huckabee uselessly telling us that school “carnage” caused by having “removed God” from schools. Ultimately, I think the Onion got it right.

Here’s my position: the Second Amendment right to bear arms is no more absolute than the First Amendment right to free speech. One cannot yell “fire” into a crowded building; one ought not be able to fire into a crowded building.

I’m done talking about it. If we don’t DO something, I don’t want to listen to more of the same rhetoric when this happens the next time. And there WILL be a next time, with the number of guns in this country.

The one thing I’m still mulling over: how to tell my elementary school-age daughter. She’ll surely find out from her friends. I don’t want her to be afraid to go to school. How do I make her feel safe, even though I can’t promise her it couldn’t happen again?
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Newtown shooting: Names, profiles of the 27 people killed.

Happy memories of Newtown, from the town children’s librarian from 1994-1996.

Mocking Religion

Not all speech is protected by the First Amendment. Is this merely art? Or is this yelling “fire” in a crowded movie theater, where the consequences of one’s action, chaos, was foreseeable?

The question on Facebook the other day, I’m only mildly paraphrasing: “Should the US government be condemning a movie” – we know which movie, I think – “to improve diplomatic relations?” For me, it’s an unequivocal “yes.” Not that the audience of Secretary of State Hillary Clinton’s denunciation really cares. They seem to be of the opinion that the United States should arrest the filmmakers, or worse.

This leads me to all sorts of further questions. Should a government official comment on art at all? I use the term “art” loosely. In 1992, Dan Quayle, then the Vice-President, complained that TV character, Murphy Brown, deliberately had a child out of wedlock. Should he have been allowed to do that? Indeed, there are devotees who believe Quayle was right. I say yes, he should have said it, though I disagreed with him.

(When controversial art is paid for, in part or in toto, with public money, that becomes a whole new level of controversy.)

Should the Innocence of Muslims filmmaker be arrested? The film trailer is certainly crude and vile, and misleading even to some of the actors in the film, who swear Mohammed wasn’t even mentioned by name in the copies of the script THEY read. Seems as though some sort of fraud has taken place, but I’m not a lawyer.

Not all speech is protected by the First Amendment. Is this merely art? Or is this yelling “fire” in a crowded movie theater, where the consequences of one’s action, chaos, was foreseeable? The Supreme Court case Brandenburg v. Ohio (1969) allows proscribing “speech” if it will incite imminent lawless action, such as riots. It would SEEM that the Danish cartoon situation of a half-decade ago would suggest that the film would be received badly. But could the filmmakers have foreseen such a violent outcome? Don’t know.

In any case, Nakoula Basseley Nakoula, the alleged filmmaker, who was convicted of bank fraud, could go back to jail because the terms of his release stipulated that he be barred from accessing the Internet or assuming aliases without the approval of his probation officer.

Should the sensitivities of religious folks be taken into consideration? I remember the uproar over the Monty Python comedy Life of Brian (1979) and Martin Scorsese The Last Temptation of Christ (1988), directed by Martin Scorcese (1988), not to mention Mel Gibson’s The Passion of the Christ (2004). All appear on a list of The 50 most controversial movies ever, at #14, #1, and #20, respectively. I’ve only seen Brian, which I personally found uproariously funny, not to mention clearly NOT speaking about Jesus. Didn’t see the other two, but I think people, including politicians, can express their dismay without banning them outright.

And not so incidentally, I think artists should be able to make political statements, whether it be Barbra Streisand or Toby Keith. If people are annoyed by them and decide not to buy their albums, see their films, etc., that’s the way the marketplace works.

If this is more rambling than usual, blame Facebook.

Blood, music, SCOTUS

I got a big chuckle out of my daughter vigorously singing the chorus to a Phil Ochs song.

I’ve now donated blood 149 times. The only two times I’ve ever had difficulty were time #59, obviously several years ago, and time #148, in April 2012. The commonality was that I was sitting in a chair each time, rather than lying down. The April visit was brutal, with three different attendants manipulating my arm, the needle…it took well over 20 minutes when it generally takes me 6 or 7; I’m talking about the actual blood flow time, not the preliminary exam, et al. I was so exhausted and bruised afterward, that I went home and went to bed, instead of going to choir, which had been my intent.

So when I went again last week – getting “back on the horse,” as it were – I made sure I went to a place (Empire State Plaza, for you locals) that had cots.

Sure enough, 7 minutes and 6 seconds, and I’m done. The medical person helping me this time insisted that lying down is better for the blood flow, and easier for recovery, but that people prefer the chairs because they are more comfortable. She also noted that 5 to 8 minutes is optimal; some guy who bragged about being able to donate in 4 minutes would be in serious trouble if HE were ever in a serious accident.
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For Father’s Day, my wife gave me a ticket to the Old Songs Festival at the Altamont Fairgrounds, about a half-hour from here. When I was younger, I went all the time, but I think the last time I attended was in 2002, the year my wife went to Ukraine. She did not go with me this time either because of church obligations; she is on the Administration Committee and is helping sort through over 100 resumes for a part-time church secretary.

But the Daughter went with me on Saturday, June 23. We spent the first hour trying to wash sunscreen out of her eye, but eventually, we could enjoy the program. Went to see a couple called Magpie, and another couple, Kim and Reggie Harris perform songs of Phil Ochs, the noted folk singer who died over 35 years ago. Sunny Ochs, Phil’s sister, was there, too, and she has long encouraged singers of Phil’s songs to change the lyrics to more contemporary references when necessary. I knew LOTS of the songs, but I got a big chuckle out of my daughter vigorously singing the chorus to Love Me, I’m a Liberal, one of those songs with changed verses. (No one knows who the late talk show host Les Crane was anymore.)

Then we went to the Songs of the African diaspora with Peace Train, a black woman and a white woman from South Africa, assisted by Kim and Reggie Harris, who had come from about as far on the fairgrounds as one can. Kim noted that the girl who was sitting in front at this show (yes, the Daughter) was dancing at the Ochs show (true) and that Kim wishes she had that kind of energy.

The last Sunday in June, the whole family attended a high school graduation party. Ever have a really good friend you lose touch with, even though they aren’t that far away? That was the case with my friend Debbie, the mother of the graduate, who was one of my very best friends in the 1980s, but who I’ve talked with only intermittently since. It was good to see her again, though she was so busy playing hostess that we didn’t talk much. Maybe next time…

So what did you think of that Supreme Court ruling last Thursday? Oh, not that health care thing, the decision that the Stolen Valor Act is unconstitutional. “The Stolen Valor Act…makes it a federal crime to lie about having received a military decoration or medal, punishable by up to a year in prison if the offense involved the military’s highest honors.” I support the ruling that the law was unconstitutional on First Amendment/freedom of speech grounds with the same biting-of-the-lip sensation that had when I agreed with the Court allowing Nazis to demonstrate in Skokie, IL. I support the principle more than I hate the action.

As for that OTHER case, I had taken a “Well, it’s better than the status quo” take on that 2010 health care bill, the Affordable Care Act. But with the meltdown by its opponents, I am enjoying its affirmation by the Supreme Court far more than I expected. Meanwhile, CNN should slink off in shame for reporting, for seven minutes, the absolute wrong outcome. (FOX News also muffed it for two minutes, but it HAS no shame.) The term “Obamacare” had been designed as a dis, but that putdown may now work in the President’s favor.