Speech Versus Action

A recent report on an upcoming Supreme Court case from the New Republic made me think–definitely not for the first time–about the widespread misconceptions around the First Amendment.

Most of the people who read this blog are aware of many of those misconceptions. Probably the most annoying is the most basic–it constantly amazes me (okay, irritates the heck out of me) how many Americans don’t know that the First Amendment, like the rest of the  Bill of Rights, protects only against government action.

I still remember a call I got when I was with Indiana’s ACLU; the caller had applied for a position with White Castle, and had been told that his extensive tattoos were incompatible with their customer service standards. He demanded we sue White Castle for infringing his Free Speech rights. I had to explain that–had the City Council passed an ordinance against tattoos, that would have violated his First Amendment rights, but White Castle is private–and has its own First Amendment right to determine the manner of its own communication.

The case described in the linked article isn’t that clear-cut. It  involves an often-contested “gray area.”

The Supreme Court will hear Counterman v. Colorado in April to decide whether prosecutors must prove that a defendant meant to threaten someone with harm, or if they can opt for the lower threshold of whether a reasonable person might interpret a defendant’s actions or statements as a threat. Where the high court ultimately comes down on this distinction could be consequential in an age when it’s easier than ever for Americans to threaten not just each other, but also election workers, FBI agents, members of Congress, and even Supreme Court justices. How far does the First Amendment go to protect them?

In my classes, I took a rather unorthodox approach to this question, and a number of similar issues. While you won’t find my distinction in legal treatises, it seemed to help students understand the purpose–and limits– of the Free Speech clause. The fundamental distinction I drew was between speech (defined as communication of a message) and action.

The distinction doesn’t rely on whether there was verbal communication.

If I tell you that this cubic zirconium ring I’m selling is really a diamond, and charge you accordingly, I have engaged in fraud–a behavior. The First Amendment won’t protect me.

If I text and telephone you every hour and call you names, that’s harassment–a behavior. The First Amendment won’t protect me.

If I burn an American flag, I am sending a message (we know it’s a message, because  most Americans understand it and find it offensive). That message is protected by the First Amendment.

The problem for law enforcement arises when it is unclear whether we’re dealing with behavior–a genuine threat–or the expression of an opinion. (As lawyers like to say, it’s a “fact-sensitive” inquiry.) Social media trolling has vastly complicated this determination.

At the heart of this case is a campaign of harassment that seems all too familiar. The plaintiff, Billy Counterman, used multiple Facebook accounts to send hostile messages to an unidentified local musician in Colorado. Among the numerous messages that Counterman sent her were ones that read, especially in the context of the years-long barrage, as threats. “Fuck off permanently,” Counterman said in one of the messages. “You’re not being good for human relations,” read another. “Die. Don’t need you.” The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.

Colorado law defines the offense to describe anyone who “repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” Notably, under the rulings of Colorado courts, prosecutors aren’t required to prove that the defendant intended to threaten a person. They instead must only show that a reasonable person would have taken the statements as threats, which is a much easier threshold to clear at trial.

In the lower courts, the troll was handed a sentence of four years under the state’s anti-stalking statute.

This is one of those “hard cases” that –as the saying goes– sometimes make bad law. Four years seems pretty excessive for being an online asshole; on the other hand, such trolling far too frequently becomes a “heckler’s veto”-defined as behavior that allows  people who disagrees with a speaker’s message to shut that message down.

It remains to be seen how the Court will treat online harassment, but it sure seems like it falls on the “behavior” side of my explanatory line…..

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Fantastic News

One of the recurring themes of this daily blog (okay, perhaps “recurring rants” would be more accurate) has been my insistence on the importance of local journalism. When a community loses a credible source of local news, it experiences a number of very negative consequences–the most obvious of which is a loss of democracy, thanks to the lack of information needed to cast informed votes.

I thought about that when a reader of this blog sent me a report that began with the following introductory paragraph:

The Houston Chronicle is shining a bright light on some of the shadiest real estate dealsthat enrich charter school operators. What could be better than to get a charter, buy property, rent it to the charter at rates of their choosing, get the property made tax-exempt, and make a bundle using taxpayer dollars? In some charter schools, the superintendent owns the properties and pays himself rent.

