Defining Free Speech

When I taught about the First Amendment’s Free Speech protections, I would sometimes ask students to differentiate between a person pontificating that “Someone should lead a revolt against the government,” and a person at the head of an angry crowd moving toward a government official and yelling “We’re coming for you.”

The first of those is protected speech–it’s the utterance of an opinion. We might dislike the opinion, we might find it infuriating (much like burning a flag, which is the expression of a similar opinion), but it is an opinion, and protected by the First Amendment. The second, however, is a threat. To the extent that words constitute a credible threat, they are not within the protection of the First Amendment. Granted, it isn’t always easy to tell the difference between an angry exhortation and a genuine threat, but legally, they are different.

A recent article in the New York Times considered the rise of anti-Semitic incidents on the nation’s campuses, and drew that distinction.

Free speech, open debate and heterodox views lie at the core of academic life. They are fundamental to educating future leaders to think and act morally. The reality on some college campuses today is the opposite: open intimidation of Jewish students. Mob harassment must not be confused with free speech.

Fareed Zakaria made much the same point in an essay in The Week.

I have strongly condemned the attacks of Oct. 7. I think that those who praise Hamas in any way are blind to the reality that it has been the principal opponent of a two-state solution to the Israeli-Palestinian question. But the question to grapple with is how to handle views that either side finds deeply offensive. And of course, speech and assembly are not the same as physical intimidation and harassment, which prevent civil discourse…

The basic argument for free speech… is that it is better to hear those you violently disagree with than to ban or silence them. That way, debate happens out in the open and points are matched with counterpoints. The alternative is to drive discourse into the shadows and gutters of political life where it festers, turns into conspiracy theories, and often erupts into violence.

David French –a noted expert on the First Amendment–underlined the point that– just as there are international rules that apply to shooting wars, there are constitutional rules that apply to our nation’s culture wars. As he explained, “applying those rules properly is one way that a continent-size, multi-faith, multicultural society peacefully perseveres through profound division.”

Our civilization is intended to be a rights-based liberal democracy, where people who possess diametrically opposed points of view cannot just survive but also thrive without compromising their most fundamental beliefs — so long as they don’t interfere with the rights of others.

As French reminds his readers, freedom of speech includes freedom to be offensive and provocative–even freedom to advocate violence, but not to “incite or produce” lawless action.

Under this construct, public support for Hamas — or public support for carpet bombing Gaza — is constitutionally protected, even if it’s gross and immoral, and public institutions that suppress such speech violate the First Amendment….

However,

The right to speak does not include a right to silence others. Putting up a poster is an act of protected speech. Tearing down that poster is not, even if the person destroying the poster is trying to make his or her own statement. Tearing down a poster is akin to shouting down a public speaker. Your protest cannot trump the speaker’s own right to free speech. The answer to a poster is another poster, not destroying the expression you hate, by tearing it down or defacing it any way…

The right to speak does not include a right to harass. This last concept is perhaps the most difficult to understand and apply consistently. The right to speak, as I said, absolutely includes a right to offend. The government cannot silence your speech simply because it makes people angry or upset…

This is a strict standard but certainly one that applies to threats and to acts of physical intimidation. If anti-harassment laws mean anything, they mean that students shouldn’t have to fear for their safety from fellow students simply because of their race, color or national origin. 

The prohibition of harassment includes actions prompted by antisemitism and Islamophobia that “detract from the victims’ educational experience.” 

I strongly recommend clicking through and reading French’s essay in its entirety, because it is an excellent primer on the constitutional interpretation and critical importance of  America’s Free Speech doctrine.

Bottom line: In America, people with defensible points of view express them through speech, not through vandalism, intimidation or thuggery. 

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The Banality Of Crazy

Thomas Edsell recently had a guest essay in the New York Times that addressed a question I’ve had for a long time. Why don’t media figures state the obvious? Donald Trump is mentally ill. Crazy.

Edsell quoted political scientist Brian Klaas, whose Oct. 1 essay was titled, “The Case for Amplifying Trump’s Insanity.”

