Sunday, January 21, 2018

Is Bullying Protected Speech? (Part I)

I thought if I studied the law (on my own), I may find answers to the many of the complicated questions that we face in society. However, the law is very complicated and convoluted and it is really hard to answer these questions. In the following evaluation, I only consider bullying that is speech and not physical contact which would undoubtedly be a crime (assault). Let’s evaluate some relevant precedent by the Court when it comes to the First Amendment and free speech.

We know that people have the right to bigoted and hateful speech (words, actions, and conduct), much like flag burning (Johnson v. Texas, 1989) and cross burning (R.A.V. v. St. Paul). In Snyder v. Phelps (2010), the Court held that religious protests at the funerals of soldiers was constitutional if the protests were held outside a buffer zone. I will not publish what the protestor’s signs said, but they were extremely hurtful and hateful. The Court held that although the signs were provocative, the protest was orderly and peaceful. In the United States v. Stevens (2010), the Court held that owning violent films showing animals being crushed to death was protected speech, but the act of creating those films is probably not be protected (violated animal cruelty laws). The federal government is not completely powerless to regulate speech. In O’Brien v. United States (1968) the Court held that the burning of military draft cards was not protected speech because the government had a “compelling” reason for prohibiting the behavior: Since the government has broad powers over the formation of armies, this was compelling enough for the Court to side with them. There are only a few cases of the government mandating speech, but most of this deals with freedom of the press and political speech. In Red Lion Broadcasting Company v. Federal Communications Commission (1969) the Court held the Fairness Doctrine was constitutional. In this case, the government could mandate broadcasters to tell both sides of political issues. But just five years later in Miami Herald v. Tornillo (1974) the Court held a Florida statute forcing newspapers to print opposing political views was unconstitutional. In my view, Tornillo all but overrules the Red Lion case (although it did not officially do so). So government mandated regulation over political speech is not allowed (see also Citizens United).

Bullying of public personalities (New York Times v. Sullivan, 1964) may be viewed differently than private personalities (Gertz v. Robert Welch, 1974). Private citizens are protected more by defamation claims that public citizens who more readily have resources to fight allegations. Lying is also protected speech that the government cannot regulate unless they have a “compelling interest” to do so (United State v. Alvarez, 2012). In many cases, it comes down to how the law is written and if the action of abridging free speech is needed for some “compelling government interest”.

Some speech is not protected such as obscenity (Roth v. United States, 1957) unless the obscenity is in the privacy of your own home (Stanley v. Georgia, 1969). In Miller v. California the Court put some guidelines on obscenity that may make it permissible such as if the obscenity has a “literary, artistic, political, medical, or scientific value.” Some speech may not be protected if it “incites violence” (Brandenburg v. Ohio, 1969) or are “fighting words” (Chaplinski v. New Hampshire, 1942). But as the above cases show doctrines abridging free speech are hard to prove because it must be shown someone is intentionally trying to incite violence or pick a fight.

Thursday, January 18, 2018

The Difference between Union and Corporation Political Speech

Union and corporate First Amendment rights towards political spending (speech) are treated very differently, but there are reasons for those decisions. The Supreme Court has held that unions can charge non-members dues to help cover “collective bargaining costs”. The reason for this is to prevent “free riders” who get the collective bargaining advantages at no cost. However the Court has also held that unions cannot charge non-members dues that will be used to support political speech since non-members may have different political views. That being said, corporate stockholders do not receive the same type of protections as union nonmembers. Corporations are free to invest in political speech anyway the board of trustees sees fit regardless of how stockholders may feel about their choice of political speech. It is important to point out that there are many reasons why the Court has made decisions that seem more favorable to corporations.