Here in Indianapolis, local television stations have repeatedly been running an ad asserting the “unfairness” of charter school funding that is lower than that of public schools, and our legislative overlords are currently working hard to send more of our tax dollars to voucher and charter schools–schools that even Republican legislators admit lack accountability.

Misbehaviors like those the Houston newspaper uncovered are unlikely to be uncovered by our local “ghost newspaper,” the Indianapolis Star. Never a particularly good newspaper, Gannett has turned it into a pathetic shadow of even its undistinguished past.

Little by little, however, new efforts to improve local coverage have been emerging. I have begun quoting from the Indiana Capital Chronicle, which focuses primarily on the disaster that is our legislature, and I have pointed to outlets covering other matters of local concern. But the IBJ has now reported what I consider fantastic news. ( behind a paywall)

The Indiana Local News Initiative announced its launch Wednesday as a not-for-profit media organization planning to create newsrooms in Indianapolis and Gary.

With more than $10 million raised and the participation of civic leaders such as Penske Entertainment Corp. CEO Mark Miles and Women’s Fund of Central Indiana President Tamara Winfrey-Harris, the Indiana Local News Initiative said it intends to report nonpartisan information at no cost to its audience.

“This is public service journalism,” said Karen Ferguson Fuson, former publisher of The Indianapolis Star, who is serving as board chair of the new organization. “It’s ‘What do I need to engage in citizenship and democracy?’ ‘What do I need to live on a day-to-day basis?’”

The project started with a concern about protecting democracy.  The steering committee began with the premise that a free press is critical to a free democracy, and research has confirmed Indiana’s “big gap” in coverage of local,” boots-on-the-ground community journalism.”

In addition to the 25 staff members to be hired for the Indianapolis newsroom, the  Initiative will include funding for two new positions at The Indianapolis Recorder.

The Initiative will collaborate with existing media companies; its  roster includes The Indianapolis Star, WISH-TV, WFYI Public Media and the Recorder. IBJ has not signed on as a partner.

While Indy is among a shrinking number of markets that still has multiple news outlets with talented journalists, the sizes of many of these outlets are a fraction of what they were before, and a fraction of the size necessary to cover all of the things central Indiana residents say they want,” Ferguson Fuson said.

The Lumina Foundation, one of the Indiana Local News Initiative’s partners, is providing support to TheStatehouseFile.com, a news website authored by Franklin College journalism students, to make its content available for free to members of the Hoosier State Press Association. The website previously required newsrooms to pay a fee.

Funders include the Nina Mason Pulliam Charitable Trust, Herbert Simon Family Foundation, Myrta Pulliam, Lumina Foundation, John Mutz, Michael Arnolt, the Robert R. and Gayle T. Meyer Family Fund, Gene D’Adamo, Joyce Foundation, the Indianapolis Foundation and the American Journalism Project.

The Indiana Local News Initiative plans to train and pay residents, known as “Indianapolis Documenters,” to attend public meetings and publish the results. The Documenters Network, overseen by not-for-profit media organization City Bureau, presently operates in cities such as Atlanta, Chicago and Cleveland….

The Indiana Local News Initiative is the latest media startup in Indianapolis, where not-for-profit The Capital Chronicle debuted last July and State Affairs Indiana debuted in December. Last August, digital media company Axios announced plans to launch a daily email newsletter in Indianapolis.

These efforts to combat our news desert are incredibly heartening. When people receive credible, trustworthy news and inhabit the same information environment, they not only become informed voters–they once again become members of the same community.

I’m a happy camper!

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Poverty

What is poverty?

The usual measure is economic. Those who don’t fall into that category tend to accept data reported by government agencies, but a recent article from the Indiana Capital Chronicle points out that Hoosiers with income inadequate to meet basic needs “is much higher and more extensive in Indiana than official counts would suggest — particularly among working, single mothers of color.”

