1st Amendment Thread

[heydaralon]

While it would be nice to do away with 80% of HR departments in the country, I don’t look forward to attending a mandatory government class on discrimination.

HR is one of the most repulsive and useless appendages of corporate life. They are about as helpful as a case of Hep C. I honestly can't think of a situation that HR did not make worse.

Agreed. Now picture a government HR system.

I'm picturing some kind of DMV/Auschwitz hybrid...

[SuburbanFarmer]

HR is one of the most repulsive and useless appendages of corporate life. They are about as helpful as a case of Hep C. I honestly can't think of a situation that HR did not make worse.

Agreed. Now picture a government HR system.

I'm picturing some kind of DMV/Auschwitz hybrid...

Exactly. As retarded as HR is now, just wait until Uncle Sam gets ahold of it.

[de officiis]

Natural Rights and the First Amendment

Jud Campbell - 127 Yale L. J. 246

ABSTRACT

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one's views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders--immersed in their own constitutional language--silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories--including ones described as "originalist"--might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court's recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering--not crafting--the First Amendment's contours and boundaries.

https://www.yalelawjournal.org/pdf/Camp ... ytucjq.pdf

[Fife]

The Cake Is Just the Beginning

On Tuesday, the Supreme Court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that centers on an anti-gay baker in Colorado who claims a First Amendment right to ignore state law and refuse service to same-sex couples. A key issue in Masterpiece is just how far the court’s conservative justices are willing to go in subverting civil rights law to protect the freedom to discriminate. And during Tuesday’s arguments, Justice Neil Gorsuch proposed a radical new theory that could fatally undermine legal protections for minorities in all 50 states.

Gorsuch’s startling proposal arrived midway through arguments, as Colorado Solicitor General Frederick Yarger defended the state’s civil rights commission. Yarger was attempting to explain why Colorado’s treatment of Jack Phillips, the baker, did not run afoul of his rights to free speech or free exercise of religion. Gorsuch jumped in with “a quick question about the remedy” that Colorado imposed on Phillips after finding that he had violated state nondiscrimination law.

Gorsuch, with a look of grave concern, said:

As I understand it, Colorado ordered Mr. Phillips to provide comprehensive training to his staff, and it didn’t order him to attend a class of the government’s own creation or anything like that, but to provide comprehensive staff training.

Why isn’t that compelled speech and possibly in violation of his free-exercise rights? Because presumably he has to tell his staff, including his family members, that his Christian beliefs are discriminatory.

Yarger, who seemed befuddled by the question, responded honestly, telling Gorsuch that “a training requirement is a common remedy that is used in many civil rights cases.” The justice, however, pressed on.

“But this isn’t attending your training, Mr. Yarger,” Gorsuch said. “This order was ordering him to provide training and presumably compelling him to speak, therefore, and to speak in ways that maybe offend his religion and certainly compel him to speak.”

By this point, Yarger looked genuinely alarmed. And rightfully so: Gorsuch had essentially declared that a law which requires managers to teach their employees about the requirements of nondiscrimination law violates the First Amendment. If that’s true, then a wide range of civil rights law is at least partly unconstitutional. Many of these statutes obligate employers to inform workers of their duties under state and federal law. That includes training on discrimination: Supervisors must instruct employees not to engage in harassment, unlawful refusal of service, and a broad range of identity-based mistreatment.

The courts have long held that the government can prohibit this kind of discrimination in a professional environment—and require private employers to enforce these prohibitions—consistent with the First Amendment. Civil rights laws impose only an incidental burden on expression; their purpose is to guarantee equality in public accommodations and the workplace, not to censor speech. The government is not constitutionally precluded from forcing businesses to maintain policies of fairness and inclusion simply because these rules may compel or suppress expression in a commercial setting.

