Guest Post: The Freedoms at Stake in the Gay Wedding Cake Case

by Marian L. Tupy

On December 5, 2017, the Supreme Court of the United States heard the case of Masterpiece Cakeshop v Colorado Civil Rights Commission. It’s a case that raises important questions about freedom of speech and of association that even the most fervent supporters of equality for gay people ought to take to heart.

In July 2012, Charlie Craig and David Mullins, a same-sex couple, visited Masterpiece Cakeshop in Denver to order a custom wedding cake to celebrate their nuptials. Jack Phillips, the shop’s owner and a practicing Christian, was happy to sell the couple any of the goods in the store, but he refused to create a bespoke cake for a gay wedding, arguing that it would contravene his religious beliefs.

Craig and Mullins bought their wedding cake from a different bakery and went ahead with their happy event. The couple also filed a complaint with the Colorado Civil Rights Commission that oversees the enforcement of the Colorado Anti-Discrimination Act – a law prohibiting businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation.

A lower court ruling decided in favor of the plaintiffs. The bakery was ordered to provide cakes for same-sex marriages and to “change its company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers”.

The Cato Institute, where I work, has been at the forefront of the fight for gay equality, submitting amici curiae briefs in favor of the gay community in such ground-breaking cases as Lawrence v Texas, which decriminalized sodomy in the United States in 2003, and Obergefell v Hodges, which legalised gay marriage throughout the country in 2015. In Masterpiece Cakeshop v Colorado Civil Rights Commission, we have taken Phillips’s side.

There is no inconsistency here. Just as we would support a gay baker’s right to decline to convey a homophobic message, we support this Christian baker’s right to decline to celebrate a same-sex wedding. That is because Masterpiece isn’t really about religious liberty – apart from claims that the Colorado Civil Rights Commission itself treats the religious and nonreligious differently, something that concerned the swing Justice Anthony Kennedy at oral argument – but about freedom of speech.

As my learned colleagues wrote, the Supreme Court has repeatedly held “that what the First Amendment protects is a ‘freedom of the individual mind’, which the government violates whenever it tells a person what she must or must not say. Forcing a baker to create a unique piece of art violates that freedom of mind…

“Although making cakes may not initially appear to be speech to some, it is a form of artistic expression and therefore constitutionally protected… Indeed, the Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to this sort of baking – even if it’s not ideological and even if done to make money.”

No matter which side wins, the final decision in Masterpiece Cakeshop v Colorado Civil Rights Commission is likely to reverberate for many years to come. That’s because the case does not deal with government discrimination, which everyone abhors, but with private discrimination, which is, in some fashion, unavoidable. Each day, all of us discriminate against things (which car to buy), actions (where to eat) and people (who to go out with).

The law says that private discrimination is fine so long as it does not involve a business, which ought to be open to everyone. That’s a perfectly fine legal distinction, but not a logical or moral one. Consider the following scenario:

Suppose that you operate a private dining club – such as the one described by Dana Bate in her superb 2013 book Girls’ Guide to Love and Supper Clubs. You rent a space where you can indulge your passion for cooking and choose from a list of paying gourmands in accordance with your preference for, exempli gratia, straight people. Is that discrimination? No court has ruled so. Yet, Bate’s supper club is basically a business, except for incorporation. Were you to incorporate, you would be guilty of discrimination. Without it, you are free to do as you please.

So, private discrimination is not cut and dried. As one of the pioneers of gay marriage, the British-born writer Andrew Sullivan, noted, advocates of gay equality ought to acquire some perspective. “I think it was a prudential mistake to sue the baker,” he wrote. “Live and let live would have been a far better response.” That’s where Cato stands as well.

Reprinted from CapX.

Marian L. Tupy is the editor of HumanProgress.org and a senior policy analyst at the Center for Global Liberty and Prosperity.

This article was originally published on FEE.org. Read the original article.

Guest Post: Anti-Trump backlash gags free expression at universities

James Turk, Ryerson University

We are living in difficult and worrisome times.

There has been a resurgence of racism, misogyny, anti-Semitism, Islamophobia and nativist nationalisms in many parts of the world — including Canada.

This renaissance of hate has been intensified by the actions of Donald Trump before and after his election. Fortunately, many have responded against the hate. For some, regrettably, part of that response has been to call for suppression of free speech.

As the director of the Centre for Free Expression at Ryerson University, I was deeply troubled when Ryerson recently decided to cancel a panel discussion whose topic, ironically, was to be “The Stifling of Free Speech on University Campuses.”

The panel discussion — scheduled to include University of Toronto psychologist Jordan Peterson and former Rebel Media journalist Faith Goldy — was not a march riddled with Klan and neo-Nazis. It was a group of three conservative academics and one right-wing journalist whose ideas are odious to many people, including me. But then, my ideas are likely odious to them.

The security excuse

Free speech wall in Charlottesville, Virginia

The university said it cancelled the event after a security review concluded it was “not equipped to provide the necessary level of public safety for the event to go forward.” The violent confrontation and deaths in Charlottesville may have both spooked Ryerson officials and made their decision seem prudent to many.

