The Limits of Free Speech

Police Consider Charging Trump With Inciting a Riot Over Violence at North Carolina Rally, Sarah K. Burris, Raw Story, March 14, 2016:

The Cumberland County Sheriff’s office is considering filing charges of inciting a riot against GOP frontrunner Donald Trump for the Fayetteville, North Carolina rally according to anNBC reporter and local media sources. The rally was the site where Trump supporter John Franklin McGraw was arrested for sucker-punching a black protester and threatening to kill him.

“We are looking at the totality of these circumstances, including any additional charges against Mr. McGraw, including the potential of whether there was conduct on the part of Mr. Trump or the Trump campaign which rose to the level of inciting a riot,” Sheriff’s Office lawyer Ronnie Mitchell told The Fayetteville Observer.

At the rally, Trump asked the audience “Can’t we have a little more action than this?” when protesters were causing a disturbance. “See, in the good old days this didn’t use to happen, because they used to treat them very rough,” he said. “We’ve become very weak.”

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969): Continue reading


What I’m Reading, September 24, 2015

The new racism embodied in total contempt for Obama, Wendell Berry, Lexington Herald-Leader, September 13, 2015

Nobody can doubt that virtually all of the president’s political enemies would vehemently defend themselves against a charge of racism. Virtually all of them observe the forms and taboos of political correctness. If any very visible one of their own should insult the president by a recognized racial slur, they would all join in the predictable outrage. But the paramount fact of this moment in the history of racism is that you don’t have to denominate the president by a recognized racial slur when his very name can be used as a synonym.

This subtilized racism is not only a perhaps unignorable lure to Republican politicians; it can also be noticeably corrupting to Democrats.

In Kentucky, for example, where Obama is acknowledged carefully to be “unpopular,” candidates of both parties have been, and still are, running “against Obama.” If the president comes into the state to visit, some Democratic candidates, like Republican candidates, become conspicuously busy elsewhere.

Scaring Up the Vote, Jamelle Bouie, Slate, September 8, 2015 Continue reading


Texas AG Paxton under the Microscope

It seems fair to say that statewide Texas politicians of the Republican variety are having some legal troubles.

Some of them have led to full-blown legal proceedings, like former Governor Rick Perry’s pending criminal charge, the civil fine against Attorney General Ken Paxton from the Texas State Securities Board (for an incident that occurred before he was elected), and the criminal securities fraud complaint filed against AG Paxton by Texans for Public Justice (which goes before a grand jury soon).

Some have remained in the realm of allegations and suspicions, like current Governor Greg Abbott’s alleged misconduct with regard to the Texas Enterprise Fund when he was Attorney General. I’m not sure if any formal complaints are currently pending against Lieutenant Governor Dan Patrick—which is not to say he hasn’t had complaints (PDF file) before—but he sure does know how to stir people up.

"SCOTUS Marriage Equality 2015 (Obergefell v. Hodges) - 26 June 2015" by Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0 (], via Wikimedia Commons

Most recently notorious, I’d say, is AG Paxton’s official opinion (PDF file here or here), issued on June 28, 2015 in response to a request from LG Patrick, regarding the U.S. Supreme Court’s marriage equality ruling in Obergefell v. Hodges and the Fifth Circuit’s order affirming that ruling in De Leon v. Abbott. Continue reading


Freeze Peach

This is critically important:

Free speech is the right to speak your mind without government censorship and without fear of extralegal retaliation like harassment or violence. That’s all!

Free speech doesn’t include the right to speak your mind on any forum anywhere. The government may not prevent you from speaking, but private parties, like blog owners or corporations, aren’t required to let you use their property as your platform.

Free speech doesn’t include the right to be believed or to be taken seriously. People may mock, ridicule or laugh at what you say, or they may reject it outright.

Free speech doesn’t include the right to be listened to. People who don’t desire to hear your opinion can hang up on you, block you on social media, change the channel, close the browser tab. Free speech doesn’t give you the right to bombard people with harassing messages or otherwise force them to pay attention to you against their will.

