Supreme Court – Page 6 – The Wrongologist

Finally, A Culture War Dems Can Win

The Daily Escape:

Irises on the beach, OR – June 2022 photo by Edwin Buske Photography

Our visit to Asheville, NC for a family wedding was a great success. Now we return to a world where love doesn’t conquer all.

Much has been written about whether the Democrats will be helped in the mid-term elections by the Supreme Court’s Dobbs decision overturning Roe. Recent polls show a shift in attitude away from Republicans in Congressional races. Simon Rosenberg of NDN, a Washington think tank, sees a big change in political polling since Dobbs. Rosenberg tweeted:

These data suggest voters have swung 3-5 points towards Democrats in recent weeks. Five of the nine polls show meaningful movement toward the Democrats since their last poll.

And that polling shift seems to have carried over to the Senate. New polling from Future Majority (FM) finds a far better Senate landscape for Democrats. Here are a few data points from FM:

AZ – Sen. Mark Kelly leads Masters, 48-39, Lamon 47-41. He trailed a generic Republican 43-45 in March.
GA – Sen. Ralph Warnock leads Walker 48-44.  He trailed 48-49 in March.
NH – Sen. Maggie Hassan leads Bolduc 49-40.  They didn’t poll NH in March.
NV – Sen. Cortez Masto leads Laxalt 46-43.  She trailed Laxalt 43-45 in March.

Most important, FM found that enthusiasm to vote among Democrats has overtaken Republican enthusiasm. After trailing Republican motivation throughout most of 2022, now 92% of Democrats say they are extremely motivated to vote in November, while 89% of Republican voters say they are extremely motivated to vote. This is a seven-point boost in Democrats’ 85% enthusiasm in March.

Also, they found that reproductive freedom is a top priority for Democrat voters in November: 77% of Democrats and 45% of Independents identify the SCOTUS decision to overturn Roe as a top priority in their vote. It’s the top issue for Democrats and the 2nd most important issue to Independents.

If the FM polls are accurate, Democrats leading in the generic ballot is a game-changer for the 2022 mid-terms. The election is now competitive. It’s no longer a Republican wave election. But the election isn’t being held today, it’s four months away. And these polls, along with all the others, are fallible. But the times make it both right and important for Dems and Independents to be energized.

We need to hammer home that America had a coup against our government led by the last Republican president. And this year, we’ve seen the Republican-dominated Supreme Court rule against the majority view of the country on guns, abortion, religion and climate change.

It isn’t a stretch to say that the Court’s Conservative majority may side with Republicans when their partisans try to decide the next few elections for us. After years of change and accelerating division, the last few months have made it perfectly clear just what Republicans do when they get political power.

One big question in November is if the under-30 voters who helped power the Democrats’ wins in 2020 will show up in 2022. David Hogg, one of the Parkland shooting survivors who has become a political activist, tweeted at his fellow Gen Z cohort:

“I understand how tone deaf it sounds to say we need to keep voting but it’s important to remember a couple things-

1.) It’s one day every 2 years 2.) It’s a tool we have in our tool box to create change- we can’t afford to not use every tool we have 3.) If it didn’t change anything they wouldn’t be trying so hard to stop us

6.) When hardcore conservatives didn’t like the Republican Party in the 1960-70s their solution wasn’t to stop voting it was the opposite. It was voting WAY more in primaries and growing the power of their vote. They turned out every election for decades and that brought us here.

7.) The solution is NOT to stop voting which would literally be the worst possible thing we could do. It will ensure the only people who stay in power are Dems who refuse to abolish the filibuster and republicans. We need to grow our lead in the senate and keep the house.

8.) Power is grown over decades of voting for the best candidates in primaries and then blue no matter who. It should be obvious but the solution to growing our power isn’t to diminish it by not voting. It’s to vote for the best candidate and hold them accountable.’

Hogg gets it.

The abortion war should unite Democrats, while dividing Independents and Republicans, giving Dems an opening, if they know how to use it.

Democrats finally have a culture war they can win.

Saturday Soother, Independence Weekend – July 2, 2022

The Daily Escape:

Street Art, Riverview Station, Asheville, NC – July 1, 2022 iPhone photo by Wrongo

What is the essence of America? Finding and maintaining that perfect, delicate balance between freedom “to” and freedom “from” –Marilyn Vos Savant

Our stay in North Carolina has been grand, and it’s nearing an end since today is our grandson Conor’s wedding. We will soon head north, spending July 4 at Monticello, Jefferson’s home. The anniversary of our independence is also the day that Jefferson died. In a coincidence, both John Adams and Thomas Jefferson died on the same day, July 4, 1826. That was the 50^th anniversary of the signing of the Declaration. We’re really looking forward to spending Independence Day on Jefferson’s turf.

