Category: First Amendment rights

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crime and punishment First Amendment rights general freedom moral hazard property rights too much government

A Cakewalk Case?

Masterpiece Cakeshop v. Colorado Civil Rights Commission, Supreme Court, civil rights, first amendment

The Justices seem split — on the “gay cake” case. 

A Christian baker had no trouble selling a gay couple a pre-​made cake, out of his showcase, but balked at selling a custom wedding cake of any kind. According to NPR’s Nina Totenberg, the couple understood that requesting a “gay” themed cake would go too far. But the baker’s refusal to decorate any wedding cake seemed unacceptable.

In Colorado, where the cake didn’t get made, there is a public accommodations law that says businesses must serve all customers regardless of race, religion, or sexual orientation. So Colorado went after the baker, the baker hired a lawyer, and Masterpiece Cakeshop v. Colorado Civil Rights Commission was heard by the Supreme Court this week.

Commonly billed as a conflict between First Amendment-​guaranteed religious freedom* and the civil rights of citizens as defined and protected by a state law, it almost defies easy solution. 

One could argue that the First Amendment right to freely associate (including the right not to associate) should extend to business. But that goes against legislation built up since the 1964 Civil Rights Act, which in many places ended an often violent racial segregation** no one wants back. However, a custom-​made wedding cake is also expressive and therefore speech.

One could decide for Colorado on federalist grounds. And the late Justice Antonin Scalia, Ms. Totenberg tells us, argued that a general law not directed at a religion does not allow a specifically religious defense.

But one defense of the baker may work. The Colorado Civil Rights Commission has not applied its rulings equally. It sided with non-Christian bakers who refused to make cakes for Christians requesting Bible-​verse cakes.

And that “takes the cake.”

This is Common Sense. I’m Paul Jacob

 

* In this regard, Justice Kennedy stated from the bench that it seemed to him “that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” Kennedy will likely be the swing vote.

** No small amount of this violence, segregation and discrimination was coerced by state laws in defiance of the Fourteenth Amendment and the Bill of Rights.

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Accountability First Amendment rights folly media and media people moral hazard national politics & policies too much government U.S. Constitution

Our Royals Are Not Amused

Dianne Feinstein, First Amendment, free speech, censorship

“You created these platforms,” Sen. Dianne Feinstein (D‑CA) informed the top legal minds at Facebook, Twitter, and Google, “and now they’re being misused.”

“And you have to be the ones who do something about it — or we will.”

Take that as a threat.

But also take it as the grand moment when the Establishment showed its hand.

Consider: Facebook, Twitter, and YouTube (a Google product) are “media platforms.” So are books, libraries, newspapers and newsstands. Imagine being a king right after Johannes Gutenberg invented the printing press. Very quickly, the world changed. 

People thought differently. And they began demanding change from government. The sovereigns had to make room for subjects-turned-citizens.

Royalty and aristocracy did try to regulate the new platforms of information and opinion. Censorship was all-​too-​common. The rulers killed upstarts for writing the wrong things, saying the wrong things.

So, which side would you be on, Mrs. Feinstein?

That is Scott Shackford’s basic take on this. I’m with him.

I just wish to expand: in my lifetime the media platforms of newspapers and television were regulated. Heavily. Mergers and business purchases were subject to government permission; the electromagnetic spectrum was licensed rather than treated as private property, and the actual content of radio and TV shows were regulated by the FCC.

And the Feinsteins of Washington got awfully secure in their positions. Had the regulation of American media done its trick?

Enter new media, uncorking the bottle of opinion.

No wonder the Establishment is scared.

We shouldn’t let them regulate political content on the Internet. Demand, instead, the opposite: a complete repeal of the regulation of business management — and non-​criminal content regulation — of all media platforms

This is Common Sense. I’m Paul Jacob.

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First Amendment rights general freedom media and media people moral hazard national politics & policies Regulating Protest too much government

Crossing the Twitter Rubicon

Liberty, Trump, censorship, NBC, New York Times, First Amendment

No sooner had I upbraided media folks for overreacting to various presidential peccadillos regarding Puerto Rico, when Donald J. Trump, in his running media battle, crossed a line with this week’s most notorious tweet.

He first complained, perhaps correctly, that, “Fake @NBCNews made up a story that I wanted a ‘tenfold’ increase in our U.S. nuclear arsenal. Pure fiction, made up to demean.” But then the chief executive officer of the United States of America tweeted this: “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License?”

The answer to his question is: never.

The Federal Communications Commission licenses the network affiliates of ABC, NBC and CBS across the country — not the networks themselves — to broadcast their television signals using public airwaves. Still, through those affiliates a tyrannical FCC could no doubt damage the networks. 

Government licensing of media outlets is anathema to the First Amendment. And the thought of the POTUS actively threatening the ability of NBC or other networks to report the news as they freely decide is … well, unthinkable.

I don’t buy the accusations that Trump is undermining freedom of the press by criticizing the press — even arguing by tweet, “The FAKE NEWS media (failing @nytimes, @CNN, @NBCNews and many more) … is the enemy of the American People!” The president is as free to criticize the media as the media is free to criticize the president.

