Commentary Magazine


Topic: First Amendment

Anger at SCOTUS? Liberals v. Constitution

The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

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The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

Of course, it’s not that liberals don’t believe in the Constitution at all. It’s just that they think free speech protections are only somehow relevant to a few specific categories of activity. Liberal jurisprudence has applied First Amendment protections to lots of things that used to be illegal, like flag burning and pornography. They’ve also applied it to activities such as allowing a Nazi march in a heavily Jewish town.

Thankfully, there is also a consensus that the First Amendment clearly applies, as its text indicates, to the right of the press to operate without interference from the government. But, as any media veteran knows, freedom of the press in this country has always meant the right of those who own the press to promulgate whatever views they like. The only way for most of the rest of us to gain some of that same freedom was to pool our money to buy time or space in the media to put forward a different point of view. Though liberal ideologues like Jeffrey Toobin mock the notion that giving money to a campaign is, as Roberts says, “participating in a political debate,” that is exactly what it is. Thus, as Roberts also pointed out in his opinion, the main impact of laws that drastically restrict the ability of individuals to spend money on politics was to disadvantage one group in favor of others.

For liberals, democracy has somehow become dependent on the enforcement of a complex labyrinth of laws first enacted in the wake of the Watergate scandal that have created a bewildering legal landscape for all those who wish to take part in our electoral system. Each new piece of legislation intended to further the principle of good government has created new inequities and anomalies that have further distorted this system to the point where no one but a lawyer who specializes in the field can truly know whether a candidate or campaign has violated them–and even then there is no guarantee that an arbitrary federal prosecution may not ensue. The campaign-finance movement is aimed not so much at the threat from corruption as it is to grant government enormous power over the electoral process. But if the framers of the First Amendment meant anything when they forbade “abridging the freedom of speech,” surely it was to prevent the government from trying to limit political expression.

In his dissent, Justice Stephen Breyer complained that the majority was “eviscerating campaign finance laws.” Though the ruling in McCutcheon was narrow and left standing laws that limit contributions to individual candidates, it may well be that the court will soon take up other related issues as well. But if it does, it will not be because they want to steal from the poor and give to the rich or turn the United States into an oligarchy. It will be because the liberal drive to restrict political speech contravenes basic constitutional principles.

For too long, the courts have let Congress and the growing federal electoral bureaucracy run roughshod over the First Amendment. But contrary to Breyer, “democratic legitimacy” does not rest in allowing the government (which is to say incumbents who always stand to benefit from restrictions that hurt their challengers more than themselves) to distort the electoral process. Democracy means letting everyone speak up, whether we like them or not. It is that prospect that drives liberals crazy. If the Roberts court is bent on preventing them from having their way on campaign finance, the fault lies with not with conservatism or deference to wealth but with the Constitution.

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Campus Israel-Bashers Practice Intimidation, Not Free Speech

The level of anti-Israel hostility proliferating at our universities is hardly any great secret. Yet what to do in the face of this challenge has proven far less apparent. Putting aside the fact that many of the academics quietly, and not so quietly, approve of the actions taken by students seeking to demonize Israel, university authorities tend to be deeply wedded to high-minded notions about not “censoring” the free exchange of ideas. At Northeastern University, however, matters were getting so out of hand that there was no longer any escaping the fact that the kind of intimidation taking place on the campus clearly had nothing to do with legitimate political debate. With the Zionist Organization of America (ZOA) pointing out to Northeastern that Title VI of the 1964 Civil Rights Act protects students from racial and ethnic discrimination at federally-funded educational institutions, the university eventually felt compelled to temporarily suspend the Students for Justice in Palestine group operating on its campus.

Now, however, the activists are appealing that decision in a stunningly cynical attempt to invoke arguments about freedom of expression and open discussion so as to allow them to continue in their harassment of students. The readiness of the most illiberal forces to hijack the liberties afforded by liberal democracy, for no purpose other than to use this freedom against itself, is something that should concern all of us. There is little hope of being able to make Israel’s case fairly to those willing to listen, while open displays of bigotry are being allowed to drown out reasonable discourse and shut down discussion through the tactics of intimidation.

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The level of anti-Israel hostility proliferating at our universities is hardly any great secret. Yet what to do in the face of this challenge has proven far less apparent. Putting aside the fact that many of the academics quietly, and not so quietly, approve of the actions taken by students seeking to demonize Israel, university authorities tend to be deeply wedded to high-minded notions about not “censoring” the free exchange of ideas. At Northeastern University, however, matters were getting so out of hand that there was no longer any escaping the fact that the kind of intimidation taking place on the campus clearly had nothing to do with legitimate political debate. With the Zionist Organization of America (ZOA) pointing out to Northeastern that Title VI of the 1964 Civil Rights Act protects students from racial and ethnic discrimination at federally-funded educational institutions, the university eventually felt compelled to temporarily suspend the Students for Justice in Palestine group operating on its campus.

