Tag: free speech

Silencing Science

Again, before we get into this, here is where I am coming from: global warming is real; we are almost certainly causing it; it is very likely to be bad; proposed liberal solutions are terrible and often counterproductive.

To wit:

A landmark bill allowing for the prosecution of climate change dissent effectively died Thursday after the California Senate failed to take it up before the deadline.

Senate Bill 1161, or the California Climate Science Truth and Accountability Act of 2016, would have authorized prosecutors to sue fossil fuel companies, think tanks and others that have “deceived or misled the public on the risks of climate change.”

The measure, which cleared two Senate committees, provided a four-year window in the statute of limitations on violations of the state’s Unfair Competition Law, allowing legal action to be brought until Jan. 1 on charges of climate change “fraud” extending back indefinitely.

“This bill explicitly authorizes district attorneys and the Attorney General to pursue UCL claims alleging that a business or organization has directly or indirectly engaged in unfair competition with respect to scientific evidence regarding the existence, extent, or current or future impacts of anthropogenic induced climate change,” said the state Senate Rules Committee’s floor analysis of the bill.

No no no no no no no no no no no NO NO NO! Bad legislature! Bad, bad legislature. Go sit in a corner and think about what you almost did.

I’m not going to mince words: this bill was (and probably will be again) a totalitarian piece of shit. It would have opened up climate skeptics to lawsuits because of their speech and opinions (keeping in mind that “climate skeptics” is class that often includes me because I oppose liberal solutions to global warming). Not only that, it would have extended that liability back for 30 years, allowing climate skeptics to be sued for statements they made when the science was way less certain.

Not only is the bill an attack on the First Amendment, it’s an attack on science. Science benefits from criticism, even criticism from cranks. In the case of climate science, methodology has been improved and data made more readily available to the public in response to skeptics. This has made the case that global warming is real stronger.

I understand where this is coming from. Climate scientists have found themselves the targets of a massive disinformation campaign. Garbage climate memes (polar ice caps are growing! Global cooling! It’s the sun!) proliferate no matter how often and how thoroughly they are debunked. In many cases, it’s gotten personal with online attacks and death threats.

But as Megan McArdle pointed out, fighting fire with fire isn’t helping:

There is a huge range of possible beliefs that go into assessing the various complicated theories about how the climate works, and the global-warming predictions generated by those theories range from “could well be catastrophic” to “probably not a big deal.” I know very smart, well-informed, decent people who fall at either end of the spectrum, and others who are somewhere in between. Then there are folks like me who aren’t sure enough to make a prediction, but are very sure we wouldn’t like to find out, too late, that the answer is “oops, catastrophic.”

These are not differences that can be resolved by name calling. Nor has the presumed object of this name calling — to delegitimize thoughtful opposition, and thereby increase the consensus in favor of desired policy proposals — been a notable political success, at least in the U.S. It has certainly rallied the tribe, and produced a lot of patronizing talk about science by people who aren’t actually all that familiar with the underlying scientific questions. Other than that, we remain pretty much where we were 25 years ago: holding summits, followed by the dismayed realization that we haven’t, you know, really done all that much except burn a lot of hydrocarbons flying people to summits. Maybe last year’s Paris talks will turn out to be the actual moment when things started to change — but having spent the last 15 years as a reporter listening to people tell me that no, really, we’re about to turn the corner, I retain a bit of skepticism.

(McArdle, who thinks global warming is real and we should take action just in case it turns out be very bad, was immediately branded a Koch shill and a denialist for having the temerity to suggest that calling every heretic a Koch shill and a denialist wasn’t a great way to promote science. So, yeah. She also links Warren Meyer’s outstanding series of posts on why is a “lukewarmer”. I don’t agree with everything he says, but he has a very good grasp of the science and makes the case for a conservative set of policies to address global warming.)

This is long past being absurd and going into territory that’s outright dangerous. We have Attorneys General investigating “denialists”. We have cartoons depicting violence against “denialists”. We now have a legislature trying to effectively silence “denialists” by gutting the First Amendment. Global warming is becoming less of a science/policy issue and more of a Culture War issue and we really can’t afford that.

Enough. It’s tiring, I know. But the only way to fight bad speech is with good speech. That has always been the case, it is currentlty the case and it always will be the case. If the global warming alarmists want to make some progress, decoupling the science case that global warming is real from the political case that we must do X, Y and Z would be far more beneficial than passing blatantly unconstitutional law to try to shut people up. You’ll get a lot more people to talk about global warming if talking about global warming doesn’t necessarily mean giving government even more power over our lives.