And free speech doesn’t include the right to suffer no consequences whatsoever for your expressed opinions. As Facebook found out, if you say things that other people find abhorrent, they may boycott you, disinvite you or choose not to associate with you.

Adam Lee


What I’m Reading, January 27, 2015

It’s Time to Debunk the Churchill Myth, Simon Heffer, New Republic, January 16, 2015

His was a political career that, apart from what happened during the Second World War, was of a length and scope that was, and remains, difficult to comprehend. Politics was in Churchill’s blood. He was a grandson of the Duke of Marlborough. His father, Lord Randolph, had been a controversial Tory MP and, even more controversially, briefly chancellor of the exchequer in the 1880s. After an undistinguished career at Harrow—which at least had the crucial effect of making young Winston realize that failure was something to be overcome and not to be crushed by—he was, following a spell in the army, first elected to the House of Commons in 1900, during the reign of Queen Victoria, and first served in the cabinet as president of the Board of Trade under Edward VII in 1908; yet he endured to be the present Queen’s first prime minister, and did not resign as an MP until the 1964 general election, held just three months before he died and a few weeks before his 90th birthday. Those facts of chronology, and the list of the great offices he held—not just prime minister, but chancellor and home secretary, among many others—further inspire the awe in which he, or rather his memory, is held, and help to create a picture of the unstoppable romance of his life.

But it is his indispensable and nation-saving achievement in 1940 that obscures so much else about him, with myth-suffocating reality. It diverts attention from all else that Churchill did before and after, and even discourages analysis of it. Worst of all, it discourages reflection on his management of the war, which, as anyone who has read the accounts of some of his closest colleagues—notably Sir Alan Brooke and Anthony Eden—will know, was much more hit and miss than conventional history usually has it. The effect of the often unquestioning idolatry with which he is widely regarded not only hinders us from evaluating Churchill properly but from forming an accurate assessment of the times in which he lived, and that he did so much to shape.

Obama would like us all to stop being such idiots, Alex Moore, Death and Taxes, January 21, 2015 Continue reading


Bribery in a post-Citizens United World

If money is “speech” in an electoral context, what about during the course of governance?

Could direct payment of cash, or some other thing of value, to an official in exchange for some official action, or forbearance from some official action, be construed as a very convincing argument that is protected by the First Amendment?

To give an example, suppose two people have separate meetings with an official regarding a pending application for, say, a building permit. The first person is a resident of a neighborhood that adjoins the property on which the proposed project will be built. That person explains to the official that the project will cause substantial noise pollution at all hours of the day and night, will depress property values to a significant degree, and will cause all of the residents of the neighborhood to develop a non-fatal condition that causes them to grow additional heads that emit flatulence from their mouths, which will cause unemployment problems.

Like this, but I guess with more farts.

The second person meets with the official and explains that the briefcase in his hand has $1 million in cash that will belong to the official if the permit is issued. Continue reading


Inciting Violence

There may be a serious problem with understanding the legal definition of “incitement”:

Fox News contributor Father Jonathan Morris on Sunday called for officials in Oklahoma City to shut down a Satanic black mass because he said worshippers were “inciting violence” by mocking Christians.


[I]n a segment titled “The Fight For Faith” on Sunday, Morris explained to the hosts of Fox & Friends that he felt “bad” for anyone who participated in the event.

“You get yourself into something that is, first of all, satanic, that is supernatural,” he said. “They believe that as soon as you connect yourself with evil, evil stuff happens. I feel very bad for them.”

Morris acknowledged that Satanists had a “political right” to worship, but he said that the city also had a “responsibility to defend the good governance of its people.” Continue reading


Lying for Jesus

By jodylehigh [Public domain, CC0 1.0], via PixabayAn appellate court recently ruled in favor of a prison inmate who was denied early parole, effectively speaking, for being an atheist:

Atheist Randall Jackson had been serving time in the Western Reception, Diagnostic and Correctional Center in St. Joseph, Missouri when he learned about an opportunity to get early release on parole — all he had to do was attend the center’s “Offenders Under Treatment Program.”

Just one problem: The program was faith-based, requiring him to both pray and acknowledge the existence of God. (Another treatment program promoted Alcoholics Anonymous which is also religious in nature.)