Citizens United, decided in 2010, provides that both Unions and Corporations are allowed unlimited donations to political campaigns and referendum initiatives. However, the line of cases Aboad v. Detroit Board of Education (1977), Keller v. State Bar of California (1990), and Knox v. SEIU (2012) set the precedent explained in the first paragraph restricting non-union member’s fees. In Board of Regents University of Wisconsin v. Southworth (2000), the Court held that mandatory member fees can be collected if the political speech is “viewpoint neutral”. Unfortunately, Union speech is not “viewpoint neutral”, but corporate speech is much more “viewpoint neutral” than union speech: about 40% of United States business owners are Democrats. In the last presidential election Clinton received more than 75% of the corporate contributions. Unions back Democrats candidates 100% of the time.

So why is okay to have what the Left calls an “un-level playing field” between Unions and Corporations other than “viewpoint neutral” speech. First, according to one article there is a distinction between government and private employees: “The First Amendment is a limit on government power, and it does not directly affect private agreements, whether between companies and shareholders or between private employers and their workers.”

Secondly, there is a big difference between a union member worker and a shareholder. Specifically, the shareholder can choose and buy and sell any stock or mutual fund it likes. A worker is much more restricted because leaving and starting new jobs is not quite as easy as pushing enter on a computer screen. Union fees are compulsory whereas stock purchasing is a private and personal decision.

Third, a corporation does not charge stockholders fees, but instead works to make the investor money through capital gains and dividends. A union can also help make money for employees in the same way a company can (pensions, 401K, raises), but they charge their members fees and they cannot earn capital gains or dividends. Unions spend as much as 50% of its dues on political speech, no corporation will spend anywhere near that much on political speech. If a corporation spends 1% on its profits on political speech that would be extremely high.

Finally, shareholders do have a say in the political choices made by a company through the voting proxy system. The same option is not available to union members or nonunion members. In fact, collective bargaining decisions made on behalf of the government worker is done so by a “monopolized” viewpoint. Union members and nonmembers have very little say over any direction of their employer’s decisions; they are completely silenced. Nonunion members should be able to advocate for their own pay and benefits. Government employees are not paid based on how well they perform (merit based system), instead they are paid the same as workers who are underachievers. In my view, Unions should feel lucky they are allowed to collect any dues from nonmembers. There is a distinct difference between a company making money in the private sector for use as political speech and a union making money by stealing from people who do not want to pay the fee for political speech. Unions and corporations are completely different entities with completely different business plans and philosophies. To think laws should be applied “symmetrically” between two vastly different types of groups, companies, and organizations is just being na├»ve.

Sunday, January 14, 2018

Rehnquist Made Many Questionable Rulings

Chief Justice Rehnquist made more good decisions than bad ones, but some of the bad ones can leave a person scratching their head wondering what he was thinking. Rehnquist may have been only one of two Justices on the right side of the Roe v. Wade decision in 1973, but his dissent, in my opinion, was extremely lacking in substance and vigor. In South Dakota v. Dole (1987), Rehnquist gave the majority decision that allowed the federal government to use coercive tactics when using its spending power. In this decision the Court held that Congress had the authority to withhold federal transportation funding from the state of South Dakota unless they raised their drinking age to 21. South Dakota allows young adults (18-20) to only drink near bear (3.2% alcohol by content). In her dissent, Justice O’Connor schooled Rehnquist that coercive or as the Left call it “encouragement” spending powers apply if the money being withheld is related to the subject of the funding: Federal highway safety. There was no evidence South Dakota highways would be safer by increasing the drinking age and thus O’Connor theorized that establishing a drinking age and highway safety were unrelated. One example where Rehnquist really misses the target is over “commercial speech”. Commercial speech involves things like corporate advertising. Rehnquist wrongly asserts that commercial speech is not subject to the same First Amendment protections as noncommercial speech – such as political speech. And he feels this way even if the commercial speech is truthful and informative.

In Virginia Pharmacy Board v. Virginia Consumer Council (1976), the Court held a statute prohibiting pharmacies from “truthfully” advertising the cost of its products was unconstitutional. Rehnquist wrote the dissenting opinion: “I do not believe that the First Amendment mandates the Court’s ‘open door policy’ toward such commercial advertising. Rehnquist writes that “prescription drugs, liquor, cigarettes, and other products the use of which it has previously been though desirable to discourage.” There may have been some restrictions placed on some products in terms of advertising, but advertising was never banned in any sense such as Rehnquist hints. This is a totally anti-capitalistic way of thinking on his part and is by no means even accepted First Amendment theory by the “liberal” sect of the court.

