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First Amendment Archive

Tuesday

30

June 2015

0

COMMENTS

Don’t Cry Wolf on Religious Liberty Infringements

Written by , Posted in Culture & Society, Liberty & Limited Government

Respect for religious freedom has deep roots in American society. Many of those who came to America did so to escape religious persecution, and they brought with them a profound understanding of the importance of protecting such personal rights from oppressive rule, be it by the hand of monarchy or democratic majority. Thus why Constitutional protections for religious freedom were included in the First Amendment.

Yet many areas where religious freedom is said to be under attack are actually examples of a different sort of problem. No one should be forced to make a gay wedding cake, for instance, simply because they make their living as a baker (assuming they are their own employer). The idea that one must sell to all in order to sell to any contradicts basic Constitutional tenets, yet is an idea that has wormed its way into Constitutional doctrine thanks to the misguided idea of “public accommodations” in non-discrimination law, and long eviscerated protections for economic liberty. Focusing on the subset of cases where objections are made on the grounds of religious sensibilities misses the larger issue, which is that the freedom of association and basic liberty should allow all the right to choose with whom they do or do not engage in commercial exchange – for any reason, be it religiously motivated or not, that the individual sees fit.

But there are also ways in which religious freedoms are actually in danger of being undermined today. Under the direction of Houston’s first openly gay mayor, Annise Parker, the city last year subpoenaed sermons and other pastoral communication from local churches. They were ordered to turn over any communication relating to a contentious local non-discrimination law, as well as “all speeches and sermons related to Mayor Annise Parker, homosexuality and gender identity.” She backed down after national uproar over the flagrant abuse of power, but the episode is both illuminating and disturbing.

Religious concerns from the fallout of Obergefell are also not without merit, as admitted by U.S. Solicitor General Donald Verrili when he acknowledged during oral arguments that tax-exempt status “is going to be an issue” with the Court’s potential (and now real) ruling that the exclusion of same-sex couples from marriage (rightly) violates Constitutional protections. The ACLU has also decided that it’s no longer on board with the whole religious freedom thing now that Christians might be the ones in need of legal protections. And given the proven vindictiveness of today’s cultural winners, more attacks ought to be expected.

Which is all the more reason why it’s a shame that some Republicans, along with the Texas Attorney General, are insisting that county clerks in Texas or elsewhere ought to be able to be able to “opt out” of issuing same-sex marriage licenses if they have religious objections. This is a misapplication of religious liberty.

Look, we’re not talking about clergy or non-state wedding officiators here, who like bakers ought to be able to decide whether they wish to take part in a same-sex wedding or not. These are people whose job it is to process paperwork and issue wedding licenses. County Clerks are municipal employees, be they elected or appointed, and therefore agents of the state. And agents of the state don’t get to dictate actions of the state based on personal whims. If they won’t or can’t do the job required of them and fulfill their duties as public servants then they ought to resign.

Individuals have every right to not work at a place that requires issuing same-sex marriage licenses, but what they don’t have is the right to insist that they not be replaced by someone who will do the entire job and not just part of it. Anyone with true convictions should understand that sometimes upholding those beliefs means making sacrifices, including not working at places that as a fundamental part of the job necessitate violating those beliefs.

There are real threats to religious freedoms, and those who might wish to meet those threats with robust Constitutional protections shouldn’t try to expand the concept to its breaking point. I’m sure it’s not easy to have to choose between honoring ones principles or performing a duty that one currently under obligation to perform, but there’s no Constitutional right to not have to make tough choices.

Friday

20

December 2013

0

COMMENTS

A&E/Duck Dynasty Fight Demonstrates How the Marketplace of Ideas Has Devolved

Written by , Posted in Culture & Society

In perhaps one of the most boneheaded business decisions ever made, A&E decided to sabotage its rating juggernaut, Duck Dynasty, in a fit of PC rage over comments from Phil Robertson about homosexuality in an article by GQ. Robertson, in a manner one might expect from a plainspoken outdoorsman from Louisiana, rather crudely expressed his personal inability to relate to same sex attraction through comparison of the various sexual organs involved. While both logically unconvincing of anything and potentially distasteful to the prudish, the statement hardly represented an attack on anyone.