Wrongo has mentioned “The Cause, The American Revolution and its Discontents, 1773-1783” a book by Joseph Ellis about how the founders had to create a blurry vision of the revolution because colonists didn’t think of themselves as Americans. They had suspicions of others in different colonies, and they had different economic goals. So the founders described their fight for independence as “The Cause”, an ambiguous term that covered diverse ideas and multiple viewpoints. It succeeded in unifying them against the British.

Now, 246 years after our revolution started, it seems that nothing will ever unite us again. Facts are fungible, so the truth is as well. Most Americans are apathetic when it comes to politics because they like what they’ve got, and they’re unwilling to sacrifice.

This has led us to lose control of our politics and our courts. Control is now held by a minority, mostly by those at the top, supported by some of the people in the middle, and enabled by the apathy of most of the rest of us.

Worse, those in the minority are extremists. They have exploited the seams and imperfections in our system to impose a return to the social mores and politics of an earlier time on the rest of us. The best example of this is the string of far-Right decisions handed down recently by the Supreme (Extreme) Court. From Slate’s Mark Joseph Stern:

“Consider the issues that SCOTUS has resolved this term—the first full term with a 6–3 conservative supermajority. The constitutional right to abortion: gone. States’ ability to limit guns in public: gone. Tribal sovereignty against state intrusion: gone. Effective constraints around separation of church and state: gone. The bar on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone. Vast areas of the law, established over the course of decades, washed away by a court over a few months.”

In a single term, the Extreme Court’s reactionary majority has overturned two centuries of precedent for the American social order. They have made a mockery of judicial restraint. From Robert Hubbell:

“It is no longer “calling balls and strikes” but is…converting the game of baseball into the new sport of Calvinball, in which players make up the rules as they go along. To say the least, these changes are partisan and revolutionary.”

It’s clear that they want to go still further, and given today’s politics, there’s zero risk of the other branches of government overriding their decisions.

So, on this Saturday of Fourth of July weekend, let’s hit pause for a few days before taking on the mid-term roller coaster we’ll experience in the second half of the year. Let’s take these extra days to reflect on the Extreme Court’s rulings. Let’s contemplate how our founders were able to weave a message that united many factions against a common enemy.

It’s very clear that at this point, our common enemy is the partisan power of a partisan minority.

This weekend is our opportunity to set a battle plan against that common enemy, meaning a plan to maintain control of Congress for the next two years. We can then use that power to dilute the power of a reactionary Court that has taken control of many of the duties of the other branches of government.

Real power in this country no longer lies in the People. It resides at the Supreme Court.

To help you reflect on how we take back control, let’s listen to 1963’s “Give Me Your Tired” by Irving Berlin, performed by the Mormon Tabernacle Choir. Berlin set music to the words inscribed on the Statue of Liberty. It comes from his 1949 Broadway musical Miss Liberty:

The words are by Emma Lazarus (1849-87) from her 1883 poem The New Colossus:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me.
I lift my lamp beside the golden door!

More Rights May Be Flushed By The Supremes

The Daily Escape:

Denali from Byers Lake, AK – June 2022 photo by Todd Salat

In his concurring opinion to the decision in Dobbs v. Jackson Women’s Health Organization, that dismantled Roe, Justice Thomas basically begged Red states to send the Court more culture war cases that they could dismantle.

The Houston Chronicle reports that Texas GOP AG Ken Paxton is ready to do just that:

“Texas Attorney General Ken Paxton last week seemingly expressed support for the Supreme Court potentially overturning past rulings on cases involving the LGBTQ community following the downfall of Roe v. Wade on Friday.”

Paxton, in an interview, said he would support the Supreme Court revisiting the cases mentioned in Thomas’ concurring opinion. Here are the decisions Thomas would like a shot at overturning:

He questioned a number of earlier Court rulings, including Obergefell v. Hodges, which established the right of same-sex couples to marry, and Lawrence vs. Texas—a 2003 decision in which the court ruled against the state of Texas regarding its 1973 law criminalizing the act of sodomy.

Thomas also mentioned Griswold v. Connecticut, which established the right of married couples to use contraception without government interference:

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell….We have a duty to ‘correct the error’ regarding these established in those precedents.”

For those who don’t fully understand legal shorthand, the judicial theory Thomas is pursuing is that these issues should be in the hands of state legislatures, and not be decided by the courts.

Conservatives in other states have also expressed support for Thomas’s opinion, including Utah Senate President Stuart Adams, who said he would support the Supreme Court reconsidering same-sex marriage. Utah’s constitutional ban on same-sex unions still exists and could be reinstated if the high court were to overturn its earlier decision.

We shouldn’t forget that Obergefell was a 5-4 decision. Lawrence v. Texas was also a 5-4 decision. Since these cases were decided, the Court has moved three seats to the right. We should expect that both of these decisions will be overturned, assuming some state AG sends a case up to the Supremes.

After all, the Court’s Conservatives haven’t gotten more liberal on these issues in the last 10-15 years.