He explained his misgivings to prison staff, and was allegedly told to pretend that “God” stood for “good orderly direction.” I think I’ve heard that one before.

This prison inmate, however, had some scruples.

Jackson eventually asked to be transferred to a secular treatment program — but his request was denied. Instead of lying and playing the game, he chose not to enroll in OUTP… and was later denied an early release.

(Emphasis added.)

This seems pretty self-evidently unconstitutional. Here we have a benefit offered to inmates, early release, conditioned on completion of a program that is pretty explicitly religious. (It’s probably safe to assume that it is Christian in nature.) The inmate in question here is an atheist, but one could substitute any non-Christian religion—or even different flavors of Christianity—and the problem presents itself even more clearly.

Jackson sued, but lost in the trial court. He appealed to the Eight Circuit: Continue reading


Thou Shalt Not Speak Ill of Lean Finely-Textured Beef

Beef Products, Inc. (or “BPI”) is mad. You may have never heard of BPI, but you have probably heard of their product, lean finely-textured beef (“LFTB”). Of late, LFTB has gained some prominence in the public eye under the slightly more-descriptive name “pink slime.”

BPI is not happy that people in the media are calling their product “pink slime,” and they believe that it is hurting their business. They are therefore doing what we in this country always do: suing.

[BPI] has just filed a defamation (“veggie libel”) lawsuit for $1.2 billion (!) against an amazing cast of characters:

  • ABC News (owned by Disney)
  • TV news anchor Diane Sawyer
  • ABC correspondent Jim Avila
  • ABC correspondent David Kerley
  • Gerald Zirnstein , former USDA employee who invented the term “pink slime”
  • Carl Custer, former USDA employee
  • Kit Foshee, whistleblower former BPI employee

From what I understand, the concern is not just that the concept of “pink slime” is kind of gross. People have raised health concerns as well, due to questions of ammonia content or something. BPI disputes that the process that involves ammonia poses any danger to consumers.

I get that we cannot expect, as end users in a vast, complex society, to receive our consumer goods in anything much resembling their natural state. We’ve probably all been to Subway or Blimpie and seen the giant cylindrical loaves of turkey (just like the Pilgrims ate!) Continue reading


Chick-Fil-A: The Good, the Bad, the Ugly, and the WTF? – UPDATED x 2


This is what everyone is so worked up about never eating again.

The Good: The Muppets (well, the Jim Henson Company), sever their ties to Chick-Fil-A.

The Bad: The mayor of Boston tells Chick-Fil-A to take a hike. So does the mayor of Chicago. As much as I may wholeheartedly agree with the sentiment, this is not a good idea. Near as I can tell, Chick-Fil-A has not done anything illegal, per se. It would be one thing if the company could not meet some municipal requirements for fairness in hiring, or something similar, but this appears to be a rejection by city officials, in at least two major cities, based solely on the content of Chick-Fil-A’s speech. This has First Amendment problems written all over it, because as long as Chick-Fil-A isn’t breaking the law, it can say whatever dumb crap it wants. We, as consumers, exercise our free speech by criticizing the company, and we exercise our economic rights by eating nasty fried chicken sandwiches elsewhere. The government ought to stick to enforcing the law. Plus, this action potentially sets a dangerous precedent, giving free reign to a far less tolerant mayor of some other city to deny a corporation that supports same-sex equality. (NOTE: The mayor of Boston has withdrawn his threat to bar the company from setting up shop in town.)

The Ugly: Chick-Fil-A recalls its Muppet-themed toys, citing “safety” concerns. Specifically, it claims that, although “there have not been any cases in which a child has actually been injured, however there have been some reports of children getting their fingers stuck in the holes of the puppets.” People all over the world try not to giggle, and very few believe that this announcement is unrelated to contemporary events. (NOTE: If there haven’t been any actual safety concerns, someone could get in quite a bit of trouble for saying that there are.)