Update: In related news, Andrew Cuomo has issued an executive order to boycott businesses that boycott Israel. I support Israel. I think the boycott business is ridiculous. I think a government moving against boycotters is a horrific intrusion on free speech and free association.

Chaos in San Jose


Protesters and supporters of Donald Trump clashed in the streets of San Jose, California, Thursday night after the presumptive GOP nominee held a rally.

Protesters waved Mexican flags and one could be seen burning an American flag, with another burning Trump’s “Make America Great Hat.” Some chanted “F— Donald Trump” and “Donald Trump has got to go” outside the San Jose Convention Center, where Trump held his rally.

Reports include Trump supporters being egged, supporters and protesters being punched and protesters jumping on cars and screaming about how we need socialism (the irony of far more violent protesters over the effects of socialism in Venezuela being lost on them).

This is insane. This is thuggery. This is unacceptable. A lot of the commentary focuses on how this plays into Trump’s hands and will rally his support. Maybe. But I find myself agreeing with Chris Hayes:

And as for my feelings about this:

Trump is bad Presidential candidate and I think would likely make a bad President. His “plan” for expelling eleven million illegal immigrants has the very real potential to be a humanitarian disaster. And he has no respect for other people’s First Amendment rights, having brought numerous SLAPP lawsuits to silence his critics and making open threats of what he would do, as President, to judges and reporters he doesn’t like. But he’s not Hitler. I have no problem with people protesting against him or his policies. But when they attack his supporters or try to stop him from speaking, they’ve crossed a line.

This is usually the point where some helpful person will point out the First Amendment only protects us from government censorship. And they’re right. However, as Greg Lukianoff has argued, it is critical that we not only respect the First Amendment but that we cultivate a culture of free speech. We ned a country where the mere idea of silencing people we don’t like through thuggery, be it individuals or government, is repellent. But to far left, the idea of letting people speak has become anathema. We used to boast about letting Nazis and the KKK — real genuine hate groups that advocated violence — speak what was in their twisted little minds. Now we descend into madness on the words of a two-bit New York real-estate mogul.

Let Trump speak. Let people support him. And respond to thing you don’t like with more speech and rallying your supporters. That’s the way you deal with politicians and political movements you don’t like. And as long as you’re doing that, I will support your right to speak just as vigorously as I support Trump’s.

No, You Can’t Sue, Part Duh

I’ve made it clear where I stand on global warming: I think it’s real, I think we are causing it, I’m pretty sure it’s going to be bad, I don’t think our government has a clue what to do about it. Yet, I feel very comfortable saying that this is bullshit:

The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore.

“CEI will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association for Attorney General Walker to bring such intimidating demands against a nonprofit group,” said CEI General Counsel Sam Kazman. “If Walker and his allies succeed, the real victims will be all Americans, whose access to affordable energy will be hit by one costly regulation after another, while scientific and policy debates are wiped out one subpoena at a time.”

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.

This isn’t coming out of nowhere. Several climate activists have bene calling for precisely this sort of investigation for a while and several other AG’s have been pondering such a move. But while I strongly disagree with the CEI about the reality of climate change, this is an extremely chilling move (no pun intended).

Walter Olson again:

If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) groups conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. Like yours.

This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I note in a new piece at Cato, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.

Make no mistake. This isn’t about racketeering and it certainly isn’t about science. It’s about shutting people up. And as a defender of free speech, I will defend it for everyone. The CEI is not engaged in criminal conduct. Nor are they part of a shadow conspiracy of evil oil interests to wreck the planet. At worst, they are guilty of deception in talking about global warming. More likely, they are guilty of motivated reasoning, rejecting global warming because they don’t want it to be true. Neither of those things is a crime. McArdle, on the similar BS inquiry into Exxon Mobil:

State attorneys general including Walker held a press conference last week to talk about the investigation of ExxonMobil and explain their theory of the case. And yet, there sort of wasn’t a theory of the case. They spent a lot of time talking about global warming, and how bad it was, and how much they disliked fossil fuel companies. They threw the word “fraud” around a lot. But the more they talked about it, the more it became clear that what they meant by “fraud” was “advocating for policies that the attorneys general disagreed with.”