The Overlooked and Undercounted report commissioned by the Indiana Community Action Poverty Institute analyzed how wages failed to keep pace even as expenses to families increased – namely food, shelter, health care, transportation and child care costs.

However, federal and state governments continue to use a measure that defines poverty based on one cost alone – food – and doesn’t account for increases in other categories.

This is hardly a surprise. I’ve previously posted about the ALICE research conducted by Indiana’s United Ways.

AlLICE is an acronym for Asset Limited, Income Constrained, Employed. ALICE households have income above the official federal poverty level, but below reality– the actual, basic cost of living. The first report, issued in 2014, was eye-opening. Researchers found that

  • More than one in three Hoosier households cannot afford the basics of housing, food, health care and transportation, despite working hard.
  • In Indiana, 37% of households live below the Alice threshold, with some 14% below the poverty level and another 23% above poverty but below the cost of living.
  • These families and individuals have jobs, and many do not qualify for social services or support.
  • The jobs they are filling are critically important to Hoosier communities. These are our child care workers, laborers, movers, home health aides, heavy truck drivers, store clerks, repair workers and office assistants—yet they are unsure if they’ll be able to put dinner on the table each night.
  • For families living on the edge, families struggling just to put that dinner on the table, saving money is a pipe dream. There is nothing left to save. So these families are vulnerable to any unexpected expense—a car repair, an uninsured illness, even an unexpectedly high utility bill can be enough to plunge them into debt or worse.

For obvious reasons, families falling into this category struggle to find the time and energy to participate in civil society, or to engage in the kinds of information-gathering necessary to create informed voters. Financial poverty is all too often so overwhelming a challenge that the other “riches” that most of us take for granted–social, civic, intellectual–are simply beyond reach.

The United Way report was updated in 2016 and again in 2018. It probably won’t surprise you that ALICE’s situation didn’t improve. In 2018, I wrote

As the researchers point out, traditional measures of poverty don’t capture the real picture–the number of people who are struggling financially because the actual cost of life’s necessities where they live is more than they earn.

Indiana, for example, has 2,530,581 households. Thirteen and a half percent of those households fall below the official poverty line–but another 25.2% fall between the poverty line and the ALICE threshold. That’s 38.7% of Hoosiers who face a constant, debilitating struggle for economic survival….

The stress experienced by impoverished and ALICE families isn’t just financial: struggling people live in poorer neighborhoods that are less safe and less healthy. They lack the time and resources that permit other citizens to participate in civic and political life–and as a result, their voices aren’t heard–or their needs considered– in most public policy debates.

As the ALICE reports have emphasized, ALICE folks are in large part the workers that we more privileged folks rely upon for a multitude of essential services. Evidently, we aren’t willing to pay a living wage to the people who provide those services. (There’s a parallel here with our unwillingness to pay taxes adequate to support the public services we demand.)

The irony is, we pay in other ways. As the ALICE reports and the  Business Journal series document, there are significant social costs to a system that leaves so many hard-working people behind.

Dismissing the struggle of ALICE families as a consequence of laziness or lack of ambition is a sign of moral obtuseness–when it isn’t intentionally self-serving. When you tell people to pull themselves up by their bootstraps, you should probably check to see if they have any boots.

The Capital Chronicle found that Hoosier families struggling to make ends meet are “neither a small nor a marginal group, but rather represent a substantial proportion of households in the state”… More than one in four Indiana households lacks enough income to meet basic needs.

Meanwhile, we punish poverty. Effective state and local tax rates start at 11.4 percent for the poorest 20 percent of Americans, fall to 9.9 percent for the middle 20 percent, and then decline to 7.4 percent for the top 1 percent.

After all,  ALICE folks can’t afford lobbyists.

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Public Schools And Parents

When the movement for school vouchers first began, proponents insisted that a “free market” in education would improve outcomes–that children no longer confined to those failing “inner city” schools would emerge better-educated. They tended to ignore pesky concerns about transportation, fly-by-night “education entrepreneurs” and the inconvenient fact that public schools serving rural folks who had no private options were losing resources so that urban kids could attend primarily religious schools.

