Sheila – Page 1091 – Sheila Kennedy

First Amendment Follies

I n 1 9 9 3 , N a t H e n t o f f w r o t e a b o o k t i t l e d “ F r e e S p e e c h f o r M e b u t N o t f o r T h e e : H o w t h e A m e r i c a n R i g h t a n d L e f t R e l e n t l e s s l y C e n s o r E a c h O t h e r . ” A f t e r a m p l y d o c u m e n t i n g t h i s t h e s i s , H e n t o f f c o n c l u d e d t h a t t h e h u m a n a n i m a l ’ s u r g e t o c e n s o r w a s a t l e a s t a s s t r o n g , a n d p e r h a p s s t r o n g e r , t h a n i t s s e x d r i v e . W h a t e v e r t h e c o m p a r a t i v e s t r e n g t h s o f s e x u a l d e s i r e a n d t h e i m p u l s e t o c o n t r o l w h a t o u r n e i g h b o r s a r e r e a d i n g , w a t c h i n g o r d o w n l o a d i n g , n e w s s o u r c e s o f f e r d a i l y r e m i n d e r s o f t h e e s s e n t i a l a c c u r a c y o f h i s o b s e r v a t i o n s . O v e r s e a s , t h e M u s l i m r i o t s o v e r p u b l i c a t i o n o f t h e D a n i s h c a r t o o n s h a d b a r e l y s u b s i d e d w h e n a n A u s t r i a n c o u r t s e n t e n c e d h i s t o r i a n D a v i d I r v i n g t o t h r e e y e a r s i n p r i s o n . H i s c r i m e ? D e n y i n g t h a t t h e h o l o c a u s t h a d o c c u r r e d . H e r e i n A m e r i c a , H o m e l a n d S e c u r i t y o f f i c e r s v i s i t e d t h e L i t t l e F a l l s l i b r a r y , i n B e t h e s d a , M a r y l a n d , a n n o u n c e d t h a t v i e w i n g “ I n t e r n e t p o r n o g r a p h y ” w a s f o r b i d d e n , c h a l l e n g e d a p a t r o n ’ s c h o i c e o f v i e w i n g m a t e r i a l , a n d a s k e d h i m t o “ s t e p o u t s i d e . ” ( T h e C o u n t y E x e c u t i v e l a t e r a p o l o g i z e d , s a y i n g t h a t t h e o f f i c e r s h a d b e l i e v e d t h e y w e r e e n f o r c i n g t h e c o u n t y ’ s s e x u a l h a r a s s m e n t p o l i c y , a n d c a l l i n g t h e i n c i d e n t “ u n f o r t u n a t e . ” ) P a r t i s a n s L e f t a n d R i g h t a c t u a l l y a g r e e o n c e n s o r s h i p — t h e y a r e f o r i t . T h e y o n l y a r g u e a b o u t w h a t s h o u l d b e c e n s o r e d . A s l i b e r t a r i a n s a r e f o n d o f n o t i n g , t h e p o l i t i c a l s p e c t r u m i s n o t a s t r a i g h t l i n e f r o m L e f t t o R i g h t ; i t ’ s a c i r c l e , a n d w h e r e t h e e n d s t o u c h , a u t h o r i t a r i a n s m e e t . T h e r e a l b a t t l e i s b e t w e e n t h e w i n g – n u t s o f a l l p e r s u a s i o n s a n d t h o s e o f u s w h o a g r e e w i t h A m e r i c a ’ s F o u n d e r s , w h o b e l i e v e d t h a t g i v i n g g o v e r n m e n t t h e p o w e r t o d e c i d e w h a t w e s a y w o u l d b e f a r m o r e d a n g e r o u s t h a n a n y i d e a w e m i g h t e x p r e s s . I n t h e s y s t e m f a s h i o n e d b y t h o s e F o u n d e r s , p e o p l e c a n ’ t b e t h r o w n i n j a i l f o r t h e i r o p i n i o n s — h o w e v e r o d i o u s o r w r o n g . A t l e a s t , n o t y e t . W h a t w o r r i e s t h o s e w h o c a r e a b o u t c i v i l l i b e r t i e s i s t h e n u m b e r o f f o l k s w h o d o n ’ t s e e m t o u n d e r s t a n d w h a t f r e e d o m o f s p e e c h p r o t e c t s , w h a t i t d o e s n ’ t , a n d w h y . F r e e d o m o f s p e e c h d o e s p r o t e c t t h e i n d i v i d u a l e x p r e s s i o n o f i d e a s — i n c l u d i n g , a s H o l m e s f a m o u s l y s a i d , “ t h e i d e a w e h a t e ” — a g a i n s t g o v e r n m e n t a c t i o n . A s I u s e d t o w a r n m y c h i l d r e n , h o w e v e r , i t d o e s n ’ t p r o t e c t y o u f r o m y o u r m o t h e r , o r f r o m y o u r p r i v a t e – s e c t o r b o s s . I t a l s o d o e s n ’ t p r e v e n t g o v e r n m e n t f r o m p u n i s h i n g i l l e g a l b e h a v i o r s . Y o u c a n p i c k e t a H o l l y w o o d m o v i e o r b o y c o t t W a l – M a r t , b u t y o u c a n ’ t r o u g h u p t h e m o v i e ’ s d i r e c t o r o r b u r n d o w n t h e l o c a l W a l – M a r t s t o r e — e v e n i f y o u r p u r p o s e i s t o “ s e n d a m e s s a g e . ” Y o u c a n b u r n y o u r o w n f l a g i n p r o t e s t , b u t n o t y o u r n e i g h b o r ’ s . F r e e d o m o f s p e e c h a l l o w s y o u t o s p e a k y o u r m i n d w h e n t e s t i f y i n g a t t h e l e g i s l a t u r e , t h a n k s t o t h e r i g h t t o p e t i t i o n t h e g o v e r n m e n t f o r r e d r e s s o f g r i e v a n c e s . I t d o e s n ’ t a l l o w p e o p l e w h o ’ v e b e e n s e l e c t e d b y g o v e r n m e n t o f f i c i a l s t o d e l i v e r o f f i c i a l g o v e r n m e n t p r a y e r t o p r a y i n a s e c t a r i a n , n o n – i n c l u s i v e m a n n e r . T h a t ’ s g o v e r n m e n t s p e e c h , a n d t h e E s t a b l i s h m e n t C l a u s e f o r b i d s g o v e r n m e n t f r o m p r e f e r r i n g s o m e r e l i g i o n s o v e r o t h e r s . W e j u s t n e e d t o f i g u r e o u t h o w t o c o n v i n c e a l l t h e a u t o c r a t s t h a t t h e s e l i m i t s o n g o v e r n m e n t a r e a s g o o d a s s e x .