New York Attorney General Eric Schneiderman gave the game away when he explained that they would be pursuing completely different theories in different jurisdictions — some under pension laws, some consumer protection, some securities fraud. It is traditional, when a crime has actually been committed, to first establish that a crime has occurred, and then identify a perpetrator. When prosecutors start running that process backwards, it’s a pretty good sign that you’re looking at prosecutorial power run amok.

Frankly, the CEI is an odd place to start if we’re going to start bashing anti-science people. The CEI, at worst, is delaying action on a climate crisis that might have negative effects in the future (pushing aside pseudoscientific theories that global warming created ISIS and such). But anti-GMO activists, by contrast, are killing people right now. They’re preventing the use of the golden rice which could stop thousands of people from going blind right now. And don’t get me started on the anti-Vaxxers. But you don’t hear anyone talk of prosecuting them. Why not? Because they’re not associated with Evil Big Oil.

This is garbage. Attorneys General who engage in this sort of tyrannical lawfare need to hounded out of office. This is a companion to my post below on lawsuits against gun companies and it has the same principle: the law is not a weapon to use against people you disagree with. Because once we establish that it is, it will take about ten seconds for that law to be used against your interests.

Book Review: Unlearning Liberty

I just finished reading Greg Lukianoff’s excellent book Unlearning Liberty. Lukianoff, who is the President of the Foundation for Individual Rights in Education (aka, the FIRE) has spent the last decade fighting attempts in higher education to stifle free speech, trample on free association and turn campuses to indoctrination centers.

I highly recommend the book. It’s four years old but it’s age is actually a strength. Over the last year, we have witnessed an explosion of illiberal, speech-crushing actions on college campuses. We’ve seen communications professors try to “muscle” the press. We’ve seen pro-Trump chalking decried as “hate speech”. We’ve seen students scream at a professor because he thought they could decided for themselves what Halloween costumes were appropriate. We’ve seen student demands less freedom, more censorship and the hiring of hordes of new administrators to teach sensitivity and fight racism (and then wonder why college costs so much).

This eruption of political correctness didn’t come from nowhere. It was built over two decades and Unlearning Liberty details how it was built. Lukianoff shows how speech codes (which afflict about half of college campuses) have been used to silence dissent and promote liberal agendas (and to silence critics of administrators and student government). He describes professors declaring certain ideas to be undebatable in their classroom. He details how universities will allow exclusively black or gay groups on campus, but fight against exclusively Christian groups. He details a maddening questionnaire incoming students are forced to fill out that asked them such things as whether they would have sex with someone of a different race. And then he details how refusing to answer such questions could earn mandatory sensitivity training sessions with crackpots teaching from “oppression wheels”.

Viewed through this lens, the current climate on campuses is not surprising. This is simply the poison hatching out after years of indoctrination (that really starts in high school). This isn’t just a generation of crybaby students. It’s a generation that has been taught from Day One that liberal ideas are right, that disagreement is hate and that further indoctrination is good.

(It has also empowered and enriched people who are, frankly, crackpots. When you read about what these people believe (or claim to believe) it’s crazy totalitarianism. Penn and Teller once had an interview with a “cultural auditor” who makes tons of money teaching about political correctness on campus. Every word this man said was garbage, a word salad of high-sounding nonsense. And the stuff he was teaching was frequently racist garbage, such as it was “insensitive” to expect black people to be on time for things.)

Lukianoff describes himself as a liberal Democrat but has admirably spent much of his time fighting for campus conservative and Christians with whom he disagrees. The book will give you an excellent contrast between a classical liberal like Lukianoff and what Andrew Sullivan has dubbed “the illiberal left” — a group of Left Wing advocates who have decided that free speech, free association and free religion can not be tolerated if it might disrupt their agenda.

One final thought that struck me when I finished the book: has political correctness ever solved a problem? Ever? I’m serious about this. Has all this nonsense with safe spaces and speech codes and affirmative consent and intersecionality and oppression wheels actually solved any of society’s problems?

I would argue that it hasn’t. In fact, I would argue that by depriving us of our ability to discuss issues of gender and race in frank terms, by stomping down ideas considered “incorrect”, by putting everyone on tenterhooks, political correctness has made things worse. It has created political paralysis on key issues. It has created armed political camps that lack the ability to discuss and debate issues lest someone be offended. It has left institutions of higher learning in the hands of cranks who have no idea what they’re doing. In fact, Lukianoff thinks the illiberalism on college campuses is a big reason why our politics have become so partisan: a generation of college students are coming of age who have never had to engage opposing ideas or consider that their own ideas might be wrong. They are used to retreating into ideological “safe spaces” where their ideas can not be challenged. And, of course, only talking to people with whom you agree has a tendency to make one even more extreme.