He also he expressed the rather orthodox Christian view that homosexuality is a sin. More specifically, he listed homosexuality among a host of other sins he sees as plaguing the nation, but since adulterers have no grievance group, homosexuality is the only one we’ve heard a big stink about. He also prefaced the discussion with this:

“You put in your article that the Robertson family really believes strongly that if the human race loved each other and they loved God, we would just be better off. We ought to just be repentant, turn to God, and let’s get on with it, and everything will turn around.”

And then he followed up with:

“We never, ever judge someone on who’s going to heaven, hell. That’s the Almighty’s job.”

And in a separate statement he added:

“However, I would never treat anyone with disrespect just because they are different from me. We are all created by the Almighty and like Him, I love all of humanity. We would all be better off if we loved God and loved each other.”

How bigoted and closed-minded of him. Oh wait, no, I’m confusing him with those who think silencing others is the best response to hearing anything disagreeable.

I don’t bring up Phil Robertson’s views because I necessarily share them. Some I do and some I don’t, but I’m not starting with the same set of principles as Phil Robertson, so I frequently reach different conclusions. What I did want to talk about, however, was the entirely inappropriate response to his expression from both sides.

First, the attacks on Phil Robertson seem to align with a troubling trend regarding the manner in which the modern left is engaging in political discourse. Which is to say, they aren’t. Rather than debate opponents, they ostracize them. They turn any expression of opposing views into de facto evidence of some moral deficiency (or, if they’re in academia, into evidence of a mental disorder) on part of the speaker that absolves anyone else of the need to hear, process or think critically about what they have to say. Even the mere act of organizing to express views and advance common interests is evidence of some nefarious conspiracy or shady behavior.

These are sad developments for American political discourse that undermine the functioning of our republican system. But the response from the right doesn’t always hit the mark, either.

In defending Phil Robertson from A&E’s boneheaded decision, some – including politicians like Sarah Palin and Bobby Jindal – have cited the First Amendment. This is a red herring that serves only to confuse the issue. The First Amendment protects the right of the people to speak without infringement by government. It says nothing of how other private citizens can respond to speech. If anything, the First Amendment is firmly on A&E’s side, as it protects the right of association, which includes the right to not associate, at their pleasure.

Unfortunately, the right of association is not universally supported by either the courts or the left, which while cheering A&E’s self-destructive overreaction, also oppose the right of other businesses to choose their own clientèle, so long as those clientèle belong to a PC-approved victim group (hint: that excludes Christians). Nevertheless, it is the freedom to associate that matters here. A&E ought to be able to fire whomever they please to advance the chosen vision of their brand.

Part of the problem is linguistic. “Free speech” has evolved to refer to more than just the First Amendment right to speak without government interference, but also the general public desire to encourage a marketplace of ideas through respect for different points of view. Some of then erroneously used the First Amendment as a stand-in for the latter definition of “free speech,” when it really only applies to the former. Thus confusion is unfortunate, as it undermines their case.

Dragging the First Amendment into the discussion of A&E decision to punish Phil Robertson for expressing a widely held religious view that singled out no person or group of people for proposed harm allows those who freely cheer the silencing of opponents to correctly point out that the government did not silence Robertson (indeed, no one did), and therefore A&E is in the right. But that’s not the issue. The issue should be our troubling and growing acceptance of a culture of intimidation that not only seeks to shout down those who utter views not considered politically correct, but which actively seeks to bring them personal harm in retaliation.

The First Amendment itself may not be implicated by A&E’s suspension of Robertson, or with the groups which frequently call for similar responses in other cases, but the principles and desire to promote a healthy and robust civic and political culture which led to the amendment’s inclusion in the Bill of Rights are at the very center of the matter.

Tuesday

26

June 2012

0

COMMENTS

Technology Does Not Invalidate Free Speech

Written by , Posted in Big Government, The Nanny State & A Regulated Society

In a good piece at Big Government, Seton Motley highlights a recent effort by Obama administration advisor Tim Wu to expand the reach of government by arguing that the first amendment doesn’t apply to computers.

Wu’s argument is basically that computers are not people, therefore the First Amendment does not apply to anything they do.

In today’s world, we have delegated many of our daily decisions to computers. On the drive to work, a GPS device suggests the best route; at your desk, Microsoft Word guesses at your misspellings, and Facebook recommends new friends.