Now, however, the activists are appealing that decision in a stunningly cynical attempt to invoke arguments about freedom of expression and open discussion so as to allow them to continue in their harassment of students. The readiness of the most illiberal forces to hijack the liberties afforded by liberal democracy, for no purpose other than to use this freedom against itself, is something that should concern all of us. There is little hope of being able to make Israel’s case fairly to those willing to listen, while open displays of bigotry are being allowed to drown out reasonable discourse and shut down discussion through the tactics of intimidation.

The kinds of activities engaged in by SJP at Northeastern are shocking to say the least. As well as storming a Holocaust commemoration event and vandalizing the statue of a Jewish donor to the university, the group’s faculty advisor M. Shahid Allam told members that they should consider being called anti-Semites a badge of honor and boasted that their tactics had helped make pro-Israel students feel too afraid to speak out. Under pressure to be seen to be doing something about all of this, the university authorities attempted to engage with SJP in an effort to have them tone down their tactics. Yet, during this year’s anti-Israel “Apartheid Week” SJP posted mock eviction notices under the doors of student dorms, telling them that this is what Israel does to Palestinians. When Northeastern’s Hillel put out an online message trying to reassure Jewish students, SJP saw fit to mock this too. That was the final straw provoking the temporary suspension.

The activists in question are now attempting to fight the suspension by invoking the most disingenuous arguments about the First Amendment and the importance of free discussion. The Jewish leader and spokesperson for Northeastern’s SJP group, Max Geller, has been at the forefront of speaking out against the suspension. During an interview with Democracy Now’s Amy Goodman, who was eager to emphasize Geller’s Jewishness, the talk was all about how Jewish students identify with universal human rights and equality. Geller claims that he is “troubled” by attempts to stifle debate of the “Israeli-Palestinian question.” According to him his activities are just about helping students make “informed decisions,” claiming that it is actually his group’s “viewpoint” that is being demonized.

Yet, this peace and love act couldn’t be more cynical, for Geller himself cuts a pretty macabre figure. This student’s apparent affinity with the most murderous forms of anti-Semitic terrorism is truly chilling. As well as having been photographed in the West Bank posing with a PK-class machine gun and sporting a bullet-belt strung around his neck, Geller has attended demonstrations and campus wearing an Islamic Jihad headband and a Hezbollah T-shirt. By all accounts he favors a bipartisan approach to the glorification of terror groups, yet the indiscriminate murder of civilians is the defining characteristic that both of these Islamist factions hold in common. And perhaps most disturbing of all is the photograph of Geller boldly showing off his T-shirt emblazoned with an image of the Hezbollah leader Hassan Nazrallah, a man who has said he welcomes Jews gathering in Israel so as to save Hezbollah the trouble of having to pursue them worldwide.  

The story of the hard-left’s attraction to the most brutal and nihilistic forms of violence is a long and apparently unending one. As with the Baader-Meinhoff gang, Jews seem to be a common fixation for those mesmerized by such bloodlust. But to see those who revel in this kind of thing operating so openly on American college campuses is more than just a little disconcerting. And the idea that the First Amendment protects those seeking to target and intimidate Jewish and pro-Israel students simply does not stand. Freedom of expression should not be limited at universities or anywhere else, but there is a clear dividing line between free speech and the sustained campaign of intimidation used to target students.      

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Nobody Should Fear a Merry Christmas

The notion of a liberal war on Christmas has become something of a seasonal evergreen discussion topic for pundits. As such, at this point at times it’s not clear whether conservatives like Fox’s Bill O’Reilly talk about it more than politically correct secularists wage it. In this overwhelmingly Christian country, there is little doubt that Christmas is a national holiday and is often practiced in such a manner as to make it more of a secular celebration of consumerism than a Christian religious observance.

Nevertheless, it must be admitted that the holiday plays a not unimportant role in the ongoing battle over the height of the so-called wall of separation between church and state. The fight about whether crèches, the lyrics in carols, or Christmas trees constitute an unconstitutional establishment of Christianity has done little to undermine the hold of the holiday or to make religious minorities more comfortable in America. To the contrary, such disputes do much to undermine good community relations between members of different faiths. Dennis Prager is correct when he writes today that those who claim to be “emotionally troubled” by the sight of a Christmas display on public property are indeed emotionally troubled.