Look at a serious issue: sexual violence on campus. We can’t warn students about the connection between alcohol and sexual violence because that’s blaming the victim. We can’t have fair trials because the issue is too important. We push this idiotic model of affirmative consent which has little bearing on the realities of human sexuality. Brandeis, a university named a fierce civil liberties advocate, found a student guilty of sexual misconduct with no trial because his boyfriend decided after the relationship was over that some stuff had not been consensual. This process is becoming extremely expensive, driving up college costs and creating a virtual police state.

(Each link in that paragraph, BTW, is a must-read.)

But all this is necessary, we are told. All of this is critical to destroying rape culture and making campuses safe.

The problem: according to the Left, it’s not working. The Left claims that one-in-five women on campuses are victims of sexual violence. Let’s put aside that this number is almost certainly a wild exaggeration. If we accept it at face value, this means that all this political correctness has made things worse for women, not better:

Sexual violence in our society is down — way down. According to the Bureau of Justice Statistics, rape has fallen from 2.5 per 1000 to 0.5 per thousand, an 80% decline. The FBI’s data show a decline from 40 to about 25 per hundred thousand, a 40% decline (they don’t account for reporting rate, which is likely to have risen). RAINN estimates that the rate has fallen 50% in just the last twenty years. That means 10 million fewer sexual assaults.

Yet, for some reason, sexual assault rates on campus have not fallen, at least according to the favored research. They were claiming 1-in-5 in the 80′s and they are claiming 1-in-5 now. The sexual violence rate on campus might fall a little more slowly than the overall society because campus populations aren’t aging the way the general population is and sexual violence victims are mostly under 30. But it defies belief that the huge dramatic drops in violence and sexual violence everywhere in the world would somehow not be reflected on college campuses.

I explain how you can unbias the current research to show that sexual violence has, in fact, declined on college campuses. But if you accept the Left’s number, it has not. All that censorship, all that sensitivity, all those kangaroos courts. And, if you believe them, the result is that women are in more danger than ever.

Political correctness has also deprived us of our ability to recognize and deal with actual racism and misogyny. After all, when you’re kicking students off campus for just having a book about the decline of the KKK, how are you going to emotionally deal with, say, some racist asshole who goes into a black church and murders a bunch of people? When you’ve called the campus vice squad on someone for complimenting a woman’s appearance, how are going to deal with someone demanding sex for a promotion?

You have to be tough to deal with discrimination. And political correctness doesn’t make people tough; it makes them weak. It makes them incapable of dealing with ideas they don’t like without three college administrators holding their hands. I’ve had to deal with anti-Semitism from time-to-time. Would I be more or less capable of doing that if the mere sight of a Christmas decoration gave me a fainting spell?

I’m not saying that people should ignore “microagressions” or small acts of racism and sexism that many people experience very day. I’m saying we need to keep thing in perspective, to differentiate between things we can deal with by engaging other people and things we need to literally make a federal case over. Screaming racism and bringing the wrath of a college administration on someone over a racist joke is not going to solve anything. It’s going to make people defensive and entrench any discriminatory beliefs they have.

Even worse, a lot of the time, the dictatorial powers we have given college campuses are being used to silence and punish the very students they are supposed to help. See, e.g., Brandeis putting a black mark on gay student’s record without so much as a hearing.

If you were Mr. Evil Republican White Christian Male and wanted to maintain racism, sexism and bigotry in our society, you’d be hard pressed to find a better weapon than today’s political correctness. It makes people weak and hypersensitive. It brings debate and understanding to a grinding halt. And it’s spreading out from college campuses to infect the media, the workplace and our personal lives.

So what do we do about it? For one, keep calling it out. Young people especially need to be calling this out. On a political level, the federal government needs to stop supporting and even mandating this garbage through Title IX and other provisions. Even better, it could come out and make a bold statement against unconstitutional speech codes and indoctrination, declaring that it will always throw its weight on the side of free speech and free minds. If college campuses knew the Justice Department would side with a student punished for speaking his mind, they’d think twice about their ridiculous speech codes. Simply putting down the Federal foot down on the side of decency and respect would go a long way toward restoring some sanity to our campuses.