Opponents of the planned panel contributed to the fears — with their Facebook page headlined “No Fascists in Our City” adorned initially with a photo of a crossed-out swastika and a call for mass turnout to stop the panel. “This shit stops now. Either you’re with us or you’re not….”

In cancelling the event, Ryerson gave in to intimidation, prevented a panel discussion of difficult ideas and disagreement over deeply held views, and denied free speech rights to those with opposing views.

Part of freedom of expression is the right to dissent, protest and criticize, but that right does not extend to intimidation, harassment or violence that denies others their free speech rights.

Differences of views are the lifeblood of any university and essential to the mission of advancing knowledge and educating students. Most universities even have statements of principle that guarantee and support free expression.

Depriving views

Yale University’s statement says “to curtail free expression strikes twice at intellectual freedom, for whoever deprives another of the right to state unpopular views necessarily also deprives others of the right to listen to those views.”

The University of Toronto’s statement of purpose guarantees the “rights of freedom of speech, academic freedom, and freedom of research. And we affirm that these rights are meaningless unless they entail the right to raise deeply disturbing questions and provocative challenges to the cherished beliefs of society at large and of the university itself.”

Ryerson’s decision to cancel the event violates its own Freedom of Speech policy which states:

“Ryerson does not avoid controversies, difficult ideas, or disagreements over deeply held views. When such disagreements arise within the University or within a broader social context, the University’s primary responsibility is to protect free speech within a culture of mutual respect. The right to freedom of speech comes with the responsibility to exercise that right in an atmosphere free of intimidation and in an environment that supports the free speech rights of those with opposing views.”

This is not a new issue. During the anti-Communist hysteria of the McCarthy period in the 1940s and early ‘50s, many universities abandoned their commitments to academic freedom and freedom of expression. Loyalty oaths were imposed on faculty and many professors accused of being Communists were fired.

The then-president of Yale University, Charles Seymour, famously said in 1949: “There will be no witch hunts at Yale because there will be no witches. We do not intend to hire Communists.”

In her book No Ivory Tower, Ellen Schrecker summarized the role of the universities during this period: “In its collaboration with McCarthyism, the academic community behaved just like every other major institution in American life. Such a discovery is demoralizing … . Here, if anywhere, dissent should have found a sanctuary. Yet it did not.”

Cowardice and complicity

That harmful legacy of university cowardice and complicity took years to overcome. We need to remember this past if we do not want to relive it, albeit in the name of new passions and different ideologies and concerns.

Instead, it appears as if we are starting down a dark road that threatens the raison d’être of the university and the fundamental rights to freedom of expression guaranteed by Canada’s Charter of Rights and Freedoms.

If standing by its principles requires a university to make a greater investment in security personnel to protect freedom of expression, that must be seen as a proper cost of doing business.

If threats continue to blossom, then there needs to be discussions with governments to ensure universities have the additional financial resources to ensure free expression does not fall victim to intimidation.

Not only are censorship and suppression fatal to the purpose of the university, they undermine the foundation of democratic society.

When individual rights to freedom of expression are diminished or taken away for an allegedly good cause, they are necessarily invested in some higher authority that is given the right to determine what is acceptable.

The result is censorship from above — ultimately the state — with the likelihood that the champions of that censorship today are its vulnerable targets tomorrow.

James Turk, Director, Centre for Free Expression & Distinguished Visiting Professor, Ryerson University

This article was originally published on The Conversation. Read the original article.

Guest Post: Your Free Speech Is More Important Than My Feelings

by Tricia Beck-Peter

The first time I felt threatened by someone else’s free speech, I was a freshman in college. My college was plagued by a young man who would stand outside the library and use the word of God to belittle and harass students, especially young women.

Once every few months, this man would show up to call us adulterers, witches, sluts, and sinners while professing to represent a religious viewpoint that enriched the lives of many of my classmates.

When he turned to me I was wearing a skirt, a turtleneck shirt, and leggings that covered any exposed skin of my legs. He decided that even this relatively chaste outfit was reason enough to condemn me. Emotion welled up within me- fear, yes, but mostly a desire to fight this terrible man. I could see that my classmates, especially my gay and lesbian classmates, felt unsafe around him.

We wanted him off our campus, and so we protested. Theology students grabbed their Bibles and yelled counterpoints to his scripture. LGBT couples openly displayed their affections as a way to fight hate with love. And me? I checked out the first Harry Potter book and read the first chapter aloud to the crowd loud enough to drown him out. I lost my voice for a week.

An hour into the counter protest, the police were called. We begged them to remove the man from the premises. They looked apologetic but informed us that the sidewalk we were standing on was public property even though it ran through the campus. Therefore, this man was protected by free speech laws.

This Was "Hate Speech"
I believed in free speech in theory, but not for this guy. This guy was attacking students verbally on a place where they deserved to feel safe. His words made us feel angry, hurt, less than human. His words were damaging. How could they be protected?

