Free Speech Under Fire
Pre-script: A professor dares to criticize the NRA, and gets censured for it.
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“There’s just way too much money in politics,” said a candidate for governor earlier this month. Since the candidate was Terry McAuliffe, a political fundraiser of Brobdingnagian proportions, the remark could go down as the funniest line from this year’s contest.
McAuliffe had just been asked if he would support campaign-finance reform, so he may simply have been pandering to his audience. Unfortunately, many others who have said much the same mean every word of it. That spells bad news for ordinary citizens like Edmund Corsi.
Corsi lives in Geauga County, Ohio, where he strives to be a burr under the saddle of public officials who disregard the Constitution, which to Corsi means most of them. So a few years ago he started a blog (why should he be different?) and got together with a couple of like-minded folks. The called themselves the Geauga Constitutional Council.
One day Corsi was handing out pamphlets at a county fair. One of the people who took a flyer was Ed Ryder, a Republican and a member of the local Board of Elections. Corsi didn’t have much nice to say about Ryder. So Ryder did what any petty Napoleon would do: He went after Corsi using Ohio’s campaign-finance laws.
Long story short: Because Corsi spent money, no matter how little (his website cost all of $40), the Ohio Election Commission said Corsi should have incorporated his group and registered with the state as a political action committee — hiring a lawyer to help with the “very complicated” process. As far as Ohio is concerned a political action committee can consist of as few as two people. Besides, Corsi engaged in “express advocacy” about politicians. The horror.
Two courts have ruled in the commission’s favor. The Center for Competitive Politics, which is based in Arlington, has asked the Supreme Court to hear Corsi’s case. Let’s hope the justices agree to do so, because the Corsi case epitomizes a growing problem: the censoring of free speech through back-door regulation.
That was precisely the problem at issue in the scandal over the IRS’ treatment of tea-party groups: Organizations with certain political views were singled out for special scrutiny — their applications sidetracked, their activities probed, their members’ reading habits and religious practices investigated — at the behest of government officials such as Sens. Chuck Schumer and Al Franken. (A few progressive groups got caught up in the sweep. But like dolphins caught in tuna nets, they were not the intended target.)
Don’t let the IRS scandal lead you to believe shutting up political opponents is something only Democrats do, however. Just look at Wisconsin, where progressive foes of Republican Gov. Scott Walker have been holding “Solidarity Sing-Alongs” at the state capital ever since Walker signed anti-union legislation. NPR reports that “earlier this summer, the Walker administration apparently grew tired of the protests and ordered Capitol police to start arresting people.”
NPR says more than 300 protesters have been booked since “a federal judge ruled that groups with more than 20 participants must get a permit.” To that, retiree Ron Edwards offers this riposte: “We won’t get a permit because the First Amendment is our permit.”
In Norfolk, city officials who were trying to take Bob Wilson’s property through condemnation didn’t like the sign he put up protesting “eminent domain abuse.” So they threatened him with fines of $1,000 a day for improper signage. Officials in St. Louis pulled the same stunt on landlord Jim Roos, who put up a similar sign. When the city told him he needed a permit, he applied for one. The city turned him down. Last week in California, Modesto Junior College told a student he could not hand out copies of the Constitution — on Constitution Day.
In Minneapolis, officials wanted to stop Brian Johnson from handing out Bibles at a gay-pride festival (a festival organizer claimed that would cause “congestion”). A federal court agreed, but recently was reversed on appeal. And Minnesota state officials do not want to silence just Bible-thumpers: They want to silence everyone in the vicinity of a polling booth.
Minnesota law makes it a misdemeanor to wear any “political badge, political button, or other political insignia” to the polls. In 2010, a number of Minnesotans fell afoul of that rule. The Rutherford Institute, based in Charlottesville, and the D.C.-based Cato Institute have filed a brief asking the Supreme Court to hear their case.
The two organizations contend such passive political activity is protected by the First Amendment. Minnesota contends that it threatens the “integrity” of elections. In that regard, the Land of 10,000 Lakes has much company. Nothing is so threatening to the democratic process, the governing class seems to think, than letting ordinary citizens think they can run the show.
Court Makes Country Safe for Facebook
"Like" as much as you like — The Fourth Circuit says it’s your constitutional right:
“Liking” something on Facebook is a form of speech protected by the First Amendment, a federal appeals court ruled Wednesday, reviving a closely watched case over the extent to which the Constitution shields what we do online.
In doing so, the Fourth U.S. Circuit Court of Appeals sided with a former deputy sheriff in Hampton, Va., who said he was sacked for “liking” the Facebook page of a man running against his boss for city sheriff.