So, buy Lukianoff’s book. And better yet, support the FIRE. The last thing we need is this country is another generation of voters who retreat into their own navels when their ideas are challenged.

Chicago Chaos

So this happened:

Donald Trump’s campaign on Friday postponed a rally in Chicago amid fights between supporters and demonstrators, protests in the streets and concerns that the environment at the event was no longer safe.

The announcement, which came amid large protests both inside and outside the event at the University of Illinois at Chicago, follows heightened concerns about violence in general at the GOP front-runner’s rallies. Illinois holds its Republican primary on Tuesday.

Hundreds of demonstrators packed into an arena, breaking out into protest even before Trump had shown up. At least five sections in the arena were filled with protesters.

“Mr. Trump just arrived in Chicago, and after meeting with law enforcement, has determined that for the safety of all of the tens of thousands of people that have gathered in and around the arena, tonight’s rally will be postponed to another date,” the Trump campaign said in a statement. “Thank you very much for your attendance and please go in peace.”

Several fistfights between Trump supporters and protesters could be seen after the announcement, as a large contingent of Chicago police officers moved in to restore order.

Supporters of Trump still inside chanted “We want Trump” after the event was canceled. Protesters, meanwhile, shouted “We shut s*** down” and “We stumped Trump.” Others chanted “Bernie” as supporters whipped out Bernie Sanders campaign signs.

A few things to unspool here.

First, I don’t have a lot of respect for the protesters. I understand that they don’t like Trump; I don’t like Trump. But disrupting his campaign and then boasting about how you shut someone up is simple thuggishness. Unfortunately, it’s the kind of thuggishness we’ve come to expect from the Left these days, especially from those in college or recently graduated. It’s not enough to disagree; it’s not enough to speak against; the opposition must be silenced.

I want to be clear: Donald Trump’s First Amendment Rights were not violated. The First Amendment protects us from government censorship, not private condemnation or censorship. But the tendency … no, the need of the Left Wing to silence those they disagree with is appalling. It used to be that the Left was proud of letting the KKK or Nazis speak … actual KKK and Nazi people, not people they were calling Nazi because they couldn’t refute their arguments.

Had the protesters made their point in some way without shutting down a political rally, I’d be fine. The Chicago protests grew out of comments Trump has made about police officers being the most oppressed people in the country. Chicagoans — who recently saw a long-buried video of an officer shooting a suspect who was walking away and found out about a dark site where thousands of suspects were detained and brutalized — don’t exactly agree. But disrupting a rally to the point of cancellation doesn’t make that point; it distracts from it.

Moreover, this plays right into Trump’s hands. So much so that many on Twitter were joking that Trump probably paid the protesters to do this. Trump’s entire schtick is that the voices of the American people are being silenced by a know-it-all politically-correct elite who have decided, without any input from us, that certain speech and certain viewpoints are unacceptable. How does this change that narrative? It doesn’t; it reinforces it. It convinces the American people, more than ever, that the political elite don’t want to hear what we have to say.

(Trump understands this. The decision to cancel the rally was his. The Chicago PD has said they were confident they could have kept the rally under control.)

Now it is true that Trump’s rallies have been the site of pro-Trump violence. It is also true that Trump himself has encouraged violence and made excuses for it. Last week, one Trump supporter sucker-punched a protester. Trump almost defended the punch, claiming (falsely) that the protester was hitting people and flailing around. A few days ago, his Campaign Manager grabbed a reporter hard enough to leave bruises. Trump’s people are still pretending it didn’t happen, despite video, audio and witnesses supporting the reporter’s account. In short, Donald Trump complaining about violence impinging his right to free speech is like Hillary Clinton complaining about dishonesty in politics.

But the response to that is not to “bring more muscle” in the words of a certain recently fired Mizzou professor. The response is not to shout him down and stop him from speaking. The response is to show that you are better: that you will make your point while respecting his right to make his.

Unfortunately, that kind of mutual respect is no longer being taught to our young people. All that matters is “social justice”. Well, they might just “social justice” their way right into a Trump presidency.