In Central Hudson Gas and Electric v. Public Service Commission (1980), Rehnquist elaborates much deeper into his flawed thinking. In this case, the Court held a New York law prohibiting the advertisement of energy as unconstitutional. Of course, energy is not at all any of the “evil” products pointed out in the Virginia Pharmacy Board ruling. Yet, Rehnquist still dissents claiming the Court is moving back to the “bygone era of Lochner v. New York (1905) in which it was common practice for this Court to strike down economic regulations. However, as Rehnquist notes, the FDR Court era changed all this and “it had become well established that a State has broad discretion in imposing economic regulations.” Rehnquist summarizes by saying “in a democracy, the economic is subordinate to the political.” Rehnquist’s summary of Lochner and FDR era economic laws is true. But those cases dealt specifically with the Commerce Clause not the First Amendment. More importantly in Gibbons v. Ogden (1824) which was the first major Commerce Clause case, Chief Justice Marshall writes about the power of interstate commerce “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the Constitution.” I read this as meaning the Commerce Clause can be preempted if it violates some other clause or right in the Constitution. A Commerce Clause law that abridges any right outlined in the Bill of Rights will be struck down as unconstitutional. That makes sense, so in Central Hudson Gas and Virginia Pharmacy the Commerce Clause does not matter since these cases are about the First Amendment. I do not believe Rehnquist was using the correct logic or theory to apply the law in these two cases which led him to make the wrong decision. Today’s conservative Justices would not agree with Rehnquist’s philosophy about commercial speech, FDR economic use of the Commerce Clause (especially Wickard v. Filburn, although it seems accepted except for Justice Thomas), or the right of Congress to use the Spending Clause in a coercive manner (although Trump is going to do this to try to end Sanctuary Cities – interesting to see what happens if that goes to the Supreme Court).

Thursday, January 11, 2018

Why Torture the Body with Unnecessary Pain

My wife asks me questions like “why do I put myself through so much pain and agony with cycling?” or “why do I have to compete in cycling?”. She is right, I do not have to compete or put myself through so much pain in races or training. After all, I have a perfect excuse to avoid pain since I am already in pain with a neurological disorder. Thus, it defies logic and commonsense to enhance my pain levels. However, I have explained some of my reasons in the previous posts: For instance, having the good pain from training helps mask some of the bad pain from the neurological disorder. That is one important reason for my dose of daily torture on a bike. But there are other reasons as well.

Just eight to ten years ago I was being tested for sinister disorders such as ALS and MS. Everything came back negative, but I had the tests redone a few years later to double check the results since I was still convinced I had something majorly wrong with my body. These results also came back negative. Although, I was diagnosed with Cramp Fasciculation Syndrome (CFS), it could have been worse so I find myself as being very lucky. If I had ALS, I would currently be dead and not writing this blog post. CFS is no joy, but it is better than the alternatives. So, in my view, I was granted a second chance at life since I was convinced that I was dying just a few short years ago. When you get a second chance at life you not only realize that life is short and precious, but you also understand that you are mortal and life can end at any moment without notice. Most of us take life for granted, I know I was in that group. You need to make the most of life regardless of the adversity or the situations you may face. Furthermore, I was told that exercise intolerance was a sub-symptom from all the primary symptoms of my CFS disorder. My life was going to change for the worse because I would no longer be able to exercise with intensity or do many of the activities I love anymore. The doctors were partially right. I found certain types of exercise and activities no longer possible because of both extreme pain levels and safety concerns over paresthesia symptoms in my hands and feet (such as rock climbing). However, for some unexplained reason, I can cycle. Sure, it can be painful (proportional to the intensity of the workout), but it has been manageable. All that being said, each day it is becoming more difficult to ride (slightly, but more difficult none the less). The strange thing is that although my pain levels are going up after riding, I continue to improve. No one can explain this phenomenon.

