Author Archives: Sheila

Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?
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Some Soothing Figures

Among the Substack newsletters I regularly receive are those from Heather Cox Richardson–whom I often quote– and Robert Hubbell. One of Hubbell’s recent missives contained some very welcome information and analysis.

Hubbell began with his frequent admonition that Democrats should be confident, but definitely not complacent–that we will need to work hard to turn out every anti-MAGA voter in November. But that said, he made two very important–and comforting–points:

Trump is running his campaign as an incumbent president. He has accomplished a hostile takeover of the Republican Party apparatus. He has threatened to banish any Republican who supports or donates to his opponents. Under those circumstances, anything less than a Soviet-style win of 100% is a failure.

So, against that backdrop, Trump’s loss of 40% of the vote in the South Carolina primary is devastating. It is particularly bad because he lost 40% in a state that is more favorable to him than almost any state in the union—because of its strong presence of white, older, evangelical voters (60% of voters are white evangelical or born-again Christians). Losing 40% of the vote under those circumstances should send shockwaves through the Republican establishment.

As Hubbell quoted Axios:

If America were dominated by old, white, election-denying Christians who didn’t go to college, former President Trump would win the general election in as big of a landslide as his sweep of the first four GOP contests.

It’s not. That’s why some top Republicans are worried about the general election in November, despite Trump’s back-to-back-to-back-to-back wins in Iowa, New Hampshire, Nevada and South Carolina.

Or, as Josh Marshall of Talking Points Memo put it, Face It: This is a Weak Showing for Trump in South Carolina.

It is not merely that Trump lost 40% of the vote. It is also that 50% of those voters said they would not vote for Trump if he became the nominee—which translates into 25% of Republicans who will not vote for Trump!

One quibble: it translates into 25% of the Republicans who went to the polls in the primary who will not vote for Trump in the General. Some of those voters will stay home in November, but that percentage probably is also predictive of the percentage who didn’t vote in the primary but who will vote in the General.

Hubbell’s most reassuring–and eye-opening– analysis, however, was his discussion of contemporary polling, and its demonstrable bias.

Polls do not “predict” outcomes of races; rather, they predict ranges of outcomes at different levels of confidence. But on average and over time, polls should cluster around the actual outcomes. That is not happening with polling regarding Trump.

Instead, the polling averages have consistently overstated Trump’s support—something the media and pollsters have ignored or excused. At some point, they should simply admit that their polling models are broken and overstate support for Trump.

Adam Carlson posted the following on Twitter, comparing Trump’s average margin of victory predicted by 538.com versus the actual margin of victory by which Trump won the first three GOP primaries:

In Iowa:

  • Final 538.com Average: Trump +37
  • Final Result: Trump +30

In New Hampshire:

  • Final 538.com Average: Trump +18
  • Final Result: Trump +11

In South Carolina:

  • Final 538.com Average: Trump +28
  • Final Result: Trump +20

Notice a pattern? The average of 538.com’s polls overstated Trump’s support by at least 7 percentage points in three primaries.

I will add that 538.com is probably the most credible of all the polling sites.

Since Hubbell’s post, Michigan held its primary, and the trend held. Trump won by roughly 42 points; the final 538 polling average had him winning by 57 points, an underperformance of some 15 points.

Hubbell is undoubtedly correct when he says that when polls show a consistent bias, there is likely to be a flaw in the methodology that warrants skepticism. Here, that flaw consistently overstates Trump’s support. As he concludes,

My point is that we should ignore the polls. We should not delude ourselves, but neither should we trust polls that consistently overstate Trump’s support. Just keep working hard and ignore the uncritical, breathless reporting about polls that have shown consistent bias in favor of Trump.

I share these little rays of sunshine to remind you–and remind myself–that the future will be what we make it. Nothing is certain–certainly not the polls.

As unsettling as it is, we live in a time where there simply are no comforting political verities, no outcomes we can confidently predict. Polls are inaccurate, artificial intelligence is creating misleading messages, media fragmentation and online propaganda encourage confirmation bias…The list goes on.

We need to “power through” this very confusing environment, separating wheat from chaff to the extent possible. We also need to reassure ourselves that, since most Americans are sane, we need to GET OUT THE VOTE.

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When People Tell You Who They Are, Believe Them

There is a famous Maya Angelou quote: “When people show you who they are, believe them.”

Voters unwilling to recognize that American democracy will be on the ballot in the upcoming election will need to ignore or reject what the proponents of theocracy and autocracy are willingly telling us. 