Friday Roundup: Guns, Money and Gag Orders

A few stories to close out your week:

  • Following on Alex’s post on the attempt to squash free speech at Reason, the Best Magazine on the Planet has gotten the gag order lifted and broken their silence. What they relate is appalling. Not only did the USA try to get personal information on Reason’s commenters, they got a gag order to try to prevent Reason from notifying those commenters that the government was seeking their information (Reason had already notified them by the time the order came). It’s a must-read on a government that is determined to shred any semblance of privacy.
  • Earlier this week, Treasury announced that the new $10 bill will have a woman on it, although it’s not clear who that will be or how she will “share” the bill with Alexander Hamilton. As someone who favors a radical overhaul of which faces are on our currency, I’m moderately in favor of this. But I much prefer the idea of putting a woman on the $20 for reasons articulated by Jillian Keenan (namely that Jackson was a racist slaveholding genocidal shredder of the Constitution). Still, there are lots of women we could honor: Harriet Tubman, Harriet Beecher Stowe, Eleanor Roosevelt, Elizabeth Cady Stanton, Susan B. Anthony, Sally Ride, Clara Barton. I would take all of these over Jackson. And I wouldn’t mind if we took all the politicians off our currency.
  • How bad was the security at OPM that led to the huge data breach? Really really bad. And they won’t fix it. Change we can believe in!
  • If you’re having trouble finding delicious barbecue, blame government. They are literally outlawing the kind of slow-cooking methods that make for such deliciousness. And it’s not really clear why other than “because they can”.
  • It will come as no surprise to readers of this blog that Paul Krugman and the Keynesians are full of it again. They are citing Iceland an example of how expansionary fiscal policy can save an economy. The problem? In this thing called reality, Iceland endorsed a severe austerity, with significant spending cuts and tax hikes.
  • The blamestorming for Charleston has already begun. Here is a quick refresher about the media’s desperation to blame horrific acts of violence on the Right Wing.
  • And finally, Reason has a feature on a college student who was busted with pot, turned informant and was murdered. No one is accountable, as usual. I’ll spare you my usual War on Drugs rant, in favor of my other favorite one: when dealing with cops and prosecutors, always get a lawyer. Never negotiate on your own.

Texas Shooting

Now that the facts are out, I have a a few random thoughts about Sunday’s shooting in Texas, which apparently involved two wannabe jihadis trying to shoot up a meeting where people would draw images of Muhammed.

First, I have no use for Pamela Geller and her compadres. They spew anti-Islamic invective whenever they can, are frequently factually challenged and hold events like this to be deliberately provocative.

That having been said, the blame for this is totally on the shooters and their vile religious beliefs. Every religion has its critics and its mockers. But you don’t see Christians, even fundamentalist ones, shooting up meetings of atheists or trying to murder Richard Dawkins. As Amy Alkon reminds us, there is no free speech in fundamentalist Islam. The radicals regard murdering “blasphemers” as their duty. We can never forget that.

Second, this event is protected speech no matter how much the pantywaists and thought-controllers try to pretend it isn’t. Our commitment to free speech is most tested with provocative or even insulting speech. And our commitment should stay strong even in the face of gunfire.

Third, according to Mother Jones, this was not a mass shooting stopped by someone with a gun. As I’ve noted many times, they require four people to be killed before it counts as a mass shooting or an attempted one.

And finally … Texas? Seriously? You guys thought you were going to win a shootout in Texas? When I lived down there, I was the least-armed person in my carpool lane.

Don’t Silence Mumia

Last year, the State of Pennsylvania passed the Revictimization Relief Act, a bill designed to allow crime victims to sue if criminals engage in speech that causes them mental anguish. Perhaps the best way to illustrate what the law is about is to look at why it was passed: Mumia Abu-Jamal had given the commencement address at Goddard College. He gave this via videotape because Abu-Jamal is in prison for the murder of Daniel Faulkner. And Faulkner’s family is getting a little tired of seeing his murderer bruited about as some great public intellectual.

Let’s get one thing straight: I think Mumia is guilty as hell. Faulkner was shot by a gun consistent with Mumia’s revolver, which had fired five shots and was found next to him. Mumia was himself shot by Faulkner. Four witnesses placed him at the scene. To believe Mumia is innocent, you have to believe … actually, I’m not sure what you have to believe because the theories of his innocence make no sense and Mumia has not given a consistent account of what happened. Maybe a one-armed man ran in, grabbed Mumia’s gun, shot the cop and left.

The protestations of his innocence revolve around him being an intellectual and a supposedly peaceful man. That’s as maybe but anyone is capable of murder. We don’t convict people of murder because they’re the kind of people who would probably kill someone and we don’t acquit because it’s, like, totally not like them to gun down a cop. I tend to focus my attention on the evidence, which was and is damning.