Klaas argued that the presidential contest now pits a 77-year-old racist, misogynist bigot who has been found liable for rape, who incited a deadly, violent insurrection aimed at overturning a democratic election, who has committed mass fraud for personal enrichment, who is facing 91 separate counts of felony criminal charges against him and who has overtly discussed his authoritarian strategies for governing if he returns to power against “an 80-year-old with mainstream Democratic Party views who sometimes misspeaks or trips.”

“One of those two candidates,” Klaas noted, “faces relentless newspaper columns and TV pundit ‘takes’ arguing that he should drop out of the race. (Spoiler alert: It’s somehow not the racist authoritarian sexual abuse fraudster facing 91 felony charges.)”

Klass points to the multiple pundits telling Biden to drop out, or engaging in “doom and gloom” predictions about Biden’s age. Meanwhile, the response to Trump’s increasingly unhinged behavior is, as he says, “crickets.”

How is it possible that it’s not front page news when a man who soon may return to power calls for law enforcement to kill people for minor crimes? And why do so few people question Trump’s mental acuity rather than Biden’s, when Trump proposes delusional, unhinged plans for forest management and warns his supporters that Biden is going to lead us into World War II (which would require a time machine), or wrongly claims that he defeated Barack Obama in 2016?

Klaas thinks that media outlets have succumbed to what he called the “banality of crazy.” That has led them to ignore

even the most dangerous policy proposals by an authoritarian who is on the cusp of once again becoming the most powerful man in the world — precisely because it happens, like clockwork, almost every day.

Klass argues that the “don’t amplify him” strategy is nothing short of disastrous–and I agree.

Edsell reminds his readers that, three months after Trump took office, the Yale School of Medicine convened a conference called A Duty to Warn. Conference attendees issued a book titled  “The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President.”

I read that book; it was recommended by a psychiatrist friend. It had chapters with titles like “Our Witness to Malignant Normality,” “Unbridled and Extreme Hedonism: How the Leader of the Free World Has Proven Time and Again That He Is Unfit for Duty,” and “Pathological Narcissism and Politics: a Lethal Combination.”

I understand that a given individual can be deeply mentally ill. What I simply do not understand is how people can look at Donald J. Trump and fail to see a cognitively impaired, unstable and delusional individual who is getting worse as he ages.

Trump has pledged to shoot shoplifters (“We will immediately stop all the pillaging and theft. Very simply, if you rob a store, you can fully expect to be shot as you are leaving that store.”), pledged to “root out” the “communists, Marxist fascists and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections and will do anything possible — they’ll do anything, whether legally or illegally, to destroy America and to destroy the American dream.”)

On Nov. 6, Isaac Arnsdorf, Josh Dawsey and Devlin Barrett reported in The Washington Post that Trump “wants the Justice Department to investigate onetime officials and allies who have become critical of his time in office, including his former chief of staff John F. Kelly and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley.”

Edsell includes quotes from several psychiatrists who attribute the spiraling of his insanity to age (he’s only 4 years younger than Biden) and the stress of his multiplying legal problems.

Most of the specialists I contacted see Trump’s recent behavior and public comments as part of an evolving process.

“Trump is an aging malignant narcissist,” Aaron L. Pincus, a professor of psychology at Penn State, wrote in an email. “As he ages, he appears to be losing impulse control and is slipping cognitively. So we are seeing a more unfiltered version of his pathology. Quite dangerous.”

In addition, Pincus continued, “Trump seems increasingly paranoid, which can also be a reflection of his aging brain and mental decline.”

Edsall and Klass are right: the media needs to call crazy, crazy.

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A Clear Choice

Indiana’s Democrats may finally be wising up.

As lines firm up for Indiana’s 2024 election, the Democrats are putting together a slate of impressive candidates for statewide office. Destiny Wells has announced she is joining Jennifer McCormick and Marc Carmichael on that statewide ballot. That makes three absolutely first-rate candidates who will take on Indiana’s MAGA culture warriors.