It might be his duty.

But considering the use of official government power to potentially “shut down NBC and other American networks,” as UK’s Independent reported, or just to temper their coverage?

Despotism.

This is Common Sense. I’m Paul Jacob. 

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Accountability crime and punishment First Amendment rights general freedom media and media people moral hazard nannyism national politics & policies property rights responsibility too much government

Google: Disagreement

Google, censorship, Boycott, Competition, free market, be evil

Once upon a time, Google penned a stern note to self: “Don’t be evil.”

What you regard as avoiding evil, though, depends on what you regard as doing good. 

Does Google think it’s “good” to fire someone for offering reasoned objections to vapid pieties about why there are more men than women working as programmers, and about how to fix the problem? Assuming it is a problem.

If the answer is yes, then it’s up to more reasonable people to say, “No, Google, stomping on candid internal discussion of your (bad) politics and policies is not ‘doing good.’” 

Alas, some Google critics push for a “remedy” worse than the problem: government force. They want government to impose new prohibitions and mandates on large private firms that help people to spread their opinions.

I don’t necessarily agree when a firm — Google, Twitter, PayPal or anybody else — stops providing services to persons expressing views that managers and HR departments disdain. Yet I may agree. No one is morally obligated — and no one should be legally compelled — to help spread the views of others. 

I certainly refuse to distribute any installment of “Common Sense” guest-​authored by The Anti-​Paul-​Jacob Club.

When market actors make bad decisions without violating anyone’s rights, others have many powerful and peaceful means of opposing those decisions. Criticism. Boycott. Competition. 

But we shouldn’t seek to outlaw the decision-making. 

The right to freedom includes no guarantee that one will always do the right thing as others see it.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights folly general freedom moral hazard nannyism responsibility too much government

Legal Not to Lie About Your Milk

milk, Institute for Justice, regulations, Ocheesee Creamery, Department of Agriculture, too much government

Mary Lou Wesselhoeft doesn’t have to lie about the milk she’s selling. The Florida Department of Agriculture has lost in court. Mary Lou has won.

Ocheesee Creamery sells pasteurized milk without any additives. One of her products is skim milk. Ocheesee sells skim milk without vitamin additives, which is perfectly legal to do. But the Florida government claims that only skim milk with the additives counts as real “skim milk,” the kind you can call skim milk in speech to customers. (Kafka, did you write this horror story? Fess up!)

Give credit to the judge who asked: “Can the state, consistent with the First Amendment, take two words out of the English language and compel its citizens to use those words only as the government says?” The reply of the government’s lawyer? “Yes.”

Creepy.

Mary Lou’s victory is also a victory for all Americans who want to exercise their right to tell the truth about what they’re selling. And it’s a victory for the Institute for Justice, which took up the case on her behalf. At its website, IJ points out how easy it would be to annihilate freedom of speech by letting the government redefine words at will. We’re not free if our freedoms can be arbitrarily defined away by the people in power.

The Institute specializes in defending our rights against senseless government intrusions. Until such laws and regulations are repealed, it seems that the Institute will always have much to do — unfortunately. But, fortunately, it keeps on doing it.

This is Common Sense. I’m Paul Jacob.

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Accountability First Amendment rights incumbents local leaders Regulating Protest U.S. Constitution

Homer’s Recall Odyssey

recall, election, voting, first amendment, free speech, ACLU, politicians,

Freedom of speech isn’t a free pass to avoid the consequences of what one says. Or does. Tell that to three members of the Homer, Alaska, city council — Donna Aderhold, David Lewis and Catriona Reynolds — who are the subject of a recall petition.

Well, a superior court judge just did.

Represented by the ACLU, the trio sued to block a recall petition with more than enough voter signatures. Their lawsuit challenged the city attorney’s acceptance of the legal rationale for the recall, claiming the recall attempt punishes the politicians for their speech.

“To conclude that anytime a recall petition is based in part or in whole on what a politician said is protected by the First Amendment,” Superior Court Judge Erin Marston ruled, “would be to eviscerate the recall statute to such an extent that the populace would almost never be able to seek recall of any of their elected officials.”

Now the recall moves forward.

In most of this Land of the Free, citizens lack the ability to recall their elected officials. In places that do have the process, it is rarely used. When it is used, it is often portrayed as voters throwing a temper tantrum. 

Or an unfair election do-over. 

Or mean-​spirited ‘vendetta politics.’

Not so. The petition requirements make recalls very difficult. Recalls don’t happen without some serious problems with the current officeholder(s). And once a recall is triggered, there follows a democratic vote to decide whether citizens want to keep the sitting hireling or find someone new. 

Seems pretty reasonable. 

When politicians are recalled and removed, they deserve it.*

This is Common Sense. I’m Paul Jacob.

 

* The problem seems never to be that good politicians are being recalled, but that too many politicians who should be recalled are not. Back in 2003, the governor of California was recalled. He deserved it. In 2011, a whopping 88 percent of Miami-​Dade County voted to recall Mayor Carlos Alvarez. He earned it, too.

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