I also have little time for Mumia’s supporters. It’s not just that they lavish praise and support on him (and, in some cases abuse on Faulkner’s widow and accusations of corruption against Faulkner). It’s that they do so while ignoring the hundreds of innocent people who have languished in prison and on death row for decades but aren’t celebrities.

That all having been said, the Pennsylvania law crosses me as blatantly unconstitutional. And it was struck down by a federal court this week. Volokh and Randazza have a breakdown of the decision. Bottom line:

First Amendment protection extends to convicted felons. The Act is in violation of the First Amendment as it is content based, overbroad, and vague in its coverage of “offenders” and speech “conduct.” Victims have other forms of redress and can use their own free speech to combat that of inmates.

Call Mumia a murderer. I’ll do that right now: he’s a murderer. Call the school that invited him to do their commencement idiots. I’ll do that, too: they’re idiots. But restraint of his speech and those who want to promote his speech is wrong and unconstitutional. As we like to say, it’s the speech you hate that needs the most protection.

There Should Always Be Freedom in OU

Over the weekend, you may have seen the video of the SAE fraternity at the University Oklahoma singing a racist song about how there would never be black SAE. Well, they were right about that. There never will be a black SAE. This is because the University responded to the video by dissolving the chapter of the frat and expelling two of the students.

The former decision is right and proper, I think. However, I’m having serious problems with the latter. And so are a lot of people:

The University of Oklahoma’s decision to expel two fraternity members who led a racist chant on a bus provoked criticism Wednesday from several legal experts who said that the students’ words, however odious, were protected by the First Amendment’s guarantee of freedom of speech.

“The courts are very clear that hateful, racist speech is protected by the First Amendment,” said Erwin Chemerinsky, a constitutional scholar and dean of the law school at the University of California, Irvine.

Official punishment for speech could be legal if the students’ chant constituted a direct threat, leading a reasonable person to fear for his or her safety, or if it seemed likely to provoke an immediate violent response, according to Mr. Chemerinsky and several other legal scholars, liberal and conservative alike.

But in this case, these experts said, there is no evidence of any direct threat or provocation, and as a publicly financed institution, the university is subject to constitutional boundaries.

I’ve seen similar commentary all over the blogosphere. First Amendment badass Mark Randazza:

I’m not going to get into a discussion of whether I approve of it or not. (I don’t, but that’s all I’ll say about it). You have the right to be racist. I want that freedom. But, somewhere along the way, we decided that eliminating bad thoughts is more important than freedom.

Like it or not, these kids were expressing a political and social opinion. I do not care if you agree with it or not. They have a First Amendment right to freedom of association – that means they can be in a private club that says “no niggers allowed.” I can’t say that I would want to belong to such a club, but the KKK and the American Nazi Party not only have a right to exist, but serve a valuable function — even if that function is only to serve as a negative example.

Further, they have a right to express themselves — even with views that you might find abhorrent. That’s what freedom is.

Several scholars have argued that the song constitute an action and “threat”. I’ll let Scott Greenfield take that one, referencing the famous Skokie cases where the ACLU defended the free speech rights of Nazis:

These SAE boys don’t deserve the protection of the First Amendment, any more than the neo-Nazis in Skokie did. But we don’t do it for them. We do it for us. We do it because speech is either protected for all or protected for none.

There are no wiggly lines that allow us to find some sneaky back-door around the protections of the First Amendment. There is no combination of words expressing our feelings about the relative worth of rights, the relative horror of flagrantly racist speech, the unworthiness of expression, that allows us to shed the protection of the First Amendment when we feel so strongly that it should not be provided. This is precisely when the protections of the Constitution must kick in, must apply, must be upheld in the face of our strongest feelings that we don’t want it to.

You can read more from Eugene Volokh and Doug Mataconis, who get into the Constitutional issues. As a public university, the University of Oklahoma is bound to respect the free speech rights of their students. And the attempt to end-around the First Amendment by claiming a racist song constitutes an “action” is offensive. Greenwald had this to say, albeit in a different context:

We’ve said it a million times: free speech isn’t just for speech we like. It’s for speech we hate. It’s for speech that offends us. It’s for speech that shocks the senses. But more than that: I want the bigots of the world1 to feel like they can say what they want. Which do you think is better? A society in which racists go underground? Or a society in which the ugliness be out and open for everyone to see? When I was a kid, some anti-semitic bigots burned a cross on the lawn of my synagogue. That was much scarier and more dangerous than a bunch of KKK jerks marching along the highway.