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The notion of a liberal war on Christmas has become something of a seasonal evergreen discussion topic for pundits. As such, at this point at times it’s not clear whether conservatives like Fox’s Bill O’Reilly talk about it more than politically correct secularists wage it. In this overwhelmingly Christian country, there is little doubt that Christmas is a national holiday and is often practiced in such a manner as to make it more of a secular celebration of consumerism than a Christian religious observance.

Nevertheless, it must be admitted that the holiday plays a not unimportant role in the ongoing battle over the height of the so-called wall of separation between church and state. The fight about whether crèches, the lyrics in carols, or Christmas trees constitute an unconstitutional establishment of Christianity has done little to undermine the hold of the holiday or to make religious minorities more comfortable in America. To the contrary, such disputes do much to undermine good community relations between members of different faiths. Dennis Prager is correct when he writes today that those who claim to be “emotionally troubled” by the sight of a Christmas display on public property are indeed emotionally troubled.

In particular some liberal Jews have made a habit out of manufacturing outrage about Christmas festivities retaining even a smidge of religious content. As Prager rightly notes, many of those who pick fights over such issues are not religious but instead seem to practice a version of Judaism this time of year whose sole point is to insist that communal celebrations are stripped of Christianity.

There may be some who believe the First Amendment rule against establishing any religion ought to mean Christmas should not be treated as a legal holiday. But, just as the presence of the phrase “In God We Trust” on coins does not infringe anyone’s liberty, neither does the fact that the government shuts down on December 25. One needn’t observe Christmas in any way to understand that it is part of the secular culture of this country. Religious minorities who do without trees, tinsel, and Santa Claus are not in any way damaged by the presence of a crèche or a tree on public property or that children in a public school might sing some Christmas songs.

Why not? Because in the absence of compulsion or of any penalties exacted against those who do not participate, such rites are merely harmless celebrations. Attempts to suppress Christmas are not a defense of religious freedom. Instead, as O’Reilly and others have pointed out, they smack more of a desire to infringe on the religious liberty of believers. Those who imagine that Christmas is a threat to the right to dissent from the majority culture are living in a fevered dream world that is divorced from the reality of American tolerance.

In that spirit, we at COMMENTARY have no compunction about wishing our readers and friends a very merry Christmas. May all who celebrate the day as a matter of faith as well as those who don’t enjoy the holiday. It is as good a time as any to take a moment to thank Divine Providence for the ongoing miracle that is American democracy and for the religious freedom it has provided all of us.

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Stop the War on Video Games

The shock and grief generated by the Newtown shooting has generated momentum for gun control advocates. That push will fail, as President Obama conceded today in advance of the release of Vice President Biden’s proposals, to pass a new ban on assault weapons. That’s the result of the reluctance on the part of Senate Democrats as well as Republicans to support such a measure. Despite the renewed focus on the issue as well as the backlash in the media against the National Rifle Association, there is little likelihood that there will be a significant expansion of limitations on gun ownership in the foreseeable future. But there is one aspect of the fallout from that tragedy that politicians from both parties and all parts of the political spectrum seem to agree on: video games are bad and help create a culture of violence that some see as partially responsible for the murder of 20 children and six adults in Connecticut last month.

Video games deserve censure for the way they have helped desensitize the country to violence. The same can be said about other aspects of popular culture including films, television, and the music industry in which vulgarity and graphic depictions of violence are rampant. Yet despite the claims that the Newtown killer liked such games, there is no reason to believe they are responsible for his crimes, especially when you consider that millions play them without being impelled to commit mass murder. Put in that perspective, it is clear that condemning them is merely a safe outlet for those wishing to put themselves on record as being horrified by the slaughter at the Sandy Hook Elementary School. However, if legislators determined to be able to say they did something in response to this incident choose to involve government in the question of what sort of games Americans play, they will have stepped over the line that separates normal political bloviating from a dangerous infringement on our constitutional liberties.

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The shock and grief generated by the Newtown shooting has generated momentum for gun control advocates. That push will fail, as President Obama conceded today in advance of the release of Vice President Biden’s proposals, to pass a new ban on assault weapons. That’s the result of the reluctance on the part of Senate Democrats as well as Republicans to support such a measure. Despite the renewed focus on the issue as well as the backlash in the media against the National Rifle Association, there is little likelihood that there will be a significant expansion of limitations on gun ownership in the foreseeable future. But there is one aspect of the fallout from that tragedy that politicians from both parties and all parts of the political spectrum seem to agree on: video games are bad and help create a culture of violence that some see as partially responsible for the murder of 20 children and six adults in Connecticut last month.