As the years went on, numerous credible research projects showed that the magic of the market had unaccountably failed. Voucher students not only didn’t perform better, they mostly lagged behind their public-school peers.

That was inconvenient, but the intrepid opponents of American public education weren’t about to let a little thing like poor educational outcomes keep them from realizing their goals: destroying teachers’ unions, evading Separation of Church and State, and enriching donors from the for-profit education sector. So proponents pivoted from test scores to the horrors of “woke” instruction: assertions that the public schools were “indoctrinating” children by teaching them accurate history and –horrors!!–letting them read “woke” books.

The battle cry this time was “trusting and empowering parents” whose Christian family values were being undermined. It turns out, however, that a majority of parents are satisfied with their “woke” public schools.

As an article from the American Prospect explains. there was considerable discontent with school closures during the pandemic, and early successes by reactionary parent groups built on that discontent. Then they over-reached.

The new culture war over the future of education is a stalking horse for the same old battle over school choice. The not-too-hidden goal of denigrating public schools is to weaken support for teachers and their unions, and to redirect funds into school vouchers and other programs that pummel public education even further.

Polling conducted by the American Federation of Teachers in mid-December found that the culture-war framing was unpopular. Instead, voters and parents saw strong academic, critical reasoning, and practical life skills as most important, when compared to anti-wokeness. Furthermore, among the sample group, when given the option between improving public education and giving parents more school choices, 80 percent preferred improving public schools. Most revealing was that two-thirds of voters said that culture-war battles distracted public schools from their foremost role: educating students.

The article noted that even some Republican state legislators resist efforts to privatize education.

In Iowa, nine Republicans in the House, and three in the Senate, voted against a bill that would pull $345 million of taxpayer money over a four-year period into family private-school costs. Thanks to the margins in the Iowa legislature, the bill still passed. The state’s education department expects it would include an additional drop of $46 million from public-school funding as a result…

One Iowa Republican who opposed the measure  told the Des Moines Register that he represented a “very Republican, very conservative district” –and that his constituents were opposed to the measure.

The article also referred to the earlier experiment in Kansas under Gov. Sam Brownback that led to a reversal of the cuts and the election of a  Democratic governor now serving her second term.

Diverting resources to voucher and “scholarship” programs has reduced funding for public school teachers, as well as for extracurricular activities, English-as-a-second-language programs, special-education programs, school bus drivers, janitorial services, and coaches. Those cuts most definitely are not in the public interest, nor are they desired by the vast majority of parents.

As NPR has reported:

Math textbooks axed for their treatment of race; a viral Twitter account directing ire at LGBTQ teachers; a state law forbidding classroom discussion of sexual identity in younger grades; a board book for babies targeted as “pornographic.” Lately it seems there’s a new controversy erupting every day over how race, gender or history are tackled in public school classrooms.

But for most parents, these concerns seem to be far from top of mind. That’s according to a new national poll by NPR and Ipsos. By wide margins – and regardless of their political affiliation – parents express satisfaction with their children’s schools and what is being taught in them…

In the poll, 76% of respondents agree that “my child’s school does a good job keeping me informed about the curriculum, including potentially controversial topics.”…

Just 18% of parents say their child’s school taught about gender and sexuality in a way that clashed with their family’s values; just 19% say the same about race and racism; and just 14% feel that way about U.S. history.

Vouchers don’t improve education, and a small minority of parents is dissatisfied with the curricula in their children’s schools. But in Indiana, evidence is irrelevant. Republican legislators are pushing hard to expand an already-generous voucher program.

They need to explain just who they are representing–and why.

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And Then There’s Indiana’s Housing Crisis…

Our Indiana’s legislative overlords concentration on bullying trans kids and impoverishing public education evidently leaves them little time or interest in solving the state’s real problems, like the lack of affordable housing and/or the plight of low-income renters.