Therefore, I try to explain to my wife what if she thought she would eventually lose the ability to cycle, wouldn’t she try to make the most out of what time she had with the activity? If she was given a second chance at life wouldn’t she try to make the most of it and pursue goals that have eluded her during her lifetime? If she was good at cycling and getting better even though she is in her 50s with neuro disorder, wouldn’t she want to know how good she can be, especially understanding it could be taken away without a moment’s notice? You have one chance at life, would she regret not making the most of an opportunity? Wouldn’t it be a crime not to use my legs (although in pain) when so many others are suffering around the world and they literally cannot use their legs? Sometimes we fail to realize how fortunate we are in this country and how lucky most of us are to have the freedom to do almost anything that we want. But when you lose many of those freedoms wouldn’t you want to make the most out of what freedoms you still have? Unfortunately, we never realize how much we miss something until it is too late and it is gone. And although I have evolved, I surely miss the activities I can no longer partake in, but I will not have any regrets when and if cycling is taken away from me. I am riding with passion and conviction every day. I am giving it my all. I will miss cycling if it taken away from me, but I know I put every ounce of effort behind the sport on daily basis, so I will have no regrets.

Sunday, January 7, 2018

Is Fake News Constitutional?

Is fake news constitutional? I believe the answer to this question depends on what the fake is news about to determine if it is protected by the First Amendment. If a fake news article slanders or defames another person, it is Constitutional to do so if the person being defamed is a public figure (well known – politician, sport star, Hollywood star etc.). This precedent was decided in New York Times v. Sullivan in 1964. On the other hand, if the person being defamed is a private citizen, this speech is not protected by the First Amendment. This precedent was decided in Gertz v. Robert Welch (1974). In Getz, the Court held there was a distinction between public and private persons: “Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.” At the same time, the Court in Gertz held “all” false statements are problematic under the First Amendment: “But there is no constitutional value in false statements of fact.” Also “Under the First Amendment there is no such thing as a false idea.” But the Gertz majority opinion will then go on later to proclaim: “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” In the United States v. Alvarez (2012), the Court held that lying about receiving Military awards / medals is protected by the First Amendment. In 1952, Beauharnais v. Illinois the Court upheld a statute making it illegal to portray in any matter: “depravity, criminally, unchastely, or lack of virtue of a class of citizens of any race, color, or creed of religion”.

Then there is the question of fraud, if someone knowingly commits an act of fraud – this is not protected by the First Amendment. In Virginia Pharmacy Board v. Virginia Consumer Council (1976) the Court held “commercial speech” was protected similarly to “non-commercial speech” such as political speech. Commercial speech includes things such as corporate advertisements of any kind. However, commercial speech is not unlimited: “Untruthful speech, commercial or otherwise, has never been protected for its own sake. Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive and misleading.” So it may be hard to prove if someone writing fake news was intentionally writing false statements and committing fraud or just being “deceptive or misleading”. In Central Hudson Gas and Electric Corporation v. Public Service Commission (1980), the Court placed a four points in determining whether government legislation was constitutional regarding “commercial speech”: 1. “It must concern lawful activity and not be misleading”; 2. The government interest for the law must be “substantial”; 3. The legislation or regulation must “directly advance the government interest asserted”; and 4. The regulation cannot be “more extensive than is necessary to serve that government interest.” As Justice Thomas says in Lorillard Tobacco v. Reilly (2001) there is no “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” If that is true, then both forms of speech can be held to “strict scrutiny”. Under strict scrutiny unless there is a compelling government interest, the speech is constitutional.

Since speech protected by the First Amendment varies depending upon the circumstance (non-commercial, commercial, public figures, or private figures), each case of fake news would have to be determined on a case by case basis. It seems fake news is expanding daily and covers a vast number of topics so the issue is not as simple as if fake news is constitutional. My guess is that a vast majority of fake news articles will be found constitutional while it is possible that a few may be found unconstitutional.