Video games deserve censure for the way they have helped desensitize the country to violence. The same can be said about other aspects of popular culture including films, television, and the music industry in which vulgarity and graphic depictions of violence are rampant. Yet despite the claims that the Newtown killer liked such games, there is no reason to believe they are responsible for his crimes, especially when you consider that millions play them without being impelled to commit mass murder. Put in that perspective, it is clear that condemning them is merely a safe outlet for those wishing to put themselves on record as being horrified by the slaughter at the Sandy Hook Elementary School. However, if legislators determined to be able to say they did something in response to this incident choose to involve government in the question of what sort of games Americans play, they will have stepped over the line that separates normal political bloviating from a dangerous infringement on our constitutional liberties.

Popular culture is always an easy target for those of us who deplore the dumbing down of America and the way civilized standards of behavior as well as faith have been relentlessly excised from so much of our daily lives. Count me among those who intensely dislike this trend. Yet to jump from that position to the conclusion that they can be directly linked to crimes is a leap of faith that is not justified by any evidence. Nor is it one that is backed up by the law.

Over the course of the last century, the entertainment industry has been blamed for the spread of crime. The first silent picture that depicted bandits robbing a train in the Old West was blamed for violent crimes in much the same way we now bash video game producers. The gangster flicks of the 1930s were thought to have fueled mobsters of that era. We can laugh at those accusations and say that today’s pop culture violence is much worse, but the principle is the same. Like the accusations that rock ‘n’ roll caused teenage pregnancy or that the popular music of the 1960s and 1970s was at the root of an epidemic of drug abuse, the charges had a kernel of truth in them. But while we may well advocate for a change in the culture, a free society does not abridge basic freedom in pursuit of a more peaceful society any more than we should try to do so to have a more moral or godly one.

Like the movies, the games industry has a rating system that seems to be working well. Conservatives may seize upon this issue as one that demonstrates their desire to stand up for decency. But like them or not, disgusting rap lyrics, graphic movies and shows and even the games which allow the players to pretend to be the perpetrators of bloody violence are constitutionally protected speech. Government has no more business regulating such games any more than they have to tell us what films we can watch or books we can read.

That’s why I find statements such as the ones made by Representative Frank Wolff about the need to do something about video games, along with efforts to regulate guns and to improve mental health treatment, quite troubling. Like the loose talk about this subject from the National Rifle Association, which is desperate to deflect any attention from the use of weapons in violent crimes, any effort to defend the Second Amendment by trashing the rights enumerated in the First is unacceptable as well as unconstitutional.

Any such rhetorical excursion inevitably becomes one in which individual responsibility—a core conservative value—is de-emphasized in favor of sociological cant about the power of culture to make us misbehave. Video games make for a convenient punching bag for politicians in need of a platform from which they can pose as defenders of the innocent. But in doing so they are undermining freedom in the name of a dubious connection to crime. Any effort by Congress to further involve the government in the question of what games Americans can play or whether they can be legally manufactured or distributed must be rejected in principle.

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Protect Free Speech on Campus–For Jewish Students Too

Back in 2010, pro-Palestinian groups at the University of California-Berkeley staged a protest of Israel during which they set up checkpoints around certain parts of campus asking people if they were Jewish before deciding to let them through, and then watched as Jessica Felber, a Jewish pro-Israel student, was allegedly assaulted trying to participate in a counter-protest. To many, the incident typified an uncomfortable reality about pro-Israel students on campuses around the country, though it has been particularly hostile at UC schools.

The harassment—which, as in Felber’s case, can sometimes turn violent—has been all-too-common at universities, even (sometimes especially) at schools with a vibrant Jewish community. Anti-Israel activity doesn’t always take the form of physical intimidation; as Brooke Goldstein and Gabriel Latner revealed in COMMENTARY last year, it can take the form of university-funded events that raise money for groups that aid terrorists. But though the latter example presents a clear solution—don’t enable such fundraising—the question of what to do about harassment, especially nonviolent harassment, has been more difficult for universities, which often try to err on the side of free speech, to answer.

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Back in 2010, pro-Palestinian groups at the University of California-Berkeley staged a protest of Israel during which they set up checkpoints around certain parts of campus asking people if they were Jewish before deciding to let them through, and then watched as Jessica Felber, a Jewish pro-Israel student, was allegedly assaulted trying to participate in a counter-protest. To many, the incident typified an uncomfortable reality about pro-Israel students on campuses around the country, though it has been particularly hostile at UC schools.

The harassment—which, as in Felber’s case, can sometimes turn violent—has been all-too-common at universities, even (sometimes especially) at schools with a vibrant Jewish community. Anti-Israel activity doesn’t always take the form of physical intimidation; as Brooke Goldstein and Gabriel Latner revealed in COMMENTARY last year, it can take the form of university-funded events that raise money for groups that aid terrorists. But though the latter example presents a clear solution—don’t enable such fundraising—the question of what to do about harassment, especially nonviolent harassment, has been more difficult for universities, which often try to err on the side of free speech, to answer.