Heather Cox Richardson recently reported on the candor of a speech at this year’s CPAC convention.

How religion and authoritarianism have come together in modern America was on display Thursday, when right-wing activist Jack Posobiec opened this weekend’s conference of the Conservative Political Action Conference (CPAC) outside Washington, D.C., with the words: “Welcome to the end of democracy. We are here to overthrow it completely. We didn’t get all the way there on January 6, but we will endeavor to get rid of it and replace it with this right here.” He held up a cross necklace and continued: “After we burn that swamp to the ground, we will establish the new American republic on its ashes, and our first order of business will be righteous retribution for those who betrayed America.”

If there was any doubt that today’s Republican Party has rejected the (small-d) democratic basis of America’s republic, the party’s unrelenting attacks on reproductive rights should be convincing evidence. Not satisfied with Dobbs‘ erasure of the constitutional right to abortion, the party’s theocratic base is now gunning for birth control. The recent Alabama decision that effectively outlawed IVF rested on a state law conferring “personhood” on fertilized eggs. Since Dobbs, sixteen state legislatures have introduced such laws, and four Red states—Missouri, Georgia, Alabama, and Arizona–have passed them.

The cranks and Christian Nationalists who dominate the party in the House of Representatives introduced a national personhood bill immediately after they took control in January 2023. Republicans in the Senate were already on board; Rand Paul had introduced a “Life at Conception Act” on January 28, 2021. Richardson tells us it currently has 18 co-sponsors, including the head of the National Republican Senatorial Committee. These lawmakers surely know that these measures are opposed by huge majorities of the voting public; a party that valued either democratic representation or constitutional compliance would not be intent upon passing them.

There are multiple other examples: members of the GOP have demonstrated their willingness to accept and promote Russian disinformation, and to take Putin’s side against Ukraine– behavior inconsistent with the majority’s desire to help Ukraine fend off Russian aggression. And the GOP’s embrace of gerrymandering is also entirely consistent with its devotion to the “end of democracy.” Gerrymandering, after all, is an effort to evade democratic accountability.

If these examples aren’t sufficient, there’s the “show and tell” from Trump himself. As Axios (among others) has reported, in an introduction to a series on the effort,

Former President Trump’s top allies are preparing to radically reshape the federal government if he is re-elected, purging potentially thousands of civil servants and filling career posts with loyalists to him and his “America First” ideology, people involved in the discussions tell Axios.

The impact could go well beyond typical conservative targets such as the Environmental Protection Agency and the Internal Revenue Service. Trump allies are working on plans that would potentially strip layers at the Justice Department — including the FBI, and reaching into national security, intelligence, the State Department and the Pentagon, sources close to the former president say.

During his presidency, Trump often complained about what he called “the deep state.”

The heart of the plan is derived from an executive order known as “Schedule F,” developed and refined in secret over most of the second half of Trump’s term and launched 13 days before the 2020 election.

The reporting for this series draws on extensive interviews over a period of more than three months with more than two dozen people close to the former president, and others who have firsthand knowledge of the work underway to prepare for a potential second term. Most spoke on condition of anonymity to describe sensitive planning and avoid Trump’s ire.

People voting in November can’t say they weren’t warned. 

The Republican Party of today is Trump’s party, and multiple sources are plainly and forcefully telling us who they are. It is not an exaggeration to say that the fate of America going forward rests on enough voters’ listening to them and understanding what they are saying. 

Accept Maya Angelou’s advice. Believe them.

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The Return Of The Loonies…

Evidently the looney-tune folks are back–or never really went away…What’s that old saying? The more things change, the more they stay the same…

I was a teenager in the 1950s (yes, I’m old), and I still remember my mother fretting about the growing influence of the crazies of the John Birch Society. For those of you too young to remember that organization, allow me to share some lyrics from a satiric Chad Mitchell song of that time…

Oh, we’re meetin’ at the courthouse at eight o’clock tonight
You just come in the door and take the first turn to the right
Be careful when you get there, we hate to be bereft
But we’re takin’ down the names of everybody turnin’ left


Well, you’ve heard about the agents that we’ve already named
Well, MCA has agents that are flatly unashamed
We’re after Rosie Clooney, we’ve gotten Pinkie Lee
And the day we get Red Skelton won’t that be a victory?
We’ll teach you how to spot ’em in the cities or the sticks
For even Jasper Junction is just full of Bolsheviks
The CIA’s subversive, and so’s the FCC
There’s no one left but thee and we, and we’re not sure of thee.