In the past few years, the suggestion has been made that when computers make such choices they are “speaking,” and enjoy the protections of the First Amendment.

This is a bad idea that threatens the government’s ability to oversee companies and protect consumers…

No, this is a good idea that prevents the government’s ability to infringe upon liberty. To say that computers don’t speak is as insightful as saying that paintings don’t speak, or ink doesn’t speak. In other words, it’s stupid.

Computers are tools. Like books, paintings, billboards, newspapers, etc. etc., they are a tool that can serve as a medium for speech. And just as the paint on the brush goes only where the painter tells it, the computer does ultimately what a real, breathing person programs it to do. How is the result, then, not the programmers speech?

Tim Wu is right. The First Amendment is an obstacle to expanded government regulation in control. It is one of the last obstacles remaining, which is why Tim Wu is just one of many on the left seeking to knock it down.

Tuesday

6

March 2012

2

COMMENTS

“Go to hell Barack.”

Written by , Posted in Big Government, Health Care, Welfare & Entitlements

Thus concludes an advertisement currently running in the DC metro system.

The horror!

Naturally, the perpetually outraged are full of…well, outrage. Rep. Moran is throwing a conniption, while Metro manager Richard Sarles is not only “deeply offended,” but finds it “unfortunate” that the language in the ad is not recognized as an exemption to the First Amendment. You see, Metro is a state sponsored enterprise, and as such can’t go around rejecting political advertisements just because someone’s panties got twisted.

In fact, I’m rather tickled by the whole situation. We have here a government run transportation system known for its absolutely awful service that is whining about having to run an ad against a soon-to-be government run health care system.

Wednesday

27

July 2011

0

COMMENTS

This is Why We Have a First Amendment

Written by , Posted in Big Government

If you’re from Gould, Arkansas, the first amendment no longer applies. You must seek permission from the City Council before associating with any of your neighbors in an organized fashion. No doubt they will expect kick-backs and favors in return for their generosity should you seek such permission.

Be careful before starting a Boy Scout troop in Gould, Ark. Or a Harry Potter fan club. Or a baseball team.’

The City Council adopted an ordinance last week making it illegal to form any kind of group without its permission.

That is a clear violation of the Constitution, legal scholars agree. But it is also a sign of just how nasty politics has gotten in Gould, a farming town of 1,100 some 70 miles southeast of Little Rock, where members of the Council have struggled with a local political group that seeks to influence how the town is governed. The mayor, Earnest Nash Jr., also happens to be a member of the political group, the Gould Citizens Advisory Council.

…The advisory council, which calls itself a nonpartisan group that educates voters and raises money for public causes, says it will continue its work. But the Council, in one ordinance, accused the group of “causing confusion and discourse among the citizens” by harshly criticizing local officials at public meetings.

As a result, the City Council said, “No new organizations shall be allowed to exist in the City of Gould without approval from a majority of the City Council.”

The peasants were criticizing their overlords? How uncouth.

Thursday

16

September 2010

0

COMMENTS

Another IJ Challenge To Licensing Laws

Written by , Posted in The Nanny State & A Regulated Society

The Institute for Justice does a great job challenging licensing laws, which are an illegal interference on the part of the government on a person’s right to earn a living in the profession of their choice, and the right of citizens to utilize the services of anyone they judge to be competent.

Their latest work involves a couple in D.C. who are prohibited by law from giving tours of the city because they do not have a license.

As I probably made clear already, I support the elimination of all such laws. But I do have one slight quibble with this case.  The video gives the impression that IJ is arguing this case on first amendment grounds (I haven’t looked into it to confirm).  On the one hand, I understand perfectly this choice from a legal point of view.  It likely gives them the strongest chance of success.  But I can’t shake my concern at the impression it gives to viewers.  Specifically, that it’s ok for government to protect business cartels through licensing, just so long as the practice of that business does not involve expression or first amendment issues.

In the video, for instance, the narrator says that “In America, you’re not supposed to need the government’s permission to speak.”  This is true, but it’s needlessly particular. In America, you’re not supposed to need the government’s permission to engage in any trade. Too many people have forgotten this (particularly in the political classes), so I wish this video did a little bit more to emphasis that, even as I understand perfectly well why the legal strategy might focus on the first amendment angle.