As I’ve indicated before, tenants in Indiana have almost no rights and no recourse against bad actor landlords. Indiana law–or really, the lack thereof– is an open invitation to out-of-state buyers of real property, with the result that Indianapolis is now first in the nation for out-of-state ownership of rental property. (In most cities, around 3% of rental properties are owned by out-of-state investors. In Indianapolis, the percentage is 15% and climbing.)

We have an eviction crisis, made more severe by Indiana’s lack of affordable housing. The Greater Indianapolis Multi-Faith Alliance (GIMA) reports that Indiana has a gap of 135,033 rental units affordable for Hoosiers in the bottom 30% of the income distribution. Indiana has the single highest housing cost burden among all Midwest states for those residents.

As a result,many Hoosiers are spending 50-80% of their incomes on rent. One minor emergency – an issue with a car, an emergency room visit, a layoff– can cause a spiral into evictions.

Indianapolis ranks #2 in the country for evictions. Only New York is higher, and costs are a huge factor; Marion County rents have increased an average of 20% since 2020, while wages have only increased by 4%.

As GIMA has reported,  out-of-state institutional investors are drawn to Indiana for its landlord-friendly laws, a situation that doesn’t just hurt renters, but drives up costs for would-be homebuyers as well.

Some other statistics: Sixty percent of rental property owners in Indiana live in Illinois, California, Georgia, Texas, and Florida. Indiana is on track for more than 30% of all residential property purchases to be by investors.  Indianapolis is #1 among U.S. cities for out-of-state corporate investment in real estate. 

GIMA is trying to get legislators’ attention.

It is supporting HB 1005, Rep. Doug Miller’s bill to establish a residential housing infrastructure assistance program and revolving fund. 

Rep. Miller’s bill will be particularly beneficial in rural Indiana, which highlights that this is not an urban, city-focused issue. It affects all of Indiana. Providing state-supported programs to build more housing is critical to stopping the evictions crisis. We would encourage our legislators to take this first, modest step to show the people of Indiana that they come first, that human dignity is a Hoosier value, and that housing is critical to human well-being.

The organization is also supporting SB114., a bipartisan measure sponsored by  Sen. Eric Koch, Sen. Shelli Yoder and Sen. Stacey Donato. That bill was prompted by an incident that received widespread publicity: in February of last year, Citizens Energy shut off the water supply for 868 tenants of Capital Place and Berkley Commons apartments for 21 hours, because the landlord, JPC Charities, owed $1.3m in missed utility payments.

Citizens Energy Group certainly deserves to be paid for its services, but tenants should be able to apply pressure by paying their rents into escrow accounts until the landlord remedies its misbehavior.

As GIMA’s policy paper put it,

This incident highlights the reality that tenants in Indiana have almost no rights, no power, and no recourse from bad actor landlords. It also highlights the impact that out-of-state investment in rental properties is having in our state… This small step will help send a message that Indiana is no longer ripe for “do-what-you want” property owners.

GIMA’s concerns about Hoosier tenants’ lack of legal recourse is shared by State Senator Fady Qaddoura. Last session, Qaddoura introduced legislation allowing renters to put their rent in escrow if a landlord did not make timely repairs to serious problems. He noted at the time that Indiana is one of just a handful of states without some mechanism allowing tenants to withhold payment of rent until repairs are completed.

Qaddoura has reintroduced that measure, together with some additions that would require out-of-state landlords to contract with real estate property managers inside Indiana.

“The philosophy here is that if you live and operate in Indiana, you’re not going to risk the reputation of your business to engage in deceptive practices on behalf of an out-of-state, negligent, corporate landlord,” he said.

Qaddoura also wants to increase state income tax deductions for tenants – currently set at $3,000. 

You would think these bills would pass easily– they simply reflect a fairer balance between landlords and tenants–but this is Indiana, so of course, you’d be wrong. As a friend who knows her way around the Statehouse tells me, the Indiana Apartment Association has ruled with impunity in the General Assembly for decades, and continues to do so. 

The IAA represents landlords–homegrown or not–and couldn’t care less about tenants. Particularly low-income Hoosiers who struggle to pay those escalating rents.

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