“Liking” the campaign page, the court said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
Here’s something I like: Regardless of their ideological bent, courts across the country remain staunchly pro-speech. The Fourth Circuit has moved to the left in recent years, and the Supreme Court has moved to the right, but both keep standing up for the First Amendment.
'Scuse me while I go wave my American flag.
You Are Being Watched
During a visit to Richmond on Monday, his third day as FBI director, Jim Comey welcomed the current debate over the reach of government surveillance. “The pendulum swings back and forth” between liberty and security, he said. America benefits when those with differing views on the issue “bang it out.” Comey, whose modesty is proportional to his height (6 feet 8 inches ), did not remind those present of his own role in pushing the pendulum back toward the civil-liberties end of its arc during a now-famous showdown at the hospital bedside of former Attorney General John Ashcroft.
But Comey added that he didn’t always find the liberty-versus-security dichotomy helpful. Sometimes security and liberty move in tandem, he said. He offered the illustration of a police officer on a playground whose presence makes everyone in the vicinity feel both more secure and more free.
It’s a fair point. Yet if that were all there were to the matter, then the current debate would seem wildly overblown. Is it? Clearly not: Many serious, intelligent people find the recent revelations about domestic spying highly unsettling. Why is that?
Go back to Comey’s playground illustration. His point about liberty and security moving in tandem holds true — but it can cut both ways.
Suppose the police officer is not simply standing on the playground, warding off potential malefactors. Suppose he is also watching you: following you around, making notes, videotaping you, whispering into his microphone. Would you feel more secure then, or less?
Suppose the officer also tails you home. Suppose he follows you into your house and begins poking around in your closets, reading your mail, copying the contents of your computer’s hard drive, and taking notes about your dinner-table conversation with your spouse. Would you feel more at liberty, or less?
Just about anyone would find this highly unsettling. He or she would feel both insecure and inhibited: simultaneously less secure and less free. And that is how many people feel about the alarming expansion of government surveillance. It is, indeed, something the founders understood when they wrote the Fourth Amendment, guaranteeing the “right” — the liberty right — of the people to be “secure” from unreasonable searches by government authorities. The Fourth Amendment treats security as a component of liberty, not its opposite.
Among other things, the founders were concerned about “general warrants” — which allowed officials to search a person’s home and papers at whim. The founders insisted that warrants be issued only for “cause,” and that they must describe “the place to be searched, and the persons or things to be seized.” But the NSA’s vacuuming up of millions of Americans’ telephone records cannot be justified by any particular cause. Rather than develop a suspicion and follow it up with a particularized search, the NSA’s metadata program conducts a general search first, and then examines the results for reasons to suspect someone in particular.
And the NSA’s metadata program is just one among a rapidly proliferating population of surveillance programs. Through another program, the agency also has access to roughly 75 percent of Internet traffic. For the past six years, the FBI has been building a $1 billion database of physical characteristics, from iris scans to palm prints. The Labor Department maintains a nationwide registry of new hires; states use it to track down deadbeat parents. The Department of Homeland Security has compiled data on credit card transactions, rental car information, and email contacts. Border agents are empowered to search, without a warrant or even suspicion, everything from laptop computer files to “pocket litter.” (The federal government defines the “border” for this purpose as 100 miles wide; that covers 197 million U.S. citizens.)
Across the country, police departments are amassing records of Americans’ ordinary movements through the use of automated license-plate readers. Twenty-seven states are using facial-recognition technology to match surveillance footage with DMV mug shots. Just recently, a federal court ruled police departments did not need a warrant to obtain your cellphone records.
These are just a few of the ways government is keeping tabs on Americans, and there are more coming down the pike — from the insurance-reporting requirements of Obamacare to the proposal that all Americans carry biometric ID cards to improve immigration enforcement.
Supporters of all this government surveillance sometimes say that “if you have nothing to hide, you have nothing to fear.” The fallacy inherent in that statement entails its assuming people want privacy only to hide what is incriminating. But privacy is about much more than dirty little secrets. There is nothing incriminating about a prostate exam or gynecology checkup, for instance — but few people would want to have one on live TV. Some things are simply nobody else’s business.
Increasingly, however, government acts as though nearly everything is its business — from your phone calls to your driving habits. And that’s what has people so concerned. Americans don’t mind the cop on the playground. It’s the one camping out in their living room that worries them.
How the Right Learned to Love Gun Control
Conservatives took a break last week from their sensible skepticism toward big government in order to embrace the liberal logic of gun control. That logic is familiar to anyone who has ever spent much time kibitzing the gun debate, and it goes like this: Government should infringe on, or even abrogate, the rights of millions of law-abiding people in order to stop a minuscule fraction who use guns to commit mayhem.