Gorsuch’s theory would hobble this nondiscrimination regime by preventing the government from directing employers to tell employees about their rights and responsibilities under law. And for good reason: A hotel supervisor who believes that interracial relationships are sinful could refuse to tell her employees that they must let mixed couples book rooms. A restaurant manager with spiritual objections to interfaith marriage could decline to train her employees in their legal duty to serve customers without regard to religion. According to Gorsuch, these employers hold a First Amendment right not “to speak in ways that maybe offend [their] religion.” Thus, they must be excused from telling their employees about civil rights law to which they object.

This same exemption would almost certainly apply in the employment discrimination context as well as in public accommodations. Currently, supervisors open themselves to liability when they fail to educate employees about legal proscriptions on discrimination, including harassment. Gorsuch’s rule would let supervisors ignore these requirements if explaining them would violate their sincerely held beliefs. A manager with misogynistic religious views could therefore refuse to instruct employees to treat their female colleagues equally, citing his beliefs about women’s inferiority. After all, under Gorsuch’s framework, the law is “compel[ling] him to speak” in contravention of his conscience.

As Yarger promptly explained to Gorsuch, this vision of Phillips’ obligation under Colorado law grossly overestimates the burden imposed upon his freedom of speech. “All that is required in these training sessions,” Yarger said, “is a demonstrated understanding of the Colorado Anti-Discrimination Act. It has nothing to do with a particular person’s belief. It has to do with ensuring that the conduct that was found discriminatory.” But that response did not please Justice Anthony Kennedy.

“Part of that speech,” Kennedy asserted, “is that state law, in this case, supersedes our religious beliefs, and he has to teach that to his family. He has to speak about that to his family … who are the employees.”

Finally, Justice Ruth Bader Ginsburg jumped in to save Yarger, telling him: “His belief is his belief. All he has to instruct [his family] is this is what the law of Colorado requires.”

Yet neither Gorsuch nor Kennedy appeared to be appeased. Both justices still seemed to think that Colorado had forced Phillips to spew state propaganda to his family by directing him to implement a nondiscrimination policy. Gorsuch, in particular, gave the impression that he views basic training in civil rights law as a violation of employers’ First Amendment rights. If the court adopts his theory—and it could, given Kennedy’s apparent support—it would not merely undercut LGBTQ protections. Its decision could also sabotage the nondiscrimination protections that have governed American businesses for decades, handing religious employers a tool to flout civil rights law in the name of free speech.

hmmmm..... counterpoint to Slate:

Whether it's Baking or Dating, Consent Matters

This week, the Supreme Court heard the first arguments regarding Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission [2], and as you can imagine, people immediately took to social media in order to voice their opinion on the matter. And if you pay attention to pop-culture and the mainstream news, you’ll find that the majority of those opinions ultimately end up asking “Why not just bake the cake?” After all, how could you favor discrimination if you aren’t racist or prejudiced, right?

Actually, no. As you’ll see, it’s quite the opposite.

While it’s understandable for first impressions to fall prey to the idea that because it involves a gay couple against a business, the natural response should be to back the couple against injustice. This case is not about gay rights, though. Nor is it about freedom of speech or religion, despite what you may hear on the news. This case is about property rights, pure and simple.

Let’s start with the idea of self-ownership, as most people can agree on that sentiment, and it’s not a new concept. Property in the Lockean sense, where you own yourself and, therefore, that which you mix your labor with, dates back centuries. We acknowledge that as the rightful owner, you may choose what to do with your property as well.

The most obvious example is in the selection of a sex partner, romantic partner, or marriage partner. In the case of women especially, we emphasize — rightly — that consent is critical in these matters if we are to respect a person's ownership of her own body.

What one does with one's body matters outside of romantic relationships also. Consent must be required for those activities as well.

But what exactly is consent?

The answer seems obvious enough, consent involves giving permission for something. But what is often overlooked, and pertinent in this case, is the question of where consent draws its value. The answer is in the capacity to withdraw it. For example, the consent a woman gives to an intimate partner has value precisely because she could’ve said no. This distinction is highlighted in cases involving alcohol, where we often point to the fact that the woman “couldn’t consent.” Which most people wrongfully conclude to only mean she couldn’t say yes, instead of also realizing the importance her inability to say no plays as well. Likewise, the idea of labor is no different. Asking someone to help you in the form of giving you their labor and the products thereof requires consent, which means the ability to say no. When consent is not present, what we’re talking about is quite literally forced labor, or worse.