So the University of California school system dispatched a task force to its campuses to interview students and try to get a sense of how bad things truly are for Jewish students. They found that things were just fine for liberal Jewish students who openly criticized Israel, but far less comfortable for Jewish students who supported Israel openly and even for those who refused to join in the routine condemnation of Israel found around campus and in classrooms. (More on this task force in a moment.)

But the issue is now somewhat out of the university’s hands, as the U.S. Department of Education’s civil rights office announced this month that it has opened an investigation into whether the school is fostering a hostile atmosphere for Jewish students by permitting anti-Semitism to thrive on campus. This has led to some well-founded concerns about whether free speech is in jeopardy at institutions of higher learning. Wendy Kaminer offers a welcome defense of free speech and incivility, but completely misrepresents the students’ complaints to the task force and displays her own snide hostility to the Jewish groups bringing the complaint. Kaminer writes:

But combine popular support for restricting hate speech with ardent Zionism, and you have a recipe for categorically equating anti-Zionism with anti-Semitism and restricting anti-Zionist protests in order to protect Jewish students from “harassment” and “intimidation.”

But the story isn’t about “ardent” Zionists on the march. The issue is about Jewish students who are the targets of repeated displays of anti-Semitism. That may be protected speech, but to paint the young Jews here as the true threat turns the case upside-down. And since violence was deployed against a Jewish counter-protester, isn’t Kaminer at all concerned that the Jewish groups’ free speech rights are at risk? Also, Kaminer never explains why “ardent” Zionism is a potent ingredient in the threat to free speech. And what makes Zionism “ardent”–bringing a law suit after being physically assaulted for being Jewish? Kaminer continues:

Still the U.C. fact finders’ recommendations are worth noting: They recommend vigorous regulations of political speech, partly to deter “bigoted harassment,” yet their fact finding mission apparently uncovered no instances of serious harassment or intimidation: “No students indicated feeling physically unsafe on U.C. campuses,” they report. I guess they didn’t interview the students whose complaint sparked the current Department of Education investigation, for whom vitriolic anti-Zionist protests were the equivalent of Nazi propaganda, threatening incitement of violence against Jews, if not another Holocaust.

Put aside the absurdity of regarding Jews in post 9/11 America, who’ve been embraced by right wing Christian Zionists, as more at risk than Muslims.

First of all, Kaminer must be kidding about the supposed invulnerability of Jews compared to Muslims. As the FBI has made clear, Jews are far more often the targets of hate crimes than Muslims are. That doesn’t mean Muslims aren’t also at risk, but they are, statistically, at far less risk than Jews.

More importantly, Kaminer is misleading her audience about that fact-finding task force and the complaints of the students. UC’s Jewish students claim a double standard: they believe that free speech rights have been granted to only some groups, or some criticisms. The students also said that the university has been less than accommodating when it comes to the religious needs and observance of its Orthodox students. Thus, there is an issue of religious freedom here as well.

Additionally, the Jewish students raised an objection to what they see as a consistent use of university resources and university-sponsored offices or activities that promote bigotry against Jews. That’s not about nasty students, but an institutional bias against Jews. And finally, Jewish UC students feel they’ve been excluded from working for campus groups specifically because of their views on Israel or religious affiliation.

Kaminer is right to defend free speech, but she should do so without distorting the facts of the case and railing against “ardent” Zionists and “right wing” Christians.

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Obama’s First Amendment Double Standard

At the White House press briefing today, Jay Carney took a break from condemning the anti-Islam video that sparked protests this week in order to criticize a French magazine for publishing a cartoon mocking Islam:

“We are aware that a French magazine published cartoons featuring a figure resembling the Prophet Muhammad. Obviously we have questions about the judgment of publishing something like this. We know that these images will be deeply offensive to many and have the potential to be inflammatory. But we’ve spoken repeatedly about the importance of upholding the freedom of expression that is enshrined in our Constitution. In other words, we don’t question the right of something like this to be published. We just question the judgment behind the decision to publish it.

Nothing Carney said is wrong; the cartoon was offensive and publishing it was poor judgment. But notice his tone. The last time the White House weighed in on a major First Amendment controversy, it was freedom of religion during the Ground Zero mosque debate. At the time, Obama struck a very different note:

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At the White House press briefing today, Jay Carney took a break from condemning the anti-Islam video that sparked protests this week in order to criticize a French magazine for publishing a cartoon mocking Islam:

“We are aware that a French magazine published cartoons featuring a figure resembling the Prophet Muhammad. Obviously we have questions about the judgment of publishing something like this. We know that these images will be deeply offensive to many and have the potential to be inflammatory. But we’ve spoken repeatedly about the importance of upholding the freedom of expression that is enshrined in our Constitution. In other words, we don’t question the right of something like this to be published. We just question the judgment behind the decision to publish it.

