Category: First Amendment rights

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ballot access First Amendment rights political challengers

“Top Two” Goes South

Washington State has a long history of popular antagonism to political parties. For years, the state enforced an open primary, which meant that Republicans could vote in Democratic primaries and Democrats in Republican primaries. This was very popular, because it led to widespread strategic voting.

Well, that’s a euphemism. In open primaries, what you get is not mere strategic voting so much as sabotage. I have heard of Democrats and others boasting of voting in Republican primaries, for example, supporting Pat Robertson. Why? They believed Robertson to be unelectable, and hoped putting Robertson ahead would undercut the GOP in independent voters’ eyes, and make running against the party easier in the general election.Shooting numbered ducks.

Well, a few years ago that system was thrown out as unconstitutional, as an abridgment of free association rights.

But instead of allowing party members to select candidates, Washington State movers and shakers cooked up something else altogether. They set up a system wherein anyone could use a party’s label — even if that party’s members don’t know said candidate or despise him. Robbing parties of any control over candidates offered in their name is far worse on the very constitutional issue that nullified Washington’s traditional open primaries. Though Top Two has been legally challenged, the U.S. Supreme Court just this week refused to hear arguments.

The name “Top Two” comes from the fact that only the top two vote-getters in this super-open primary are on the general election ballot. The new system has completely removed minor party candidates from the general election ballot, when most folks vote.

Top Two has had the same impact in California. Arizona voters will decide the issue this November, on their ballot as Prop 121.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights ideological culture

Half Clocked

Outside the U.N. General Assembly, Iranian President Mahmoud Ahmadinejad was asked if Salmon Rushdie remained under a death sentence. Iran’s Supreme Leader, Ayatollah Ruhollah Khomeini, had issued a fatwā for the author’s fourth novel, The Satanic Verses, in 1989. Though that specific death sentence was rescinded a decade later, others have renewed the call for Mr. Rushdie to be killed.

Ahmadinejad responded jokingly, “Is he here in the United States? . . . If he is . . . you shouldn’t broadcast it for his own safety.”

Clearly, Mahmoud never completed a Dale Carnegie course.

On the bright side, nothing so clearly articulates the superiority of our system of government over Iran’s as does our embrace of free speech and their rejection of it.

Tragically, political leaders in the West often fail to stand up for this freedom. The Iranian leader cited a German law to claim the West has a double standard. He argued that Germany’s prohibition on publicly denying that the Nazi Holocaust ever happened makes it a criminal offense to “embark on historical research.”

Now, Mr. Ahmadinejad is a Holocaust denier, his point about historical research is moronic, and the tyrannical government he figure-heads would really, really like nuclear weapons, making him extremely dangerous, to boot. But, more tragically, he has a point here.

He’s half as good as a stopped clock.

Germany’s abridgment of freedom in this instance doesn’t help battle Nazism, much less Islamofascism; it hurts by undercutting a key value. We have nothing to fear from free speech. Indeed, it’s important to hear fully what both our friends and our enemies are thinking.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights judiciary

The Truth-Telling Defense

In these United States, must you pay $60,000 for the “crime” of publicly telling the truth about someone?

What if you’re a mere blogger rather than a network news anchor?

Back in March of last year, a jury decided that Minneapolis blogger John Hoff must pay $35,000 for lost wages plus $25,000 for emotional distress to Jerry Moore because Hoff had blogged, in 2009, that Moore was involved in mortgage fraud. After Hoff’s post hit the cyberwaves, Moore was booted from the University of Minnesota.

The jury did not find that Hoff had libeled Moore. Instead, Hoff had supposedly committed “tortious interference” with Moore’s employment, presumably by giving the university information that it found convincing and relevant. (Hoff didn’t fire Moore. The university did.)

Luckily, this verdict, though horrific, didn’t provide the final word. The Minnesota Court of Appeals has just overturned it, arguing, in part: “Because truth is an absolute defense to a claim for defamation, truth should also be a defense to a claim for tortious interference with a contract arising out of an allegedly defamatory statement.”

Eugene Volokh of The Volokh Conspiracy judges the case a “big victory for free speech.” Apparently, the First Amendment can take a licking and keep on ticking.

It’s unfortunate, however, that this truth had to be affirmed at the cost of three years of time, trouble and anxiety for Mr. Hoff.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights too much government

Permit Needed

It’s hot out, and I’m thinking of ants.

Specifically, I’m thinking of the City of Phoenix functionary who told Dana Crow-Smith and her fellow Christian proselytizers that they could not hand out bottled water in the 112-degree heat. She and her fellow “good Samaritans” lacked a permit for vending.

Though, as Brian Doherty noticed on Reason’s website, she wasn’t vending. She was giving.

One needs a vendor’s license to give?