Which leads me to point out just how baffling it is to see that people aren’t immediately appalled by the idea of a government stepping in to overrule a person's consent. However, given that the state is itself an entity that operates outside the confines of civilized consent and relies on violent coercion to gain "consent," we should not be surprised. After all, states have never been friends of consensual activities, including state support for slavery, military conscription, and taxation.

Now, there’s a good case to be made that certain types of discrimination — such as racism and sexism — are detrimental to the quality of life in a civil society. It is far less clear, however, that states should be empowered to be the final arbiters as to whether or not one's discrimination in any given case is the good kind of the bad kind. Should the state decide "bad discrimination" has been employed, the state then abolishes free consent through its usual means of coercion: fines, lawsuits, and even imprisonment.

Totally abolishing discrimination, of course, would be impossible. Discrimination in and of itself is not inherently bad, but rather a natural occurrence. As buyers, we discriminate against sellers regularly, choosing to exclude some while patronizing others based on certain criteria. Every decision to buy something in any given moment requires not buying something else. One of the great things about the market is the influence each of us holds through our ability to “vote” with our dollars regarding business practices we deem acceptable or not. Without the capacity to discriminate, thus requiring sellers to obtain our consent in transactions, not only would we kill the internal efficiencies of the market, but we’d also become entrenched in a complete state of totalitarianism, void of any value for consent.

When it comes to someone’s personal beliefs, whether religious or otherwise, what we should do instead is practice tolerance [3]. This doesn’t always mean we have to agree with someone, but we should always value their consent, and not violate their choices just because we disapprove, whether through government edict or not. Instead, let’s recognize that discrimination can be used as a solution. By a business spitefully discriminating against potential customers, they hurt their own chances of remaining in the market due to consumers having the ability to discriminate as well by simply shopping elsewhere. Combining that realization with the motive to avoid social ostracism by the community, and we see both buyers and sellers have an active incentive not to discriminate with malicious intent. And since the advent of the internet, the claim of having no alternative sellers (which has always been alleviated through market solutions [4]) has been made almost completely irrelevant. With most modern monopolies being perpetuated by legislative authority, not solved by it.

Furthermore, with all the allegations of sexual misconduct recently circulating politics and pop-culture, we should seriously consider how we view consent of the individual as a culture before disregarding its value in other areas for the “greater good” of society. So then, we must ask, why not bake the cake? Simply put, because civil society ought to be in the business of upholding the importance of consent, protecting the right to self-ownership and defending the minority from exploitation, which are all principles we should be able get on board with. And when it comes to minority populations, the smallest among us will always be the individual.

Go-Go-Justice Repo Man!

[Fife]

Here's an interesting one to watch: Minnesota Voters Alliance v. Mansky


SCOTUSBlog: Argument analysis: Justices debate decorum, line-drawing and “political” apparel at the polls

When Andy Cilek went to his local polling place in Hennepin County, Minnesota, to vote, an election worker told him to cover or take off his T-shirt, which bore both the Tea Party logo and the message “Don’t Tread on Me.” Cilek, the worker said, would have to do the same for his “Please I.D. Me” button, often worn by opponents of voter fraud. The authority for the worker’s request was a Minnesota law that bans political badges, buttons and other “insignia” at polling places on election days. Cilek and the Minnesota Voters Alliance, a group that he helped to start, filed a lawsuit challenging the state’s ban on “political” apparel as a violation of the First Amendment. Minnesota counters that the law is simply intended to maintain an “orderly and controlled environment” at the polls, and some justices appeared to agree with that. But other justices seemed to strongly support the challengers, while the rest didn’t clearly tip their hand.