You may remember that Destiny Wells was expected to defeat disgraced Diego Morales for Secretary of State a couple of years ago, even though that contest was down-ballot and would have required a significant amount of ticket splitting in Red Indiana. She failed to pull that off, but garnered wide praise for her intellect and demeanor. She is now taking on one of Indiana’s most reviled politicians, Attorney General Todd Rokita.

I have previously written about Jennifer McCormick, former Secretary of Education, who is running for Governor, and about Marc Carmichael, running for U.S.Senate. You can expect additional posts about Marc and his positions when I return from our trip to Australia and New Zealand–I am all in on his campaign, and not simply because Marc is running against Jim Banks, Indiana’s version of Marjorie Taylor Green. Marc is a great guy– the real deal; furthermore, he has outlined his policy priorities and I agree with every single one of them. 

I have also posted–a number of times–about the candidates they are running against. (If you type Rokita in this blog’s search bar, you’ll find numerous negative posts beginning when he was in Congress, and extending through this, his first–and hopefully only– term as AG, during which he has “distinguished” himself by repeatedly attacking the doctor who aborted a raped ten-year-old, by joining other GOP AG’s in efforts to obtain the medical records of women leaving the state for reproductive services, and by grandstanding whenever a camera is near. Rokita was recently reprimanded by the state’s Supreme Court, and is generally an embarrassment to the legal profession.

Republican Senate candidate Jim Banks is currently a member of the Wrecking Ball Congress–an anti-government, anti-choice, anti-LGBTQ culture warrior married to a woman who heads up a several-state “pro-life” organization. He voted to overturn the 2020 election and to shut down the government, and supported loudmouth empty suit Jim Jordan for Speaker. 

We don’t yet know who the Republicans will nominate for Governor, but the likeliest is rich, self-important Mike Braun, who is leaving the Senate (where he signaled his disinterest in governing, and routinely voted for MAGA priorities). All five primary candidates seem to be promising tax cuts and vying for the Christian Nationalist vote.

There is absolutely no comparison between the quality of the Democratic candidates and the clown car that is the GOP ticket. If the Democrats can get their message out, I am confident they can win.

My only concern is funding. 

About the money: the Democrats don’t need to match the Club for Growth or the other far-right funders supporting GOP candidates, but they do need enough to get their message out– to let voters know who they are, where they stand, and how their positions differ from those of the MAGA culture warriors.

The data I’ve seen confirms that most Hoosiers agree with the Democrats’ message–especially on abortion and gun safety. But voters need to hear from these candidates, and that takes money. Hoosiers need to donate enough for a repeat of 2008 –when Barack Obama won Indiana– by funding this slate of outstanding Democrats.

The cartoonish Republicans on the ballot can’t defeat the Democratic ticket, but “savvy” political observers with a defeatist attitude about Indiana politics can. As I’ve said before, that defeatist attitude is far and away the biggest barrier to Democratic victories in this state. It prevents otherwise intelligent observers from recognizing–and funding– opportunities when they present themselves. 

Is Indiana a hard state for Democrats to win? Yes. Does this year offer unusual openings? Absolutely– especially in open, state-wide races where the GOP’s extreme gerrymandering is irrelevant.

They just need the resources to mount effective campaigns.

Next year, Hoosier Democrats will offer voters an absolutely sterling set of statewide candidates. These aren’t performative, “look at me I wanna be important” figures–they are serious, experienced, talented–and ethical. They believe in democracy. In Marc Carmichael’s words, they want to actually do the jobs. And unlike their opponents, they understand what those jobs entail, and are capable of fulfilling the duties of the offices involved.

And a bonus: in addition to getting good officeholders, Hoosiers can join the other states–including a number of Red ones– that have voted for reproductive rights and genuine religious liberty. 

We need to dig deep and send them money. It’s important!

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Projection, Congressman Comer?

As if the ability of a cohort of anti-government Republicans to keep the government from functioning isn’t frustrating enough, the GOP’s performative poo-throwers continue to make wild and unsupported accusations against Democrats–including Democrats who aren’t even government actors.

The consistent assaults on Hunter Biden are a case in point. Is he clearly a troubled individual? Yes. Is he now or has he been a government official? No. Was the Trump appointee investigating his activities pressured by the Biden Administration? Not according to that official.