Do you want Justice Warren for your Commissar?
Do you want Mrs. Krushchev in there with the DAR?
You cannot trust your neighbors or even next of kin
If mommie is a commie then you gotta turn her in.

The repeated chorus explained the organization’s mission:
 
Oh, we’re the John Birch Society, the John Birch Society
Here to save our country from a communistic plot
Join the John Birch Society, help us fill the ranks
To get this movement started we need lots of tools and cranks.
 
 
 
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Fundamentalist Religion And Politics

If you are looking for an explanation of America’s current, toxic political tribalism, you can find plenty of theories from which to choose. There’s the yawning gap between the rich and the rest, the ability–facilitated by our fragmented media environment–to find “facts” that are congenial to your political preferences, the craven behavior of too many political figures…the list is extensive.

That said, the major element of today’s culture war is religion. Not the specifics of religious belief or theology, but the role fundamentalists and Christian Nationalists believe religion should play in modern society and governance.

I spent six years as the Executive Director of Indiana’s ACLU, and experienced first-hand the consistency and ferocity of efforts to ignore America’s Constitutionally-mandated Separation of Church and State. I lost count of the number of panels and discussions devoted to (hopefully patient) explanations of the First Amendment, and why–despite the fact that the exact word “separation” doesn’t appear–the history and clear meaning of the Amendment require recognition of the Founder’s intention to keep religion and government in their proper lanes.

But today’s battles are different from that older, persistent effort to erode operation of the First Amendment’s religion clauses.

The rise of Christian Nationalism is part and parcel of the angry, knee-jerk fundamentalist reaction to cultural change. That reaction is what’s behind the morphing of what used to be a political party into a cult frantically trying to return the country to a time they largely misremember. Just as the racists among them are reacting to demographic changes eroding Whites’ majority status, fundamentalist Christians are reacting to the decrease in public performative religiosity and to what has been termed the “rise of the nones”– to the loss of Christianity’s cultural hegemony.

I rarely make predictions, because I’m not very good at them (mine tend to be based more on hope than evidence). But I feel fairly confident that efforts to turn the U.S. into a fundamentalist Christian theocracy are doomed. The public reaction to court decisions based on religious dogma rather than legal precedent–Hobby Lobby, Dobbs, and the recent Alabama ruling equating embryos with children, among others–is telling.

The argument for injecting religion into the broader culture, rather than honoring the right of individuals to determine their own belief structures, is almost always based on assertions that religiosity equates to morality. An allied charge is that, absent rigorous religious grounding, children will grow up to be selfish and immoral. Neither of these assertions is supported by evidence.

Quite the contrary.

I recently came across a fascinating study suggesting that raising one’s children without religion may be a healthier alternative.

Gone are the days of the unyielding God-fearing mother as the archetype of good parenting, suggests a recent article from the Los Angeles Times. According to multiple reports, research has shown that a secular upbringing may be healthier for children. According to a 2010 Duke University study, kids raised this way display less susceptibility to racism and peer pressure, and are “less vengeful, less nationalistic, less militaristic, less authoritarian, and more tolerant, on average, than religious adults.” But the list of benefits doesn’t stop there.

Citing Pew Research, the Times’ Phil Zuckerman notes that there’s been a recent spike in American households who categorize themselves as “Nones” — their religious affiliation being “nothing in particular.” According to Zuckerman, modern nonreligious adults account for 23 percent of Americans. As early as the ’50s, that figure was only four percent. And with godlessness on the rise, researchers have begun analyzing the benefits of nonreligious child rearing more closely.

“Far from being dysfunctional, nihilistic and rudderless without the security and rectitude of religion,” writes Zuckerman, “secular households provide a sound and solid foundation for children, according to Vern Bengston, a USC professor of gerontology and sociology.” Bengston oversees the Longitudinal Study of Generations, the largest study of families and their religious affiliations in America. After noticing an uptick in nonreligious households, Bengston added secularism to the study in 2013. “Many nonreligious parents were more coherent and passionate about their ethical principles than some of the ‘religious’ parents in our study,” said Bengston in an interview with Zuckerman. “The vast majority appeared to live goal-filled lives characterized by moral direction and sense of life having a purpose.”

Little by little, that dreaded “cosmopolitanism” is undermining the fundamentalist battles that historically triggered wars and currently fuel so much social discord.

Both secularism and the more liberal iterations of Christianity, Judaism and Islam that increasingly characterize today’s culture are signs of social and human progress. Despite the current blowback, I predict they’ll prevail.

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