For years, I campaigned for the college to privatize that sidewalk to protect our students from this monster. While I was campaigning, I spoke to a fellow economics student. He begged me to reverse my position.

I had no intention of giving this up. Time and time again, my friends and I had been called every nasty name in the book for the crime of being women in shorts in the Florida heat. I had no intention of backing down, until this student made a point that stuck with me.

What if one day, we needed to protest the administration?

My administration was fairly competent, but they had botched an on-campus sexual assault case the year before. What if they did it again? What if we lost the one place on campus where our free speech was more important than their feelings?

The Student Government charter was written in such a way as to give no power to the students to challenge the administration. There was no formal process by which we could change the institution from within. Without that sidewalk, we would be powerless if the tables should turn.

Yesterday, Today, and Tomorrow
The point of free speech is to rebel when those with more power are wrong. Abolitionists needed free speech. Suffragettes needed free speech. Civil rights activists needed free speech. While today we applaud all of those movements, in their day they were considered radical loonies that should be silenced. Sometimes the right thing is unpopular and the right people have less power. Sometimes, the good guys are the minority.

That hate preacher was wrong to attack the character of strangers. I do not believe the tide will ever turn so thoroughly for me as to see him as anything more than mean-spirited and cruel. But the same laws that protected Martin Luther King protect him. The First Amendment will be rendered impotent when we pick and choose who it protects. As much as I despise that man, his free speech is more important than my feelings.

Your free speech is more important than my feelings. Your right to say whatever you want is more important than my right to feel safe. Your right to be awful is more important than my right to feel accepted. Your right to condemn my choices is as sacred as my right to make those choices.

It is not fun to prioritize the rights of strangers, whose words upset us over our comfort. It is, however, necessary. One day, you may need that same right to do good in this world. Therefore, we cannot suppress the right of others to challenge our beliefs. We can only work to advocate for ideas that are better than those that advocate for hate and destruction because, in the long run, good ideas win.

Tricia Beck-Peter is a graduate of Flagler College, with a B.A. in Economics and a minor in International Studies. She serves FEE as our Outreach Associate, and deals primarily with alumni relations and the Campus Ambassador program. When Ms. Beck-Peter is not in the office you can find her swing dancing, enjoying fine gins, or binge-watching The Gilmore Girls on Netflix.

This article was originally published on FEE.org. Read the original article.

From the Archives: Porn king Larry Flynt defends free speech in Charlottesville

Porn king Larry Flynt defends free speech in Charlottesville
November 6, 2011 9:24 PM MST

Self-described smut peddler and free speech advocate Larry Flynt appeared at the Virginia Film Festival in Charlottesville on November 4 to discuss the 1996 Milos Forman-directed film based on his life, The People vs. Larry Flynt. The screening was sponsored by the Thomas Jefferson Center for the Protection of Free Expression.

Flynt had earlier spoken at the University of Virginia in November 2000 with his friend and courtroom adversary, the late Jerry Falwell, as part of a lecture tour in which they talked about the landmark U.S. Supreme Court decision, Hustler Magazine v. Falwell (1988), in which a unanimous court upheld Hustler’s right to engage in political parody even if the object of that parody (Falwell) had hurt feelings as a result.

That case originated after Hustler, one of many adult publications operated by Flynt, had run a satirical advertisement for Campari in which Falwell allegedly endorsed the liqueur and revealed that his first sexual experience was in an outhouse with his mother. Falwell sued for libel and lost, but won damages in a Roanoke federal court for “intentionally inflicted emotional distress.”

‘One Nation Under Sex’
After the film and discussion, Flynt autographed copies of his new book, One Nation Under Sex, for about 100 fans. The book, coauthored by David Eisenbach, looks at American history through the prism of the sex lives of presidents and first ladies.

As the crowd dispersed, Flynt answered questions posed by reporters from radio station WINA and the Charlottesville Libertarian Examiner.

Noting that many people yearn for a simpler time when their own moral values seemed to be shared by the rest of society, Flynt said that “nostalgia affects people usually in a very positive way but the world goes on.”

What needs to be understood, he said, is that “the big thing is, you’ve got to accept the rights of other people. We pay a huge price in this country to live in a free society and we’ve got to tolerate things that we don’t necessarily like so we can be free.”

Reconciling religion with freedom
Flynt added that “unfortunately, my friend Jerry Falwell never seemed to be able to reconcile the Bible with people who wanted more individual freedom.”

Larry Flynt

Supporting the idea of moral values is fine, he said, “if they work for you or your family, but if they don’t, you should not seek to impose your values on other people.”

While Jerry Falwell is dead, his son continues to run Liberty University in Lynchburg, but Flynt is not impressed with that institution’s legacy or mission.

“I know that whole family,” he said. “I’m not looking to pick a fight with them [but] they bring people like Michele Bachmann to the college and the whole nation knows about it.”