Thursday, January 4, 2018

Illegal in Public, but Legal in Private

Is there anything that is illegal in public but legal in the privacy of our own homes? For the most part no. Although there is a fundamental right to privacy elevated by the Supreme Court in Griswold v. Connecticut in 1965, this is misleading. The Court makes it sound as if everything do in private is okay, but that is not true. Drug usage is mostly done in private, but that does not make it protected. Growing or manufacturing drugs in the privacy of our homes is not legal. Manufacturing alcohol is prohibited in public or in private. Sex with prostitutes is done in private, but that does not make it legal (other than Nevada). Defaming private citizens in private is not legal. Storing stolen goods on private property is not legal. Sure, these things are not legal, but people may get away with many crimes because they do them in private.

There is one issue that may be illegal in public but legal in private: obscenity. Sex in public is not legal, it would be considered lewd or obscene. But sex in the privacy of our homes is legal, including such things as sodomy (Bowers v. Hardwick, 1986 and Lawrence v. Texas, 2003). Obscenity is one of the few subjects that is not protected by the First Amendment (Roth v. United States, 1957) other than the following exceptions settled in Miller v. California (1973): 1. The material “appeals to the prurient interest”; 2. Material or conduct is allowed by state laws; and 3. The material has some “literary, artistic, political, or scientific value.” The Court does not deal with obscenity the same way that it does with other First Amendment cases such as things depicting violence: video games (Brown v. Entertainment Merchants – 2011) and animal cruelty videos (United States v. Stevens, 2010). Hate speech is also tolerated such as the burning of the American Flag (Johnson v. Texas, 1989) and burning a cross on a neighbor’s yard (R.A.V. v. St Paul, 1992). Other than obscenity, the following issues have not gotten First Amendment protection: defamation (Beauharnais v. Illinois, 1952), Fraud (Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 1975), Incitement (Brandenburg v. Ohio, 1969), Child Pornography (Ferber v. New York, 1982) and speech that integral to criminal conduct (Giboney v. Empire Storage and Ice, 1949). Remember, just because a video of someone crushing a dog to death with their feet is protected, this does not mean the act is not a crime.

One case stood out when dealing with obscenity and First Amendment protections: Stanley v. Georgia (1969). In this case, obscene videos were confiscated from the home of the defendant and he was convicted under Georgia law. Although Roth v. United States said obscenity is not protected by the First Amendment, Justice Thurgood Marshall, who wrote the majority opinion, found a variety reasons to not apply Roth to this case: Roth did not involve “prosecution for private possession of obscene material”. That is true, Roth involved the public dissemination of obscene material. Furthermore, Marshall, pointed out other precedent: the right to receive information and ideas (Griswold v. Connecticut, 1965 – I am not sure why Marshall did not say the “right to privacy” for this case). Marshall contends “For also fundamental is the right to be free, except in very limited circumstance, from unwanted government intrusion into one’s privacy.” Marshall continues “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Marshall's best reason (although weak) for allowing something prohibited in public but legal in private is “the State may no more prohibit mere possession of obscene matter on the ground it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground they may lead to the manufacture of homemade spirits.” Also, since Marshall believes there is no danger “in this case” for the material to get into the hands of children he decides to strike down the law.

Marshall has many flaws in his rationale. First, it sounds as if the obscenity in this case would break the law if it were used in public. Second, although the threat of the material to get into the wrong hands in this case is not an issue, but that does not mean it could not happen in another obscenity - privacy case. Third, Marshall’s example of the chemistry book fails to mention that those homemade spirits made in private would be illegal, but anti-social behavior is not illegal. Fourth, Marshall says intrusion into a person’s privacy is “limited”. That limitation occurs when a person breaks the law as in this instance. Fifth, Marshall talks about our fundamental right to learn, but what does that matter if the material is illegal in public. Besides, one reason obscenity is not protected by the First Amendment is because it offers no social, educational, or moral value. Sixth, Roth is still the law of the land, it was not overruled. Finally, Marshall’s contention that the government doesn’t have the power to control what we read or to control our minds. The government does this all the time such as Nanny State laws, editing history books, restricted book lists high school students can read, indoctrinated teachers, the Fairness Doctrine, and so forth and so on. So, obscenity in private, is the only instance I have seen where someone violated a statute that was illegal in public but the Court ruled it was legal in private.