It’s become common to refer to incidents like this as “teachable moments”. Maybe. But if it is, the lesson being taught is the wrong one. The lesson is that we will punish speech we don’t like.

The other day, the ACLU took another unpopular stand: defending the free speech rights of the Washington Redskins. In doing so, they quoted the great sage Jeffrey Lebowski: “you’re not wrong; you’re just an asshole”:

The ACLU has a history of defending the speech rights of groups we disagree with, because the First Amendment doesn’t protect only popular ideas. The Washington team’s choice of name is unfortunate. They should be – and are being – pressured to change it. But it isn’t government’s role to pick and choose which viewpoints are acceptable and which are not.

Readmit the students, OU. Make this a teachable moment. And the lesson to teach is that free speech applies to everyone, including assholes.

1. Putting aside whether these students are actual bigots or are just drunken idiots singing a dumbass song.

Update: Jamelle Bouie

As far as the University of Oklahoma is concerned, I should say I’m not thrilled with the punishment. Disbanding the fraternity might be justified, but expelling students for hate speech is an extreme response that runs afoul of free-speech norms, if not the First Amendment.

Education would be better. The University of Oklahoma is two hours away from Tulsa, which in 1921 was the site of one of the worst anti-black race riots in American history. More than a thousand whites stormed the black district of Tulsa and razed it to the ground, killing hundreds and leaving thousands homeless and destitute. Black Tulsa never recovered, but memories of the attack live on among descendants of the victims.

Don’t expel the boys. Bring them to Tulsa. Have them see the memorials and talk to the children of survivors. Give them a chance to see what their words actually mean, and whether they want to be the kinds of people who sing about lynching for fun.


No More Bloody Sundays

Today marks the 50th anniversary of “Blood Sunday”, the day when civil rights demonstrators marching from Selma to Montgomery were set upon by a law-enforcement organized mob at the Edmund Pettis Bridge. There’s a lot to say about it, including the lame-brained decision of GOP leaders to not attend. But one thing really jumped out at me looking at all the grandstanding politicians.

There is no way a Selma protest would be allowed today:

Today, it would be impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway. Under contemporary legal doctrine, the Selma protests would have ended March 8, 1965.

Starting in the 1970s, however, the federal courts began rolling back this idea. A series of rulings erected what is known as the public forum doctrine, which lets a city, state or the federal government decide whether public property can be used for 1st Amendment activities. It also means that if courts do not designate a place a “traditional public forum,” government may forbid its use as a site of protest altogether.

Under this doctrine, the federal government has completely banned large protests at Mt. Rushmore and the Jefferson Memorial.

In fact, a few years ago, a bunch of people were arrested for dancing at the Jefferson Memorial, a decisions the Courts upheld. I can’t imagine what Jefferson, a staunch advocate of free speech, would have said about it.

Even in traditional public forums, government may strictly regulate the time, place and manner of speech activity. The National Park Service, for example, has created “free speech areas” and limited protests to them. Predictably, the federal courts have sustained this policy.

Likewise, local, state and federal governments have banned dissent near major political events, such as the presidential nominating conventions.

Protesters are relegated to “designated speech zones,” sometimes blocks or miles from the venue. The federal courts have sustained such regulations as justifiable security measures. The purpose and effect of these regulations, however, is to render the protesters invisible.

Krotosyznski goes on to note the crackdown on the peaceful side of the Ferguson protesters, which included firing tear gas at people standing on their own lawns. The courts belatedly decided that this violated the free speech rights of the protesters, but it was long past. Whether the Ferguson protests had merit or not, given the DOJ reports, is kind of beside the point. The point is that kind of heavy-handed response has become routine for protests that do not have official government sanction.

Many of the Tea Party protests got permission for their activities, but sometimes only after delays and only in designated areas. And the idea that the Tea Party need permission to oppose government policy is fundamentally ridiculous.

So, yeah, follow the commemorations of the Selma march today. But remember that every single one of those politicians speaking about Dr. King’s courage would have shut him down in a heartbeat today. Because for worshippers of government power, no matter what their political persuasion, dissenters are a problem, not something to be proud of. They are only something to be proud of decades after the fact.