Flynt chuckled and then trailed off as he shook his head ruefully: “If they’re holding Michele Bachmann up as an example of greatness, she makes people who find Sarah Palin challenging…”

Flynt’s dismissive tone indicated he does not hold either Bachmann or Palin in high regard.


Publisher's note: This article was originally published on Examiner.com on November 6, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Attacks on free speech provoke author Jonathan Rauch to defend 'liberal science'

Attacks on free speech provoke author Jonathan Rauch to defend 'liberal science'
November 30, 2013 10:17 PM MST


Twenty years after it was first published, a new, expanded edition of Kindly Inquisitors: The New Attacks on Free Thought is now available as an ebook, with an ink-and-paper edition coming out in March 2014.

Jonathan Rauch, the author of Kindly Inquisitors and other books (including Demosclerosis and his 2013 memoir, Denial: My 25 Years without a Soul), spoke recently with the Charlottesville Libertarian Examiner following a panel discussion on freedom of speech at the Cato Institute. He explained what inspired him to write the book in the first place.

When, in the late 1980s, “Salman Rushdie wrote The Satanic Verses and received a fatwa (essentially a death sentence) from Ayatollah Khomeini,” he said, “I thought that the West did not know how to respond to that. It could defend the laws of free speech but it wasn't defending the ideas of free speech. People were saying things like, 'Well, a death sentence on Rushdie is certainly offensive and wrong but Rushdie himself was offensive to Muslims,' and so forth. And I realized that a lot of people didn't understand why we have this idea of letting people say offensive stuff.”

What is 'liberal science'?
One of the concepts Rauch introduces in Kindly Inquisitors is what he calls “liberal science.”

He explained that “most discussions of free thought and speech start and end with the U.S Constitution” but he tries “to go a little deeper and look at society's method for producing knowledge and adjudicating disputes about fact, which is in some ways the most important thing we do” – for instance, disagreements about whether Christianity or Islam is “the right religion.”

Historically, he said, the method of “settling disputes like that was war.”

By contrast, “liberal science substitutes an open-ended, rule-based, social process in which everybody throws out ideas all the time and we subject them to criticism. We kill our hypotheses rather than each other. This turns out both to be spectacularly good at mobilizing intellectual talent to find and promote good ideas and spectacularly good at defusing what otherwise would be political, often violent, conflicts.”

Liberal science, he said, is the term he coined “for the whole intellectual network we have that seeks truth in Western liberal cultures.”

He compares it to two other major social institutions for “allocating resources and adjudicating social conflicts.”

In economics, he said, “market systems are in the business of allocating resources and they use open-ended rules of exchange to do that.”

In politics, he noted, “democracies are in the business of allocating coercive political power and they use the exchange of votes and compromise to do that.”

Parallel to those two systems, he added, “liberal science is in the business of adjudicating questions about who's right and wrong and they use the exchange of criticism.”

These three systems, Rauch explained, “all have in common that it shouldn't matter who you are. Anyone can participate, there's no special authority, and no one gets the final say. No one can stand outside the system and say, 'Here's the final result.'”

The result is “always subject to change. It's a big rolling social consensus.”

Retreat of the ideologues
Since Kindly Inquisitors was first published in 1993, there has been a major, positive change in the intellectual environment, Rauch said.

“In the last twenty years there's been a retreat by active ideologues who favored censorship and speech controls,” he said. Those views have “been replaced with a more refined case that focuses more specifically on how minorities can be hurt when hate speech rises to a certain level of prevalence in society. It's called the 'hostile environment doctrine.'”

In preparing the new edition of his book, Rauch “decided to take a really hard look at that because I think it's right now the biggest and most serious challenge to people like me who advocate very robust freedom of speech.”

He wanted to find out, “from a minority point of view, which is better: a wide open system where people are free to say hateful things about me and often do, or a more controlled system where you've got some people in charge trying to protect me from that?”

His conclusion, “based on the history of the last twenty years for gay rights” is that “there's no contest. We're much better off as minorities when our speech and the other side's speech are [both] protected because we win those arguments, and we're worse off when that process is interfered with.”

The expanded edition of Kindly Inquisitors includes a new foreword by syndicated columnist George F. Will and a new afterword by Jonathan Rauch. It is available now in both Nook and Kindle formats and a print version will be released next year by the University of Chicago Press.


Publisher's note: This article was originally published on Examiner.com on November 30, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Thomas Jefferson Center announces 2010 Muzzle Awards

Publisher's note: This article was originally published on Examiner.com on April 13, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Thomas Jefferson Center announces 2010 Muzzle Awards
April 13, 2010 12:37 AM MST

Each year since 1992, the Charlottesville-based Thomas Jefferson Center for the Protection of Free Expression (tjcenter.org) has presented the "Jefferson Muzzle Awards" to individuals or entities that have most egregiously offended freedom of speech and of expression. For the most part, award winners have been city or state governments or government agencies at every level, from Capitol Hill to school districts.

Today's announcement of the Muzzles coincides with Thomas Jefferson's birthday. He was born near Charlottesville on April 13, 1743.