Thankfully, lawyers have come to the rescue, claiming that the city has violated the good Christian lady’s “First Amendment right to freely exercise her religion, her Fourteenth Amendment due process rights, as well as Arizona’s Free Exercise of Religion Act.”

Specifically, Ms. Crow-Smith demands a formal apology from the city, hoping, she says, to avoid a lawsuit. She just wants to be able to hand out water as she spreads the gospel. “I don’t think it’s even about religious beliefs.” she said. “I think anybody should be able to give away water on the sidewalk to anybody.”

Anarchy! Chaos!

Government isn’t about freedom, or even “nice.” On the one hand, governments increasingly force people to behave like the Gospel’s Good Samaritan; on the other, if you spontaneously take on the role yourself, government folk want you to get permission, first.

Call it insect logic. Above the ant colony in T.H. White’s The Sword in the Stone, there is written the ants’ totalitarian motto:

EVERYTHING NOT FORBIDDEN IS COMPULSORY.

Hot or cold, we must not let our governments take such insectoid philosophy as a principle. (Oh, and Phoenix? Apologize.)

This is Common Sense. I’m Paul Jacob.

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First Amendment rights Ninth Amendment rights too much government

The First Isn’t Enough

The First Amendment isn’t enough.

Because its provisions have stronger teeth than most other amendments in the Bill of Rights, it gets put into service quite a lot, to bolster other freedoms. It’s a pity there’s no general “right to freedom” — or even “freedom of contract” — amendment.

A Western Pennsylvania Christian higher education outfit, Geneva College, joined by Seneca Hardware Lumber Co. in Cranberry, has sued the federal government over the new “Obamacare” requirement to provide morning-after “contraception” to employees, saying that the provision violates their religious freedom. The Justice Department argues that the case should be thrown out, on grounds that public entities like the college and the lumber company do not possess the legal right to “impose” their religious values on others.

As noted at reason.com, this is a weird misreading of the crucial negative right/positive right distinction: Under the “negative right” to freedom, an employer not providing a benefit to employees imposes nothing. Quite literally. The imposition lies entirely with the government forcing its way into contracts between businesses and employees.

One could construe a positive right to contraception, I guess, but that positive right would also be an imposition. “Imposition” belongs to the language of positive rights.

The government’s lawyers also object to the hardware company seeking sanctuary (so to speak) in the First Amendment to oppose the contraception mandate. If just anyone can appeal to the First Amendment’s freedom of religious exercise clause, then the government could hardly enforce conformity.

Well, yes.

That’s the idea of limited government. The problem, today, is that we citizens don’t have enough legal oomph to protect ourselves (either as employers or employees) from the federal government’s vast overreach.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights general freedom too much government

A Caricature Worth 25 Lashes?

One hallmark of a free society is the legal right to make fun of our leaders. Several times per week I engage in ridicule as well as argument against the folks who think they know what they are doing when they attempt to rule us.

We should wear this freedom to ridicule like a badge.

Iranians, alas, can’t say the same.

Mahmoud Shokraye was tried and found guilty for insulting Nameye Amir, a member of parliament. Shokraye drew a mildly funny caricature of Amir, in a colorful post-Nastian style (the kind most major papers now fall back on), and for his trouble got 25 lashes.

Heroically, a number of cartoonists have upped the ante and created even less flattering caricatures, as you can see at the Cartoon Blog. (I sample some of them, here.) Amir got more than he bargained for. I hope it stings — more than 25 lashes’ worth.

There are several lessons to draw from this.

First, “taking offense” is not the basis of any legal action. Or any violent action. In the west, we’re centuries away from duels and other deadly fights of “honor.” The Islamic east is, alas, still embedded in old honor cultures. The faster they can shuffle off that obsession and move to a rule of law, instead, the better.

Second, as Thomas Jefferson put it, governments should fear the people, not the other way around. That’s part of what it means to live in a free society.

Politicians who don’t like it are free to seek a less public job. Really.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights government transparency insider corruption national politics & policies

What a Whistle-blower Learned

It can happen to any organization. The original intent — or, at any rate, declared purpose — of the concern gets lost amidst the chaos of hard-to-manage projects and personnel, as individuals re-define their goals at variance with the official end; as corruption sets in; as functions decay into forms persisting out of mere inertia; as institutional memory and learning get short-circuited by broken feedback loops and a culture of silence, secrecy, and hush-hush prudence.We Meant Well by Peter Van Buren

No organization is exempt, but it happens most often, and easiest, in government.

Take the experience of Peter Van Buren, late of two State Department Provincial Reconstruction Teams, related in The American Conservative:

In some 24 years of government service, I experienced my share of dissonance when it came to what was said in public and what the government did behind the public’s back. . . .

What I saw while serving the State Department at a forward operating base in Iraq was, however, different. There, the space between what we were doing (the eye-watering waste and mismanagement), and what we were saying (the endless claims of success and progress), was filled with numb soldiers and devastated Iraqis. . . .