See some interesting questions from Justice Alito and mumbly answers at this tweet: https://twitter.com/HashtagGriswold/sta ... 6453189632

[de officiis]

SJC to hear landmark Michelle Carter texting suicide appeal

Bob McGovern - 3/15/18

{Boston, Mass.}

The state’s highest court has agreed to consider the controversial texting suicide case of Michelle Carter, in a landmark move that will decide whether words alone are enough to convict someone of involuntary manslaughter.

...

“(T)his appeal presents novel questions of constitutional and criminal law,” Carter’s attorneys wrote in an appeal to the Supreme Judicial Court, the Herald reported earlier this month. “It will set precedent for who may be prosecuted for encouraging suicide with words alone.”

Carter was given a 2 1⁄2-year jail sentence, with 15 months to serve, last summer after Judge Lawrence Moniz found her responsible for Conrad Roy III’s July 2014 suicide. According to evidence presented by Bristol prosecutors, Carter encouraged Roy to kill himself through texts and phone calls and told him to “get back in” his truck as it filled with deadly carbon monoxide fumes.

...

“Carter is the first defendant to have been convicted of killing a person who took his own life, even though she neither provided the fatal means nor was present when the suicide occurred,” Carter’s attorneys wrote.

...

Carter’s lawyers urged the SJC to take the case because, they contend, convicting someone of involuntary manslaughter for encouraging another person to commit suicide “with words alone” violates the First and Fifth Amendments.

They added that Moniz convicted her under a form of involuntary manslaughter that was not in the indictment. Carter’s attorneys also argue that she was improperly charged as a youthful offender rather than as a juvenile. Under state law, they say, there was “no evidence that Carter ‘inflicted’ any harm on Roy,” and therefore she should have been charged as a juvenile.

Bristol prosecutors, in response to Carter’s petition, argue that Moniz applied the involuntary manslaughter law correctly. Prosecutor Shoshana E. Stern also wrote that Carter was properly charged under the youthful offender statute and that the SJC already addressed that issue when it first took up Carter’s case in 2016.

[DBTrek]

Schools not that interested in the 1st Amendment when it strays into non-doctrinal territory:
https://reason.com/blog/2018/03/15/nati ... rtion-guns

[Speaker to Animals]

We need to shut down the government schools. This is fucking crazy.

[Fife]

Sobering.

Trump's Anti-Speech Agenda Gets a Boost From Lefty Lawyers and Academics
Declining support for unfettered debate among politicians, academics, and the public doesn’t bode well for the future of free speech.

It may not yet be "the end of free speech," but that particular fundamental right is probably a bad candidate for a new life-insurance policy.

We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it's used by the "right" people for their favored goals, and the country's leading civil liberties organization is suffering an internal revolt by staffers who oppose "rigid" support for free speech protections.

[DBTrek]

The ACLU is now on the side of "Consequences for free speech are now anti-free speech".

LAS VEGAS - Last week, Noah Christiansen walked out of school, along with thousands of other students across the country, as a part of the nationwide protest to bring about gun control legislation. During those 17 minutes out of class at Robert McQueen High School in Reno, he called the office of his congressman - Rep. Mark Amodei, R-Nev. - to urge him to do his part and got a staff member on the phone. Christiansen made his case and, in a moment of frustration, he used an expletive. Yes, it was the big one. No, the staffer didn't like it.

A few hours later, Christiansen learned he'd been suspended for two days. "For being disrespectful and insubordinate," he said by phone Monday from Reno. Turns out, Amodei's staffer had contacted the school to tell the principal about Christiansen's choice of words.

The American Civil Liberties Union of Nevada wrote a letter to the school asking that the suspension be scrubbed from his record and that Christiansen be reinstated as student body secretary-treasurer, arguing the discipline violated Christiansen's First Amendment rights. . . .

https://www.msn.com/en-us/news/us/pro-g ... spartanntp

Where was the ACLU on that last article where the teacher got suspended for asking if the school administration would support a walk-out for the pro-life agenda?

I guess only some punishment/consequences are anti-1st Amendment to the ACLU.