Top 2010 Winner

The top winner for 2010 is U.S. Representative Alan Grayson of Florida, who tried to get the U.S. Attorney General to prosecute some of his constituents who made fun of him on a web site. Reacting to Grayson's complaint, the Thomas Jefferson Center wrote:

"Rep. Grayson’s urging the U.S. Attorney General to seek a 5 year prison sentence against a vocal critic for minor transgressions that, even if proven, clearly merits censure. The right to criticize public officials without fear of government reprisal is a fundamental component of the First Amendment. As such, elected officials should both expect and tolerate criticism."

Virginia's Winner
Although not as high up on the list, the Virginia Department of Corrections was also a Muzzle Award winner this year.

In this case (ranked ninth on the list of ten top winners), prison officials denied an inmate access to a CD recording of a religious sermon called "Life Without a Cross." The Department of Corrections was criticized by others at the time, including editorial writers for the Charlottesville Daily Progress, but the Thomas Jefferson Center's criticism was sharp:

"...it is difficult to see what purpose is served by a blanket policy censoring all spoken word CD’s while allowing musical CD’s. Indeed, it would seem that many spoken CD’s might better serve to encourage good behavior on the part of prisoners both while they are serving their sentences and after they are released."

The award citation notes that, in the months since this situation came to light, the Department of Corrections has changed its policy but -- as the Muzzle citation notes -- "there is nothing to bind the Department to staying on this course"

Other 2010 Muzzles
Another eight winners were cited as deserving of 2010 Jefferson Muzzle Awards, including the Alabama Alcoholic Beverage Control Board, for censoring a nostalgic label on a wine bottle; the Oklahoma Tax Commission, for barring a driver from purchasing a vanity license tag with the phrase "IM GAY," claiming the words are "offensive"; and the Texas State Legislature, "for "denying motion picture production companies tax breaks if their proposed movies portray Texas or Texans in a negative fashion."

The full list of 2010 winners, plus archives of past Muzzle recipients, can be seen on the web site of the Thomas Jefferson Center for the Protection of Free Expression.

From the Archives: First Amendment attorney Floyd Abrams talks about free speech in Charlottesville

Publisher's note: This article was originally published on Examiner.com on March 22, 2014. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site was scheduled to go dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

First Amendment attorney Floyd Abrams talks about free speech in Charlottesville

Floyd Abrams, an attorney who has argued for freedom of speech and freedom of the press before the U.S. Supreme Court in cases such as Citizens United and New York Times v. United States (the “Pentagon Papers”), came to Charlottesville on March 22 to speak at the Virginia Festival of the Book.

In a panel ostensibly about Abrams' recent book, Friend of the Court: On the Front Lines with the First Amendment, he was quizzed by Ronald L.K. Collins, author of Nuanced Absolutism: Floyd Abrams and the First Amendment, and audience members. Josh Wheeler, director of the Thomas Jefferson Center for the Protection of Free Expression, hosted the panel, which was held in the Charlottesville City Council chambers.

After he had autographed copies of his book for admiring readers, Abrams answered a few questions posed by the Charlottesville Libertarian Examiner.

ACLU evolution
One concern of his is the evolution of the American Civil Liberties Union (ACLU) towards a position that often seems at odds with free speech rather than in favor of it.

The ACLU, he said “is becoming more of a liberal organization – more of a progressive organization – than a free-speech protective one.”

That is not to say, he explained, “that they would not protect, on the face of it, the right of some conservatives who were thrown in jail for speech; they would.”

In “hard areas” such as campaign finance law, however, he said that the ACLU is “too willing to give up speech for what they consider to be other social benefits. I think that they hurt themselves as an institution and limit themselves in terms of serving as a protector of the public when they do so.”

Minority protection
Related to that, Abrams indicated that he agrees with the premise of Jonathan Rauch's book, Kindly Inquisitors (which he said he has not read), that posits that members of minority groups are better off in a robust free-speech regime than in a regime that limits speech for the purpose of protecting those same groups.

Minority groups, Abrams said, or “people who are weaker than stronger are the people who generally benefit the most from living in a free society and a society in which speech is free.”

While that may not satisfy “people who say, 'but we have some people with more power than other people because of their money,'” he argued that “anytime we cut back significantly on speech, the people who tend to get hurt most, if not first, are people without rather than with power.”

Tillman Act
With regard to campaign finance law, Abrams offered some thoughts on the Tillman Act of 1907, one of the first such laws. The Tillman Act, which banned corporate contributions to federal campaigns, has been criticized by Justice Clarence Thomas, who told Stetson University law students in 2010 that Senator Benjamin Tillman “was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

Abrams said the Tillman Act had “conflicting” aims.

“One was to limit corporate power and corporate control,” but, he added, “the Tillman Act also had significant racist aspects to it,” although it was “basically a reform piece of legislation designed to crack down on corporations.”

Lane v. Franks
Finally, Abrams talked about a free-speech case he is following that he expects to be heard by the U.S. Supreme Court.