Nothing Carney said is wrong; the cartoon was offensive and publishing it was poor judgment. But notice his tone. The last time the White House weighed in on a major First Amendment controversy, it was freedom of religion during the Ground Zero mosque debate. At the time, Obama struck a very different note:

Let me be clear: as a citizen, and as President, I believe that Muslims have the same right to practice their religion as anyone else in this country. That includes the right to build a place of worship and a community center on private property in lower Manhattan, in accordance with local laws and ordinances. This is America, and our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country, and will not be treated differently by their government, is essential to who we are. The writ of our Founders must endure.

Even the strongest critics of the Ground Zero mosque agreed that the imam had the right to build it; the point was that the majority of Americans considered it highly offensive. And yet Obama would only discuss the legal issue, declining to weigh in on the sensitivities.

“I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there,” Obama said at the time. “I was commenting very specifically on the right people have that dates back to our founding. That’s what our country is about. And I think it’s very important as difficult as some of these issues are that we stay focused on who we are as a people and what our values are all about.”

The left praised Obama’s supposedly brave defense of the First Amendment. Well, it’s easy to be brave when you’re lecturing Americans about the importance of religious tolerance at the site of a mass-murder carried out by religious fundamentalists. As for whether the mosque-builders should have been tolerant of the feelings of the 9/11 families — the “wisdom” of their plan apparently wasn’t for Obama to comment on. The former Constitutional law professor was simply defending the First Amendment.

What happened to Obama’s constitutional devotion since then? In the face of the recent protests, the White House isn’t defending the First Amendment right now so much as apologizing for it.

“As I said yesterday, it can be difficult to see in some countries why the U.S. can’t simply eliminate this expression,” Jay Carney said ruefully last week. “But as you know…it’s one of our fundamental principles.”

Instead of enlightening us about the importance of our founding rights and values, the White House scrambled to ask YouTube to remove the offensive video last week. And the Obama administration has been more than willing to weigh in on the poor “judgment” behind the anti-Islam film and cartoons. It’s not so much what the White House is saying that’s noteworthy, it’s the dramatic shift in tone.

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Chicago and Boston Chose Liberalism Over First Amendment

Last week, I discussed liberal intolerance of those in opposition of their particular viewpoints, and almost on cue, Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino came onto the scene today to embody the ideals of modern-day liberalism: tolerance of only those with whom they already agree. Both mayors expressed support for same-sex marriage and not only expressed their personal opposition to Chick-fil-A’s social conservatism, but also those of their cities.

In a public letter to Chick-fil-A’s President Dan Cathy, and carbon copied to the owner of a property that it appears Chick-fil-A would occupy, Mayor Menino expressed his opposition to the chicken restaurant’s plans to locate in Boston. The strongly worded letter reads in part, “I was angry to learn on the heels of your prejudiced statements about your search for a site to locate in Boston. There is no place for discrimination on Boston’s Freedom Trail and no place for your company alongside it.”

To be clear, Chick-fil-A discriminates against no one, not employees and not customers; its policies expressly forbid it. Chick-fil-A and its president have expressed their support of the traditional family and Christian values, which are not by definition anti-gay. Their charitable organization, WinShape, has donated money not only to organizations that support traditional marriage, but also to foster homes, college scholarships and international relief efforts. Chick-fil-A’s other charitable contributions are irrelevant to those who view anyone who is not with them on the quest to redefine marriage as a bigot who must be taken down at any cost.

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Last week, I discussed liberal intolerance of those in opposition of their particular viewpoints, and almost on cue, Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino came onto the scene today to embody the ideals of modern-day liberalism: tolerance of only those with whom they already agree. Both mayors expressed support for same-sex marriage and not only expressed their personal opposition to Chick-fil-A’s social conservatism, but also those of their cities.

In a public letter to Chick-fil-A’s President Dan Cathy, and carbon copied to the owner of a property that it appears Chick-fil-A would occupy, Mayor Menino expressed his opposition to the chicken restaurant’s plans to locate in Boston. The strongly worded letter reads in part, “I was angry to learn on the heels of your prejudiced statements about your search for a site to locate in Boston. There is no place for discrimination on Boston’s Freedom Trail and no place for your company alongside it.”