Sunday, December 31, 2017

Can the Fairness Doctrine be Renewed?

Can the Fairness Doctrine be renewed? I do not believe so. The Federal Communications Commission (FCC) had long required that broadcast stations (both radio and television) to tell both sides of issues. The Reagan administration stopped the practice of the Fairness Doctrine but Democrats have threatened to bring it back. The Fairness Doctrine was founded in the early days of radio and was never challenged until 1969 in Red Lion Broadcasting v. FCC. The Warren Court upheld the Fairness Doctrine and that precedent would have to be overturned and that will not be an easy task. First, let’s examine what the Court said in Red Lion and secondly, let’s evaluate a similar case decided just five years later (1974) by the Burger Court: Miami-Dade Herald v. Tornillo.

First, let’s look at the logic behind the Red Lion decision. In this case, during a 1964 radio broadcast, WGCB in Pennsylvania had a 15 minute piece criticizing Fred J. Cook and his book: Goldwater: Extremist on the Right. The broadcast essentially labeled Cook as a communist sympathizer. Since this “constituted a personal attack on Cook; Red Lion had failed to meet is obligation under the fairness doctrine to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time.” While Red Lion contested “the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they chose from ever using the frequency.” However, the Court held “Congress unquestionably has the power to grant and deny licenses and eliminate stations” that do not conform to the fairness doctrine. Furthermore “No one has a First Amendment Right to a license or to monopolize a radio frequency; to deny a station licenses because ‘the public interest’ requires it ‘is not a denial of free speech.’” Moreover, the Court held “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.” Finally, “In view of the scarcity of broadcast frequencies, the Government’s role in allocating those frequencies, and the legitimate claims of those unable without government assistance to gain access to those frequencies for expression of their views, we hold the ruling at issue here is authorized by the statute and constitutional.”

Secondly, let’s evaluate the logic behind the Tornillo decision. In this case, the issue at hand was whether a Florida Statute “granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.” The Miami Dade Herald refused to publish a response by Tornillo to an editorial written by his opponent weeks earlier. First, the Court is concerned over the scarcity and monopolizing of the media: “The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper’s being owned by the same interests which own a television station and a radio station are important components of this trend toward concentration of control of outlets to inform the public.” Furthermore “The monopoly of the means of communication allows for little or no critical analysis of the media.” The Court genuinely seems concerned about “The abuses of bias and manipulative reporting.” However, “faced with penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right of access statute, editors might conclude that the safe course is to avoid controversy.” Therefore “electoral coverage may be blunted or reduced.” The Court held strongly that this statute is unconstitutional “Even if a newspaper would face no additional cost” to write opposing views. The Court finally held that “how government regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press” is unfounded.

These two case have similarities. First, it is important to note Tornillo did not cite Red Lion. Secondly, both are concerned about the scarcity and monopolizing of media. However, the press is much more scarce and monopolized than the broadcasting industry but the Court found it did not matter it the press case, but it did matter in the broadcast case. That is truly conflicting and could be used to stop the renewal of the fairness doctrine. Thirdly, the fairness doctrine is discriminatory if it applies to broadcasts, but not the press or blogs. Arguably, there is no better place to tell both sides of issues than in our schools (not just in the news), but that is not what is happening. Discriminatory policies can hardly be held constitutional. Finally, I turn to quote by Justice Thurgood Marshall who wrote the majority opinion in Stanley v. Georgia (an obscenity case – within the confines of one’s home). Marshall said governments “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Isn’t this what the government is trying to do in the fairness doctrine? People can turn to whatever broadcast they want, if they do not like it, they can change the station. The government does not have to dictate what is broadcast.