“There's one I'm watching very closely,” he said, and he has filed a brief in it, “which is a follow-up to the Garcetti case of a few years ago [Garcetti v. Cebalos, 2006], which basically said, if you work for the government, and you're doing something within the course of your governmental duties, they can fire you for any reason, including your speech.”

The current case, Lane v. Franks, he explained, involves a former government employee in Alabama, who observed a politically-connected person who was being paid for a government job that he did not actually do, and “who revealed the fact that the other person was essentially acting criminally. The other person was convicted, jailed, fined $160,000, and they fired the guy who turned him in.”

According to the First Amendment Coalition, which filed Abrams' brief in the case, Lane v. Franks “tests the limits of the categorical, on-off rule of constitutional interpretation that was applied in Garcetti. We think (hope) that the Court chose to review the Lane v. Franks case to reverse the appeals court and clarify the Garcetti decision in a way that permits First Amendment protection for true speech by government employees, at least in circumstances where the speech serves a public or governmental interest.”

The question raised by this case, Abrams noted in Charlottesville, is this: “Is that really consistent with the First Amendment? Is it really consistent to say that when you tell the truth in court, you can be fired for that? I don't think the Supreme Court is going to say that, but that's one case I'm watching.”

The complete audio recording of this interview with Floyd Abrams will soon be available as a podcast on Bearing Drift radio, "The Score."

SUGGESTED LINKS
 
Josh Wheeler discusses ‘Hustler v. Falwell’ as bulwark for free speech
Porn king Larry Flynt defends free speech in Charlottesville
Attacks on free speech provoke author Jonathan Rauch to defend 'liberal science'
Charlottesville Libertarians celebrate Bill of Rights Day at Free Speech Wall
Charlottesville lawyers compile rules against ‘politically correct’ Xmas

Original URL:  http://www.examiner.com/article/first-amendment-attorney-floyd-abrams-talks-about-free-speech-charlottesville

Recent Articles from Bearing Drift: free speech, marijuana, & domestic spying

As many readers know already, I am a contributor to Bearing Drift, which uses the tagline "Virginia's Conservative Voice."  When I appear on Coy Barefoot's radio show on WCHV-FM, he identifies me as a writer for Bearing Drift as well as for this web site.

I have not previously done a round-up of my Bearing Drift articles but, seeing how I have done the same for Examiner.com, it may be worthwhile to start doing that periodically.

Here are my recent contributions to Bearing Drift, in reverse chronological order, dating to December 2014, with brief excerpts from each.


In Virginia, what's the difference between a barber and a rent-a-cop? (April 30, 2015)

Virginia lawmakers and regulators should be embarrassed.

According to a 2012 report from the Arlington County-based Institute for Justice,

Virginia is the 11th most broadly and onerously licensed state. It has the eighth most burdensome licensing laws, requiring aspiring practitioners to pay $153 in fees, lose 462 days — more than 15 months — to education and experience and take one exam. Sixteen of the 46 low- to moderate-income occupations Virginia licenses are commercial construction contractors and account for much of the state’s ranking.

A 2015 study from the liberal Brookings Institution notes that more than 20 percent of Virginia jobs require either licenses or certifications by the state...

24th annual Jefferson Muzzle Awards announced tonight (April 20, 2015)

We all recall Thomas Jefferson’s quip: “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” No doubt, if Jefferson were alive today, he would include blogs as well as newspapers — and perhaps even cheekily elevate blogs above newspapers.

Each year the Thomas Jefferson Center for the Protection of Free Expression celebrates its namesake’s birthday by awarding the Jefferson Muzzles to malevolent or stupid government officials or agencies that violate the spirit and the letter of the First Amendment by preventing or punishing speech.

Conservative movement co-founder Stan Evans passes away (March 3, 2015)

M. Stanton Evans, one of the founders of the modern conservative movement, has died at 80. Evans was a Loudoun County resident but was better known for his involvement in national politics than Virginia affairs.

Evans graduated from college in 1955, after helping organize what became known as the Intercollegiate Studies Institute, still the largest conservative organization serving university students with intellectual ammunition.

For 60 years, Evans worked alongside William F. Buckley, Jr., Barry Goldwater, Ronald Reagan, and others in building the conservative movement and giving it its strength and character. He was “present at the creation” by drafting the Sharon Statement, which was the founding document of Young Americans for Freedom (YAF) and animated the conservative movement for 40 years or longer.

NPR interviews Del. Rich Anderson about privacy concerns (February 23, 2015)

Anderson explained his concerns about how police are able to take “thousands and thousands of photographs” of license plates “every hour.” By piecing that information together, he said, “they are certainly able to determine the whereabouts, the habit patterns, the associations, the interests, and all those sorts of personal things that, I think, most American citizens would rather be protected.”

He said the use of license plate readers “creates an ill-at-ease sort of response among the many citizens with whom I have spoken. It’s just an inherently American quality that we have an expectation of privacy.”

Anderson noted that he had patroned a bill this year that limits the period of time law enforcement can keep the data collected by license plate readers.