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First Amendment Follies

In 1993, Nat Hentoff wrote a book titled “Free Speech for Me but Not for Thee: How the American Right and Left Relentlessly Censor Each Other.” After amply documenting this thesis, Hentoff concluded that the human animal’s urge to censor was at least as strong, and perhaps stronger, than its sex drive.

Whatever the comparative strengths of sexual desire and the impulse to control what our neighbors are reading, watching or downloading, news sources offer daily reminders of the essential accuracy of his observations.

Overseas, the Muslim riots over publication of the Danish cartoons had barely subsided when an Austrian court sentenced historian David Irving to three years in prison. His crime? Denying that the holocaust had occurred. Here in America, Homeland Security officers visited the Little Falls library, in Bethesda, Maryland, announced that viewing “Internet pornography” was forbidden, challenged a patron’s choice of viewing material, and asked him to “step outside.” (The County Executive later apologized, saying that the officers had believed they were enforcing the county’s sexual harassment policy, and calling the incident “unfortunate.”)

Partisans Left and Right actually agree on censorship—they are for it. They only argue about what should be censored. As libertarians are fond of noting, the political spectrum is not a straight line from Left to Right; it’s a circle, and where the ends touch, authoritarians meet. The real battle is between the wing-nuts of all persuasions and those of us who agree with America’s Founders, who believed that giving government the power to decide what we say would be far more dangerous than any idea we might express.

In the system fashioned by those Founders, people can’t be thrown in jail for their opinions—however odious or wrong. At least, not yet. What worries those who care about civil liberties is the number of folks who don’t seem to understand what freedom of speech protects, what it doesn’t, and why.

Freedom of speech does protect the individual expression of ideas—including, as Holmes famously said, “the idea we hate”—against government action. As I used to warn my children, however, it doesn’t protect you from your mother, or from your private-sector boss. It also doesn’t prevent government from punishing illegal behaviors. You can picket a Hollywood movie or boycott Wal-Mart, but you can’t rough up the movie’s director or burn down the local Wal-Mart store—even if your purpose is to “send a message.” You can burn your own flag in protest, but not your neighbor’s.

Freedom of speech allows you to speak your mind when testifying at the legislature, thanks to the right to petition the government for redress of grievances. It doesn’t allow people who’ve been selected by government officials to deliver official government prayer to pray in a sectarian, non-inclusive manner. That’s government speech, and the Establishment Clause forbids government from preferring some religions over others.

We just need to figure out how to convince all the autocrats that these limits on government are as good as sex.

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Good Night and Good Luck

I hate to get cranky, but I think a lot of us are forgetting what America is all about.

Repeat after me: our constitution wasn’t designed for cowards. The Founders didn’t protect our right to say what we think because they believed we would all mouth non-offensive proprieties. They didn’t insist on our right to pray (or not) as we choose because they were confident we would all agree about the nature of Ultimate Truth. And they didn’t insist that government show a darn good reason to search or detain us because they were sure we wouldn’t ever have anything to hide.

They protected liberty because they valued it for its own sake—not because it was safe.

In fact, they were well aware that liberty isn’t safe. Freedom is dangerous, and those who drafted the Bill of Rights knew that. They just believed that a government with the power to decide what ideas may be expressed, or what prayers must be said (and to whose gods) is much more dangerous. They were willing to risk political, scientific and religious debate—just as they were willing to take the risks of a market economy. No risk, no reward.