Whether gun-control laws actually produce the desired results is a matter of great dispute. But liberals will happily cherry-pick the data that best make their case. (Why should they be any different?) They will then argue as The New York Times did in 2010, when it denounced a Supreme Court ruling upholding gun rights: “The arguments that led to Monday’s decision,” the newspaper intoned, “were infuriatingly abstract, but the results will be all too real and bloody.”
Translation: Don’t give us any of that airy nonsense about rights. People’s lives are on the line here. This, in essence, was how conservatives reacted last week when a federal judge said New York’s stop-and-frisk tactics were unconstitutional.
Stop-and-frisk was “a policy that has saved thousands of black lives,” wrote noted civil-rights icon Ann Coulter. The Wall Street Journal agreed: “If the judge’s ruling isn’t overturned, the victims won’t be in the tony precincts (but) in the barrios and housing projects.” Channeling The Times, Daniel Henninger of The Journal griped that “when liberals weigh the reality of physical threat … against hyper-abstract interpretations of constitutional rights, abstraction wins.”
According to National Review, “intelligent police work” had “reversed what seemed 20 years ago to be an inescapable descent into lawlessness, indecency, and chaos.” Writing in City Journal, Heather Mac Donald concurred: “New York’s 20-year reprieve from debilitating violence may well be over.” She fretted the ruling could “signal the end of the freedom from fear that New York’s most vulnerable residents have enjoyed.” In Commentary, Seth Mandel depicted stop-and-frisk as a “fight to keep the city’s minority neighborhoods safe.”
And, sure, that might be the intent. But then you can claim all sorts of policies will keep a city safe, including a total ban on firearms and surprise house-to-house searches for drugs. If the ends justify the means, then you can do just about anything you want. Conservatives usually like to think they’re a little more high-minded than that.
The other trouble with such consequentialist rationales is that they depend on producing the right consequences. So naturally, conservatives simply assume stop-and-frisk deserves the lion’s share of the credit for New York’s falling crime rate. But crime has fallen steeply across the country — including in many places that did not employ stop-and-frisk.
What’s more, conservatives seem to have forgotten their own prior explanation for the Big Apple’s progress: the broken-windows theory. That theory, popularized by the late James Q. Wilson, posited that tolerating minor crime such as turnstile-jumping and vandalism created an atmosphere major crime found inviting. To discourage major crime, therefore, crack down on petty crime. You can read volumes on how “James Q. Wilson’s thinking about crime and policing saved lives and transformed cities for the better” in the City Journal article “Man of Reason” (by Heather Mac Donald) — and several others just like it.
Mac Donald now defends stop-and-frisk by pointing out blacks and Hispanics are the primary perpetrators of violent crime in New York — so it only stands to reason that they should be the primary targets of stopping and frisking. This epitomizes the racial-profiling fallacy you also see in the debate over Muslims and terrorism.
It’s undeniably true that Muslims have committed most of the terrorist attacks against the U.S. in the past couple of decades. But this does not justify viewing all Muslims with suspicion, because while there have been only a handful of attacks, there are something like 1.6 billion Muslims. The odds that any one of them is a terrorist are, therefore, vanishingly small. (Not surprisingly, the same NYPD that carries out stop-and-frisk got into hot water a couple years ago for infiltrating mosques and other Islamic institutions.)
By the same token, just because most perpetrators in New York are black or Hispanic does not mean most blacks or Hispanics are perpetrators. After all, most homicides are committed with guns — but that does not mean most gun owners commit homicide.
The NYPD’s defenders also contend the police did not stop and frisk minorities at random; they stopped those who acted suspiciously. This is true only if you consider perfectly normal behavior suspicious. Judge Shira Scheindlin found, for instance, that (as a news account put it) “officers sometimes stopped people on the grounds that the officer observed a bulge in the person’s pocket; often it turned out that the bulge was caused not by a gun but by a wallet.” Other causes for suspicion: “being fidgety” and “walking in a certain way.” That sounds ironclad, doesn’t it?
In fact, stop-and-frisk is not a tremendous success but a tremendous failure, because such stops turn up contraband only 2 percent of the time. In other words: 98 times out of 100 the officer’s suspicion is unjustified.
If any other program had a 98 percent failure rate, conservatives would hold it up as a shining example of everything that’s wrong with big government. That they’re so eager to defend a failing program when it happens to target minorities makes their professed concern for “the most vulnerable” ring a trifle hollow.