To be clear, Chick-fil-A discriminates against no one, not employees and not customers; its policies expressly forbid it. Chick-fil-A and its president have expressed their support of the traditional family and Christian values, which are not by definition anti-gay. Their charitable organization, WinShape, has donated money not only to organizations that support traditional marriage, but also to foster homes, college scholarships and international relief efforts. Chick-fil-A’s other charitable contributions are irrelevant to those who view anyone who is not with them on the quest to redefine marriage as a bigot who must be taken down at any cost.

Not to be outdone, Chicago’s Mayor (and Barack Obama’s former chief of staff) Rahm Emanuel announced support of a Chicago alderman’s refusal to approve a building permit for Chick-fil-A in one of Chicago’s wards. The Volokh Conspiracy explains just how unconstitutional this move is:

But denying a private business permits because of such speech by its owner is a blatant First Amendment violation. Even when it comes to government contracting — where the government is choosing how to spend government money — the government generally may not discriminate based on the contractor’s speech, see Board of County Commissioners v. Umbehr (1996). It is even clearer that the government may not make decisions about how people will be allowed to use their own property based on the speaker’s past speech.

And this is so even if there is no statutory right to a particular kind of building permit (and I don’t know what the rule is under Illinois law). Even if the government may deny permits to people based on various reasons, it may not deny permits to people based on their exercise of his First Amendment rights. It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law — but Alderman Moreno, Mayor Menino, and, apparently, Mayor Emanuel (if his statement is quoted in context), seem to either not know or not care about the law.

Of course, if Chick-fil-A actually discriminated in their serving or hiring decisions in Chicago in a way forbidden by Chicago or Illinois law, they could be punished for this violation, and possibly even denied future permits based on such illegal behavior. But the stories give no evidence of any such actions, and suggest that the city officials’ statements are based on the Chick-fil-A president’s speech, not any illegal conduct on the company’s part. Finally, note that the government may generally insist that, when it hires people to communicate a government message, those people use that government money only for the government-selected speech (see Rust v. Sullivan (1991)); but that power of the government to control its own speech is far removed from the government’s attempt in this case to retaliate against businesses for their owners’ speech.

Imagine, for a moment, if Governors Rick Perry or Chris Christie banned the sale of Ben & Jerry’s from their states because of that company’s support of same-sex marriage. What if, as his first act as president, Mitt Romney banned the Muppets from government-funded PBS after the Jim Henson company expressed their opposition to Chick-fil-A? You can just hear the wails of the editorial pages of the New York Times and Washington Post, the anchors of every major news station (including Fox) crying “FASCISM!” They would be absolutely correct in their charge. Using the government’s power to restrict commerce based on a personal vendetta is a chilling next step in a culture war that has turned business owners, job creators and people of faith into public enemies.

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McConnell Vows to Defend Citizens United

Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

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Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

The latest example is David Axelrod, who promised earlier this week that if Obama wins a second term, he will pursue any option — including a constitutional amendment — to restrict these rights:

“When we win, we will use whatever tools out there, including a constitutional amendment, to turn this back. I understand the free speech argument, but when the Koch brothers can spend $400 million, more than the McCain campaign and the Republican Party spent last time, that’s very concerning.”

At AEI, McConnell blasted Axelrod and the Obama administration for the proposal.

“Amending the First Amendment for the first time in history is an act of radicalism,” said McConnell.

There are other indications that the issue of political money will be back at the top of the news this summer. The Supreme Court reportedly met earlier this week to consider a Montana case that challenges some aspects of the Citizens United decision and a subsequent Appellate Court ruling on unlimited political contributions. The Los Angeles Times reports that the appeal isn’t expected to be denied, and the Supreme Court may either decide to hear the case or write a summary opinion defending the Citizens United ruling.

McConnell said as the election nears, some Republicans may be tempted “to take the issue off the table or make concessions.”

“My advice is to resist the temptation,” he said.

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Muslims and the First Amendment

For the past several years, there have been two competing narratives about Islam in America. One put forward by groups that purport to represent believers in Islam and the liberal media would have it that in the post-9/11 era, American Muslims are besieged by a wave of hatred and violence (even though there is no statistical evidence to back up such claims). The other is one articulated by critics of Islam who argue that Muslims are demanding and getting accommodations from government and other institutions that are an unconstitutional establishment of Islamic or Sharia law. Advocates of this point of view are the driving force behind efforts to enact laws that would prohibit recognition or use of Sharia law in U.S. courts. This cause has often seemed to be, at best, the result of overblown fears because, unlike in Asia and Africa where Muslim efforts to make Sharia the law of the land, there is little danger of that happening in Oklahoma or other states where anti-Sharia statutes have been proposed.