We’ve come a long way, baby—to weenie land, apparently. Recent headlines paint a depressing picture of a society increasingly afraid to entertain different ideas or consider evidence inconsistent with our preferred realities.

In New Mexico, a nurse with the Veterans Administration is being investigated for sedition—sedition!—because she wrote a letter to the editor criticizing George W. Bush and advocating withdrawal from Iraq. The letter was signed in her private capacity as a citizen, written on her own time, on her own stationery. She has been a VA clinical nurse specialist for sixteen years; she is now refusing to give interviews and is reportedly terrified that she will lose her job.

In Washington, a thirty-six-year veteran of the Congressional Research Agency who is widely considered the most eminent living scholar of Separation of Powers has been told to “apologize” and threatened with loss of his position in the wake of a research report disputing Presidential authority to ignore Congress and engage in unchecked surveillance of Americans’ communications. This is an individual who has served with distinction under Republican and Democratic Administrations alike.

At NASA, in one widely reported incident, an expert on global warming was ordered to modify a scientific paper posted to the agency’s website. In another, five researchers from CalTech who published a report on “Potential Environmental Impact of a Hydrogen Economy” abruptly had a planned NASA conference cancelled, reportedly by the White House Office of Science and Technology Policy, and further funding for this research has been cut off.

Perhaps—before we make too many self-righteous comparisons between our own devotion to “liberty” and the Islamists violent reaction to Danish cartoons—we should take a good hard look in the mirror. That isn’t James Madison looking back. In fact, it bears a striking resemblance to Joe McCarthy.

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Hobgoblins of Little Minds

Emerson once declared a “foolish consistency” to be “the hobgoblin of little minds.” Depending upon your definition of “foolish,” I guess that means our legislature is populated by mental giants, undeterred by the inconsistencies that baffle us lesser folks.

On the one hand, members of the General Assembly are mightily exercised over supposed abuses of the power of eminent domain. The trigger for this sudden solicitude was a recent Supreme Court ruling, Kelo v. New London, that left the definition of “public use” up to state legislatures. While reactions to that ruling arguably misread it, the ensuing debate has revolved around the issue of protecting property rights against inappropriate exercises of government power. Reasonable people will differ over what is appropriate, but most of us would agree that protecting private property from government overreaching is important.

On the other hand, the legislature is poised to effect its own “taking,” by issuing regulations that will effectively require abortion clinics to close. They dictate such minutiae as hallway width and room size. Compliance would require clinics to rebuild or relocate, an expense most could not afford. Ignore for the moment another “foolish inconsistency”—i.e., why these “health” regulations, supposedly based on legislative concern for patient safety, are not being applied to other medical facilities, like hospitals or urgent care offices or surgical outpatient clinics. The immediate question that arises is: how can the same lawmakers who have been delivering pious affirmations of private property rights and the sanctity of free enterprise turn around and pass a measure that will put these particular enterprises out of business?

If one were cynical, one might conclude that neither position is principled, and that what we have here is a classic case of pandering to different constituencies, with little regard for the merits or long-term effects of either policy. But I really don’t think that is the explanation. I really think that our lawmakers are oblivious to the inconsistencies in these two positions.

When I was active in the Republican Party, it was the party of limited government. Republicans wanted to keep the government out of your boardroom, your bedroom, and your conscience. Pundits often opine that contemporary Republicans still want government to stay out of the boardroom, but are perfectly happy to regulate your bedroom and your conscience. I don’t think that’s true, either. Today’s GOP is also perfectly willing to infringe your property rights and overrule your business decisions in the interests of morality. Their morality, not yours.

If your moral code says businesses shouldn’t pollute, that is insufficient reason to regulate emissions. If your moral code dictates paying workers a certain minimum wage, that is unwarranted interference with the market. If your moral code says everyone should have access to health care, that’s socialism. But if their moral code says a legal medical procedure is immoral, it is entirely proper to overrule the professional judgment of doctors and nurses, and regulate that business out of existence.

I guess I’m just hung up on “foolish inconsistency.”

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The Hobgoblins of Little Minds

One the one hand, members of the General Assembly are mightily exercised over supposed abuses of the power of eminent domain. The trigger for this sudden solicitude was a recent Supreme Court ruling, Kelo v. New London, that left the definition of “public use” up to state legislatures. While reactions to that ruling arguably misread it, the ensuing debate has revolved around the issue of protecting property rights against inappropriate exercises of government power. Reasonable people will differ over what is appropriate, but most of us would agree that protecting private property from government overreaching is important.

If one were cynical, one might conclude that neither position is principled, and that what we have here is a classic case of pandering to different constituencies, with little regard for the merits or long-term effects of either policy. But I really don’t think that is the explanation. I really think that our lawmakers are oblivious to the inconsistencies in these two positions.

I guess I’m just hung up on “foolish inconsistency.”