Poll shows majority of Virginians favor marijuana law reform (January 28, 2015)

It’s noteworthy that even “self-identified conservatives and Republicans” support legalizing medical marijuana. Question 23 of the survey, which asks about decriminalization in general, shows that 54 percent of conservatives and 52 percent of Republicans support the idea.

Four years ago, former Delegate Harvey Morgan (R-Gloucester), a retired pharmacist, introduced legislation similar to Ebbin’s bill. The effort failed but Morgan told me at the time that “almost everyone thinks it’s the right thing to do. Many people say legalize it and tax it” in addition to decriminalizing it. He added that he foresaw wider support emerging because “the cost — not only to the individual but the cost to our court system — is unbelievable with marijuana enforcement.”

Two years ago, while he was running for governor, former Attorney General Ken Cuccinelli also expressed interest in the federalism implications of states’ decriminalization efforts.

Jim Gilmore for President? (January 25, 2015)

Former U.S. Senator Jim Webb is not the only Virginia politician exploring a possible presidential bid in 2016. Former Governor and Attorney General Jim Gilmore (also a U.S. Senate candidate in 2008) was in Iowa this weekend doing all that one expects from a potential candidate — especially seeking out opportunities to talk to national news media.

Governor McAuliffe's voting machine proposal needs rethinking (December 22, 2014)

Sunday’s Richmond Times-Dispatch carried an op-ed piece of mine in which I take issue with Governor Terry McAuliffe’s recent proposal to provide $28 million in funding to Virginia counties and cities to buy new, up-to-date voting equipment — on the condition that all the localities buy the same hardware and software.

I argue that election security and protection against fraud is better served when each locality can purchase its own equipment, based on its own assessment of the needs of its voters and the capabilities of its election officials. A variety of voting systems is a deterrent against those who seek to alter the results of elections by hacking into the machines.

Congress votes to expand domestic spying powers (December 11, 2014)

Only two members of Virginia’s delegation in the U.S. House of Representatives voted against the Intelligence Authorization Act for fiscal year 2015, which includes a provision to expand the executive branch’s authority to spy on American citizens and to monitor our communications.

The two Virginia representatives who voted to protect citizens’ privacy were Dave Brat (R-VA7), the state’s newest Member of Congress, and Morgan Griffith (R-VA9, in photo).

The provision to expand communications surveillance authority was inserted by Senate Democrats and discovered at the eleventh hour through the due diligence of Representative Justin Amash (R-Mich.), who warned his colleagues about it in a letter circulated shortly before the bill came to a vote.

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Flag Day Flashback: Does the U.S. Flag Merit Special Protection?

Today is Flag Day, and thus an appropriate time to revisit an article I wrote almost 15 years ago about flag desecration.

The context that year was the approval in the U.S. House of Representatives of a proposed amendment to the Constitution that would have forbidden desecration of the American flag. This amendment would have carved out an exception to the First Amendment's guarantee of freedom of speech.

The amendment did not proceed any farther and debate and discussion of this issue has subsided. That does not mean it won't come up again, however.

My piece opposing the flag-burning amendment appeared in the Kansas City Star on Sunday, July 4, 1999.  It was apparently part of a pro-con debate on the op-ed page.  I have no idea who my opponent was that day, or what he said.

Does the flag merit special protection?

No: Flag-burning amendment desecrates the Constitution

On June 24, the House of Representatives approved an amendment to the Constitution saying: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” Now it is up to the Senate to send it to the states for ratification, which requires approval by three-quarters of the state legislatures.

U.S. flag in Washington, D.C.

As we observe Independence Day, it is worth pondering whether such an amendment to the Constitution is good or necessary.

The simplicity of this proposed amendment is beguiling but pernicious. Its essence is to restrict our precious First Amendment freedoms of speech and expression. As repulsive as it may be for citizens to desecrate Old Glory, they have the right to do so in order to express dramatically their views about government policy, American culture or current events. The First Amendment was not designed to protect only popular speech - if it were, it would serve no purpose whatsoever.

In a free society, standards of public morality can be measured only by whether physical coercion -- violence against persons or property -- occurs. There is no right not to be offended by words, actions or symbols. The best response to offensive speech is not punishment by government but more and better speech by concerned citizens.

The restrictive nature of this proposed amendment can be seen in this illustration. Suppose the United States - God forbid - were at war against a foreign adversary. Under the terms of the proposed amendment, it would be acceptable for U.S. citizens to desecrate the flag of our enemy, “Outer Freedonia,” but illegal for citizens (perhaps descendants of Freedonian immigrants) to express their opposition to the war by desecrating the U.S. flag. The imbalance could not be clearer.

U.S. flag in New York

The assertion by proponents of this amendment that flag desecration constitutes “fighting words” -- or speech unprotected by the First Amendment -- leads us down a slippery slope of redefining acceptable political expression to suit the majority's wishes.