The WTF? Someone pretends to be a teenage girl on Facebook in order to lamely defend Chick-Fil-A. Nothing directly links several fake Facebook pages to Chick-Fil-A, so it is likely to be some rogue ally whose help Chick-Fil-A is better of without. The girl’s account promptly disappears from Facebook once “she” is called out. Wil Wheaton helpfully puts out this missing person report:


The entire world of social media shudders in dismay. Names like Abby Farle and Cordell Bunton may go down in obscure social media history.

Honorable Mention: Rick “Frothy” Santorum joins Mike “The Huck” Huckabee (he needs a better nickname) in standing up for Chick-Fil-A. So Chick-Fil-A traded the Muppets for these two? Ouch.

UPDATE: Based on my “dangerous precedent” argument above regarding the cities of Boston and Chicago, astute reader Kathleen points out that the precedent, in a sense, was already set nearly two decades ago, right in my own backyard. The commissioners of Williamson County, Texas decided not to give tax breaks to Apple because of Apple’s policy on benefits for same-sex partners. As the AP reported on December 1, 1993:

Commissioners of a Texas county on Tuesday refused to give a tax break to Apple Computer Inc., citing the company’s policy of granting the same health benefits to partners of gay and lesbian employees that it does to heterosexual spouses.

Apple had sought $750,000 in tax abatements over seven years to build an $80-million, 700-employee complex in Williamson County, just north of Austin.

County commissioners rejected the tax abatements, 3-2.

“We’re very disappointed at this time,” Apple spokeswoman Lisa Byrne said. “We’re going to regroup and review our operations. It is unlikely we will locate in Williamson County.”

Debate on the tax break for several weeks centered on Apple’s domestic partner policy.

“I cannot in good conscience extend that benefit to them (Apple) because of the conviction I have that same-sex partners is wrong,” Commissioner Greg Boatwright had said earlier.

After the vote, Charlie Culpepper, the mayor of Round Rock, which is the largest town in Williamson County, said he disagreed with the commissioners.

“I don’t agree with the idea of same-sex marriages, but government needs to stay out of business. Families need jobs,” he said.

I note a couple of key difference between Williamson County’s decision and the mayors of Boston and Chicago, but the overall principle seems to be the same.

1. The mayors in Boston and Chicago seemed to be wanting to deny Chick-Fil-A the right to set up shop in their towns entirely. In Williamson County, it was a decision not to give them a tax break. It’s mostly a cosmetic difference, since such an enormous tax break would constitute most of the incentive for a company to locate in a particular place. At any rate, Apple seems to be doing just fine in Austin, thanks.

2. In Boston and Chicago, the decision was motivated by disagreement with statements made by the company’s owner, essentially ratified by the company’s history of donations. This is, first and foremost, disagreement with the content of the company’s speech. With Apple, the Williamson County commissioners did not disagree with any particular statement of the company, but rather its employment practices. My spin would be that the commissioners objected to the fact that Apple didn’t discriminate against its gay and lesbian employees. I’m not sure if this is any more defensible than a disagreement over speech, but it is a distinction worth noting.

UPDATE 2: The ACLU of Illinois seems to agree with me (h/t Consumerist):

Alderman Moreno’s single-handed actions are wrong and dangerous. The ACLU of Illinois strongly supports full recognition and fair treatment for LGBT persons in Chicago and across Illinois. Indeed, our strong support for the LGBT community led us in May to file a lawsuit challenging the state ban in Illinois on the freedom to marry for same-sex couples. At the same time, we oppose using the power and authority of government to retaliate against those who express messages that are controversial or averse to the views of current office holders. In this instance, the Alderman is using his governmental authority to exclude a business from opening its doors simply because the corporate leadership has expressed anti-LGBT views in the public. This use of government authority simply is not permissible under our Constitution.

We also are concerned how this practice might be applied in the future. If the government is permitted to deny entrance into a Chicago community to Chik-Fil-A based on statements about public policy, then government elsewhere will have the power to exclude the expanding number of businesses who support fairness for LGBT people. Over the longer term, such government censorship would undermine the growing success of the LGBT rights movement.

Photo credit: ‘Chick FilA Chicken Sandwich’ by J. Reed (Flickr) [CC-BY-SA-2.0], via Wikimedia Commons.