However, every now and then a story pops up which makes such fears seem more reasonable. One concerns the assault by a local Muslim on a man wearing a costume during a Halloween parade in Mechanicsburg, Pennsylvania, last year. The attacker said the costume depicted a zombie version of the Prophet Muhammad. The attack was recorded on film and witnessed by a police officer who promptly arrested the assailant, who was later charged with harassment. But, as legal scholar Jonathan Turley notes in his blog, the judge who heard the case not only dismissed the case on the grounds that the offense to Islam was not protected speech but also lectured the victim on the wrongheaded nature of his views. Judge Mark Martin’s decision was based on the idea that the assailant, one Talaag Elbayomy, was merely defending “his culture.” Turley, who posted a video of the assault and a partial transcript of the judge’s comments, concludes that Martin’s decision “raises serious questions of judicial temperament, if not misconduct.” But I would go farther and point out that the judge’s behavior seems to reflect a bizarre notion of Muslim entitlement that is by no means unrelated to the attempt to sell the country on the myth of a post 9/11 backlash.

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For the past several years, there have been two competing narratives about Islam in America. One put forward by groups that purport to represent believers in Islam and the liberal media would have it that in the post-9/11 era, American Muslims are besieged by a wave of hatred and violence (even though there is no statistical evidence to back up such claims). The other is one articulated by critics of Islam who argue that Muslims are demanding and getting accommodations from government and other institutions that are an unconstitutional establishment of Islamic or Sharia law. Advocates of this point of view are the driving force behind efforts to enact laws that would prohibit recognition or use of Sharia law in U.S. courts. This cause has often seemed to be, at best, the result of overblown fears because, unlike in Asia and Africa where Muslim efforts to make Sharia the law of the land, there is little danger of that happening in Oklahoma or other states where anti-Sharia statutes have been proposed.

However, every now and then a story pops up which makes such fears seem more reasonable. One concerns the assault by a local Muslim on a man wearing a costume during a Halloween parade in Mechanicsburg, Pennsylvania, last year. The attacker said the costume depicted a zombie version of the Prophet Muhammad. The attack was recorded on film and witnessed by a police officer who promptly arrested the assailant, who was later charged with harassment. But, as legal scholar Jonathan Turley notes in his blog, the judge who heard the case not only dismissed the case on the grounds that the offense to Islam was not protected speech but also lectured the victim on the wrongheaded nature of his views. Judge Mark Martin’s decision was based on the idea that the assailant, one Talaag Elbayomy, was merely defending “his culture.” Turley, who posted a video of the assault and a partial transcript of the judge’s comments, concludes that Martin’s decision “raises serious questions of judicial temperament, if not misconduct.” But I would go farther and point out that the judge’s behavior seems to reflect a bizarre notion of Muslim entitlement that is by no means unrelated to the attempt to sell the country on the myth of a post 9/11 backlash.

Martin called Ernie Perce, the Pennsylvania director of American Atheists, a “doofus” and, citing his own experiences serving in Iraq and other Muslim countries, told him his conduct could be punished by death in such countries. He went on to claim the Framers did not intend the First Amendment to be used to “piss off other peoples and cultures” and therefore did not protect his right to criticize Islam even in the context of a Halloween parade. Martin not only seemed to accept the idea that Elbayomy was conditioned to attack critics of Islam by his background and faith but that the law ought to recognize his need to not be so offended. This “cultural defense” seems to treat Muslims as so inherently aggrieved by living in a country where their religion is not the law of the land that they deserve some sort of special legal protection for their own blatantly illegal behavior.

As Turley states, the fact that the victim was a recognized antagonist of the Muslim faith had no bearing on whether he ought to be allowed to exercise his right to speak his mind without being physically attacked. Though insulting the prophet is a death-penalty offense in much of the world, such behavior is not illegal in a country that recognizes the right to free speech.

It should be specified that this is just one clearly incompetent judge who used his godlike control of his courtroom to vent his personal opinions and perpetrated a miscarriage of justice. But what is really troubling is the way his decision seems to reflect a growing sense that Muslim sensibilities are so delicate they may override the rights of others to comment on their faith. One need not endorse the insult of any faith to understand Perce’s conduct was legal and his attacker was in the wrong.

It is hardly a stretch to point out the connection between this case and something all too common in Muslim countries where insults or perceived attacks on Islam — such as the recent incident in Afghanistan — are treated as justifying riots and murder. For all of the unsubstantiated talk about a rising tide of Islamophobia, critics of Islam are still far more likely to be subjected to attacks than are Muslims. Like all Americans, Muslims are entitled to the full protection of the law for the expression of their beliefs. But attempts to enshrine their notion of what is a sacrilege into secular law are a path to the destruction of the Constitution.

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