Under this amendment, it would be permissible to desecrate a Confederate battle flag, even though that flag is held in high regard by some U.S. citizens. And what about other symbols of our country and its values, such as the Statue of Liberty? Will the First Amendment apply if Lady Liberty is portrayed, say, in an obscene but satirical cartoon?

Some proponents of the amendment, which in fact alters the First Amendment guarantee that ``Congress shall make no law respecting freedom of speech,'' arguing that flag burning and other forms of flag desecration are not speech but actions.

Where is the line between speech and action? The Boston Tea Party was indeed an action: Patriots dumped tons of tea into Boston Harbor while dressed as Native Americans. It was intended and understood to be a powerful symbolic protest against an unwanted tax imposed by the British parliament.

Did American soldiers fight for the flag or for something more?

“The veterans I know didn't fight for the flag, they fought for the things for which the flag stands,” notes Gene Cisewski, chairman of the Liberty Council, which is based in Washington. “That includes freedom of expression.”

Rick Sincere flanked by Soviet and U.S. flags, c. 1984

In his inimitable style, Rep. Barney Frank, a Massachusetts Democrat, made a similar argument during the House debate on the amendment: “We think the danger of discriminatory and arbitrary interference with freedom of expression is so great we'd rather put up with the occasional obnoxious jerk than to empower the government to decide what is acceptable and what isn't.”

Thomas Walls, executive director of the Republican Liberty Caucus, has written: “The United States does not suffer from rampant flag burnings. People have enough respect for the flag to discourage this sort of behavior.” Instead of adopting a flag-burning amendment, Walls asserted, “what needs to be protected from desecration are the principles of freedom our Founders sacrificed so much to establish.”

The flag-desecration amendment apes the laws of countries that do not respect individual freedom or personal responsibility, where criticism of government leaders is a criminal offense. As Cisewski puts it, “This is the same thing Hitler did to protect his swastika. Burning a Nazi flag was a capital offense.”

The U.S. Constitution is far more sacred than any woven symbol of it or our country. We must not allow the Constitution itself to be desecrated by this proposed amendment.

Richard E. Sincere is a member of the national committee of the Republican Liberty Caucus, the organized movement of libertarians within the GOP.

2014 Jefferson Muzzle awards have been announced

Violators of freedom of expression are the "winners" of the 2014 Jefferson Muzzle Awards from the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville. Now in their 23rd year, the Muzzles are announced to coincide with Mr. Jefferson's birthday (April 13).

Josh Wheeler

The ten recipients this year include three educational institutions, three state government agencies, and four federal government agencies. They were announced by the Center's executive director, Josh Wheeler, via a press release on Thursday, April 10.

The awards include implicit criticism of the White House press office for limiting access to the news media to even trivial events and of the Department of Justice for "secretly seiz[ing] dozens of phone records of the Associated Press and falsely label[ing] Fox News reporter James Rosen a criminal 'co-conspirator' in order to obtain a search warrant for the reporter’s phone records and emails."

The National Security Agency (NSA) and Department of Homeland Security are joint recipients of a Muzzle

For causing an online retailer to remove from its website a Minnesota man’s products satirizing various government entities on T-shirts, bumper stickers, and other items. Zazzle.com pulled the items from its marketplace after receiving cease and desist letters from the NSA and Homeland Security. Among the items removed were products featuring a variation of the NSA seal along with the statement “The NSA: The only part of government that actually listens.”

The North Carolina General Assembly police are cited for arresting a reporter who was covering a protest at the state capitol, while the Tennessee General Assembly gets dinged for criminalizing undercover reporting at agricultural facilities.

The Kansas Board of Regents receives a 2014 Muzzle award because

Following controversial statements by a member of the University of Kansas faculty on his personal Twitter account, the Kansas Board of Regents (the governing board of the state’s public universities) adopted a social media policy that allows for the firing of a faculty member for using social media in such a way that “impairs…harmony among co-workers,” or that the university’s chief executive officer deems “contrary to the best interest of the university.”

A Florida high school principal gets an award for cutting off the microphone of a graduation speaker who was stumbling over his words and then denying the student an opportunity to accept his diploma with the rest of the class. His reason? He thought the stumbling was an attempt to go "off script" on the approved text of the speech.

The principal of Pemberton High School in New Jersey wins a Muzzle for censoring two articles in the student newspaper, and then forbidding the same newspaper from publishing an article about censorship.

My favorite 2014 Muzzle concerns a case that received a lot of publicity last September. At Modesto Junior College in California, a student was refused permission to distribute copies of the U.S. Constitution on Constitution Day. Here's the Thomas Jefferson Center's citation:

Campus police confronted Robert van Tuinen outside the student center as he handed out free copies of the Constitution to his fellow students on September 17—Constitution Day. Officers informed van Tuinen that school policy only permitted literature to be distributed within a tiny designated spot on campus, and only then if scheduled several days in advance.

If you missed the widely-distributed video of this incident, here it is:

To hear Thomas Jefferson Center director Josh Wheeler talk about how the Muzzle Award winners are determined, check out this interview on The Score.

Cross-posted from Bearing Drift (April 9, 2014).

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