Chris Christie Pulls a Maureen Dowd
Back in 2005, a woman named Cindy Sheehan was camping outside President George W. Bush’s ranch in Crawford, Texas. Sheehan’s son Casey had died in the Iraq War that Bush had started, and Sheehan’s vigil turned her into a heroine for many of the war’s opponents, including Dowd. “The moral authority of parents who bury children killed in Iraq,” wrote the New York Times columnist, “is absolute.”
Unfortunately for Dowd, other parents also had lost children in Iraq, and some of them stepped forward to say they still continued to support the war, which had a rather complicating effect on Dowd’s overall point. But that is a logical consideration, and Dowd was not trying to make any logical arguments. She was trying to overwhelm them with sentiment.
Christie, the Republican governor of New Jersey, did the same last week when he tore into civil libertarians concerned about domestic spying. The House had then just finished debating legislation sponsored by libertarian Republican Rep. Justin Amash to rein in the National Security Agency. Speaking “as a former prosecutor who was appointed by President George W. Bush on Sept. 10, 2001,” Christie said he wanted “us to be really cautious, because this strain of libertarianism that’s going through parties right now and making big headlines I think is a very dangerous thought.”
Dismissing those holding “these esoteric, intellectual debates,” he continued: “I want them to come to New Jersey and sit across from the widows and the orphans and have that conversation. And they won’t, because that’s a much tougher conversation to have.”
In one regard, Christie is right: It certainly is hard to tell someone who lost a loved one on 9/11 that the government should refrain from taking any step that conceivably might prevent a future attack. It is hard because doing so could add to their pain, and people of good will do not want to make anyone’s suffering worse.
But in another more important regard, Christie is wrong — as Christie’s own behavior should demonstrate.
Example: Back in February, Christie signed an executive order loosening restrictions on alcohol sales. (The order lets establishments that have seasonal licenses to sell booze start doing so two months earlier.) No doubt he had good reasons, such as helping businesses recover from the economic hit of Hurricane Sandy.
On the other hand, according to the Centers for Disease Control alcohol annually causes 75,000 premature deaths in the United States — which is 25 times the death toll of 9/11. Would Christie be willing to sit down with the widows and orphans of drunk-driving victims, or of alcoholics who slowly drank themselves to death, and explain why he is making it easier for people to drink? That would be a tough conversation to have. But it would not make Christie wrong on the merits.
Here’s another: Last month Christie, a critic of Obamacare, vetoed a bill to make the expansion of Medicaid in New Jersey permanent. Would he sit down with the widows and orphans of people who died from a lack of affordable health care and explain his “esoteric, intellectual” rationale for the veto? That would be tough, too. But it would not, ipso facto, make him wrong.
Christie has been more open to gun control than other Republicans, but he does not support a total ban on all private firearms. Would he tell the widows and orphans of gun violence why? Christie does not support putting armed guards in schools to prevent mass shootings. Would he explain why to the grieving parents of Newtown, Conn.?
Government exists to protect all people’s rights, not some people’s feelings. A country in which the government can, in the name of national security, invade any home or arrest any person, with no explanation and no appeal, might be secure from foreign invasion. But its people are not safe — they are simply threatened by a different menace.
For all their intensity, emotions simply do not provide a good basis for settling disputes. They do not tell us whether a proposed remedy might actually work; or, if it works, whether it would do more harm than good; or whether some other remedy might cost less and work better. They do not tell us what is right, and what is wrong. Raw pain should command our sympathies. But it should not overwhelm our senses.
Influential Liberal Magazine Calls for Impeachment of the President
A President, any President, who maintains that he is above the law—and repeatedly violates the law—thereby commits high crimes and misdemeanors, the constitutional standard for impeachment and removal from office. A high crime or misdemeanor is an archaic term that means a serious abuse of power, whether or not it is also a crime, that endangers our constitutional system of government.
The framers of our Constitution feared executive power run amok and provided the remedy of impeachment to protect against it. While impeachment is a last resort, and must never be lightly undertaken (a principle ignored during the proceedings against President Bill Clinton), neither can Congress shirk its responsibility to use that tool to safeguard our democracy. No President can be permitted to commit high crimes and misdemeanors with impunity.
While many facts about these wiretaps are unknown, it now appears that thousands of calls were monitored and that the information obtained may have been widely circulated among federal agencies. It also appears that a number of government officials considered the warrantless wiretaps of dubious legality. Reportedly, several people in the National Security Agency refused to participate in them, and a deputy attorney general even declined to sign off on some aspects of these wiretaps. The special FISA court has raised concerns as well, and a judge on that court has resigned, apparently in protest.
Of course, there’s one minor detail missing here. But you’ll have to follow the link to see what it is.