The desperate attempt to find something–anything–to throw at Joe Biden has included various accusations leveled by Congressman James Comer. Comer heads up the House Oversight Committee, and his most recent accusations have revolved around the fact that–gasp!!–Joe Biden loaned his brother some money.

Rep. James Comer has claimed that President Joe Biden “laundered China money,” accused Biden of “influence peddling,” and issued subpoenas to members of Biden’s family. Comer has based these actions on the “discovery” of transactions that Biden made no effort to disguise, including a $200,000 loan Biden extended to his brother and which his brother later repaid.

As Heather Cox Richardson has written, Biden made no effort to conceal the transaction, and Comer has loaned a similar amount to his own brother. “Comer has continued to insist without any proof that Biden’s loan was illicit,” and Congressman Jared Moskowitz–a member of the Oversight Committee–“has repeatedly asked Comer to testify about his own loan.”

“That is bullsh*t,” Comer said of Moskowitz’s observation that the American people would like to know more about his own loan. Moskowitz answered: “Your word means nothing, Mr. Chairman…. I think the American people have lots of questions, Mr. Chairman, and perhaps you should sit maybe for a deposition.”

Comer responded by calling Moskowitz a “smurf.” (Don’t ask me what that’s supposed to mean….”smurf” seems like a strange insult, but then, Comer is strange. )

According to the Daily Beast, 

Comer was engaged in a series of business dealings with his own brother. Those dealings, which included a $200,000 payment, were nowhere near as straightforward as the dealings between Joe and James Biden. Comer’s deal involved not only a big payment but multiple land swamps, shell companies, and requests for special tax breaks.

Comer evidently based his accusation that the Biden loan was “shady” on the fact that the repayment came from Jim Biden’s receipt of monies he was owed by a health care company. (Health care companies are regulated by the government, so…okay, I don’t get it either, but Comer is clearly not the sharpest tool in the box.)

Comer’s family has for years been identified in news accounts as owning “Comer Land & Cattle.” As of 2018, Comer listed this as an asset worth $3 million.

However, no such entity appears to exist in business filings. It reportedly did at one time, but there’s been no such business for years. At least, not legally. It’s not registered as a business in Kentucky. It’s not registered anywhere else. A past press release showed him as the owner of “James Comer Jr. Farms,” which also doesn’t appear on paper to be a business entity. Comer’s Facebook page also lists him as the owner of “Comer Family Farms,” which isn’t listed as a business entity in Kentucky, according to the secretary of state’s website.

Much of Comer’s business activity seems to follow inheriting land in Kentucky following his father’s death in 2019. But exactly what happened with that land is the opposite of transparent. In one case, Comer reportedly sold his interest in a piece of land to his brother, then bought it back five months later, slipping his brother $18,000 in the process. That purchase ran through a shell company owned by Comer, the value of which doubled in two years. That company appears to have dealt exclusively with agricultural land deals at a time when Comer was on the House Agriculture Committee.

Comer’s family also swapped large tracts of land in Tennessee. That includes handing his brother one tract valued at $175,000 as a “gift.” In exchange, Comer reportedly got another tract that The Daily Beast describes as “apparently more valuable” without recording the cost of that land. The value of these transactions appears to be larger than even the largest loan that Biden gave to his brother.

Comer also seems to have benefited directly from a “tobacco buyout” of land he purchased while serving on the Kentucky legislature’s Tobacco Settlement Agreement Fund Oversight Committee. This means that he helped set the rate for the purchase of his own property.

I’m beginning to understand why Comer is so suspicious of other people’s transactions. Unethical people tend to believe everyone is shady. 

I still don’t understand what’s so terrible about being a smurf…

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Happy Thanksgiving From New Zealand

No pontificating today–just a hearty “thank you” to everyone who reads this blog, and especially to those who comment here, send me articles, and/or otherwise provide valuable feedback. I appreciate you all–and I’m thankful for you!

From New Zealand this year, a heartfelt Happy Thanksgiving!

See you tomorrow.

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