Van Buren wrote a book on that huge divide between secret truth and public lie, and, of course, got in trouble for it. Folks higher up in government are not renowned for their love of whistle-blowers. Van Buren not unexpectedly finds himself being shown the door on his own career, or, as he puts it, his superiors are preparing to put his “head on a pike inside the lobby of State’s Foggy Bottom headquarters as a warning to its other employees.”

Government may not honor whistle-blowers, but citizens should. After all, it is allegedly for our sake that government does what it does. To discover, as Mr. Van Buren discovered, that “we failed in the [Iraq] reconstruction and, through that failure, lost the war,” is news we must incorporate into our storehouse of foreign policy wisdom.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights

Speech Results

You often hear people who support campaign finance laws say that the First Amendment isn’t about money, “just speech.” These folks despise the Citizens United decision that forbade, under the First Amendment, regulation of groups of people (“corporations,” profit or non-profit) pooling money to advertise and promote ideas and arguments and slogans and such.

Though many are First Amendment extremists on other matters, desiring no government interference of protests or movies or the Internet, when it comes to politics they fear “Big Money.” So they want to censor speech that some groups would push near elections.

It turns out, of course, that the effects of the Citizens United decision have been mostly beneficial, as Tim Cavanaugh points out in Reason. As a result of that infamous decision, local political races have been “shaken up”; the decision “guaranteed ‘big laughs’” in many humorous political commercials that were all-too-rare before; interest groups have been freed of the old yoke of the major parties; the GOP presidential nomination process has been made far more competitive; and even President Obama, the Citizens United critic-in-chief, has raised millions under the auspices of the organizations the decision allowed to operate — so he apparently likes it, too.

The blessings of “more speech” are pretty obvious — if one looks for them. But for those with a prohibitionist mindset, who fear a wide open public discussion, they’ll no doubt hate actual free speech. As protected by the Citizens United decision.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights free trade & free markets general freedom ideological culture

A Nickel’s Worth of Freedom

“If we are going to pay for your contraceptives,” said Rush Limbaugh on air, referring to Ms. Sandra Fluke’s congressional testimony, “and thus pay for you to have sex, we want something for it. We want you to post the videos online so we can all watch.”

In my Townhall column this weekend, “’Tis a Pity He’s a Boor,” I responded with a “No, thanks.” But I did defend what I took to be the point Rush was trying to make: “The issue isn’t about contraceptives, but the right to choose . . . on your own nickel.”

The flak Rush received became an avalanche of advertiser pull-outs from his show. And an apology.

And this all points to something interesting about freedom.

Rush has freedom of speech. He would still have it if every advertiser in the world refused to touch him and he took to blogging. His freedom requires no one to support him. Free speech doesn’t force anyone to listen – or advertise.

Similarly, Ms. Fluke has freedom of association, sexually and otherwise, including her relationships with the university in question and its contracted insurance company. But such freedom doesn’t obligate her school or insurance company or other consumers (through passed-on costs) to pay for her contraceptives. We all have freedom.

The same freedom of contract that allows advertisers to drop Rush’s show also allows businesses to choose employee benefit plans, workers to choose where they will work, and insurance companies to decide what terms they will offer.

Or it should. And in the specific case of contraception coverage did, until the Obama Administration dictated otherwise.

Several nasty words ago, that’s what started this brouhaha.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights ideological culture national politics & policies

Contra Mandated Contraception Coverage

Regulators spawned by “Obamacare” have mandated that employer-provided medical insurance plans provide contraception as a benefit. 

The problem, as currently reported and debated, is that only churches are exempted — church-run or -affiliated hospitals, for example, are not. And so Catholic hospitals, along with other religious-based charitable endeavors, must conform, despite their commitment to age-old ideas about the sanctity of life, which they say contraception and abortifacients, especially (some contraceptive methods are de facto abortion-inducing), abridge.

Many conservatives argue that the mandate thus runs afoul of the First Amendment. But it turns out that many Republican politicians have supported similar mandates in several states.

Mike Huckabee signed one such mandate into law in Arkansas.

No big news that GOP politicians are often just as bad as Democrats, of course. But forget, if you can, the First Amendment angle. The mandate runs afoul of something even more fundamental: common sense.

Adding an umpteenth mandate to the list of regulations government places on contracts amongst employers, employees, and insurance companies hardly passes the smell test. The more benefits that government insists you contract for, the higher your insurance rates. The higher the rates, fewer are those who would willingly buy, thus scuttling the whole point of “health care reform.”

We ostensibly want more people to purchase major medical insurance. Not fewer.

It’s possible that some reformers seek precisely that, to put insurance companies out of business, leaving only government to take up the slack, as a “single payer.”

In the case of Republican reformers, however, is there a hidden agenda or just mere foolishness?

This is Common Sense. I’m Paul Jacob.