Some more history: Griswold v, Connecticut was decided 7-2, Loving v. Virginia was unanimous; and Brown v. Board of Education was unanimous. All of that said, while history shows that very few 5-4 decisions get overturned, in this time of Conservative Justice grievance, that’s not the way to bet. Even if those cases had been 6-3, 7-2 or 8-1, it wouldn’t matter to the current Justices on the Court.

Pundits are talking as if they would be shocked if the Court reverses Obergefell and Lawrence. That’s because they’re comforted that Thomas’s revolutionary concurrence wasn’t joined by other Justices. But all of them voted to end Roe, and Alito said:

“…abortion is not mentioned anywhere in the Constitution. Therefore, there is no right to an abortion.”

We should also remember that the Court used nearly word for word, the failed Robert Bork’s reasoning why there isn’t a Constitutional right to privacy in Griswold v. Connecticut.

If there’s no right to privacy because the Constitution does not explicitly state there is such a right, then according to the Court’s Conservative 6, all of the rest of our privacy rights are in play. That means nearly nothing in the Fourth Amendment may remain, because you have no right to privacy in your home or in your vehicle.

But if you bet that the Court’s Conservative majority will somehow find that the founders explicitly wanted corporations to have a right to privacy, you’ll earn some folding money.

The naked desire by the Furious Five to achieve their ideological goals as quickly as possible is most likely, uncontrollable. Chief Justice Roberts is being increasingly sidelined because he wants to (at least) try to hide their ideological agenda. But the Furious Five doesn’t have any interest in hiding what they’re doing.

No more calling “balls and strikes” as Roberts said during his 2005 Senate confirmation hearing.

In closing, the music world has reacted strongly to the Supreme Court ruling on abortion. NPR has a nice roundup of what artists are saying and doing in response. Check it out if you have time.

Wednesday Wake Up Call – June 29, 2022

The Daily Escape:

Asheville morning, June 28, 2022 – iPhone photo by Wrongo. The log house we’re renting this week is at 4,000’ above sea level.

Wake up calls by the Wrongologist rarely happen on Wednesdays, but since the Roberts Court dismantled the line between church and state in public education with Justice Gorsuch’s decision in Kennedy v Bremerton School District, on Monday, it seems right.

Voting 6-3, the Court declared that an Oregon public high school football coach’s post-game prayer sessions with students were Constitutional, whether the students wanted them or not. That made Monday part of a pretty good run for American theocracy:

“The decision came less than a week after the court ruled, by the same vote, that Maine could not exclude religious schools from a state tuition program.”

The line between church and state is being erased before our eyes. Gorsuch, cherry-picking the facts of the case, wrote that football coach Kennedy had sought only to offer a brief, silent and solitary prayer:

“Respect for religious expressions is indispensable to life in a free and diverse republic — whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head…”

Justice Sotomayor responded that the public nature of his prayers and his stature as a leader and role model meant that students felt forced to participate, whatever their religion and whether they wanted to or not. She gave a different account of the facts, taking account of a longer time period:

“Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer…”

In an unusual move, Sotomayor’s dissent included photographs showing Mr. Kennedy kneeling with players, which debunked Gorsuch’s selective use of facts.

Do you really think that this decision would have been the same if those prayers had been offered by a Muslim?

In the process of ruling for Mr. Kennedy, the majority overturned a major precedent on the First Amendment’s establishment clause, Lemon v. Kurtzman. That ruling was decided by an 8-0 vote under Republican Chief Justice Warren Burger. As an aside, John Dean (of Watergate fame) has said that during the Nixon administration, Burger threatened to resign from the Court if Nixon nominated a woman to it.

It came to be known as the Lemon test, which required courts to consider whether the challenged government practice had a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.

Sotomayor acknowledged that while the Lemon test had been frequently criticized by various members of the court:

“The court now goes much further…overruling Lemon entirely and in all contexts.”

So, by tossing out Lemon and saying that Coach Kennedy was not speaking for the school because it was an extra-curricular activity, the barrier between prayer and secular school has been permanently breached.

In today’s America, outside money will fund your culture wars grievance in the courts. The longer you can keep your case moving up through the courts, the better chance you have of running into a conservative Christian judge who will find a precedent for the White people’s Jesus in the Bill of Rights.

Teachers will now feel empowered to “invite” a group to pray with them. A few kids will jump in right away, while others will look around uncomfortably and gradually agree to join in, because the social opprobrium that comes with refusing is huge for kids. And since the person inviting you to pray is an authority figure: a teacher, coach, or principal, you really risk a lot by having them decide you aren’t: A.Good.Christian.

When given the choice between upholding traditional case law or creating de novo judicial principles, the Roberts Court is almost always going to favor the latter.

Wrongo isn’t a lawyer, but many lawyers are now pointing to the extraordinarily shoddy nature of the Court’s majority opinions, including all three of the precedent-shattering ones the Court has issued over the last week.

It’s time to wake up America! Why is it so hard for Christians in the United States to just practice their religion without involving the rest of us?

We’re getting very close to the establishment of a default Christian American religion. We know that there are many public school teachers who have been silent despite their sincere religious beliefs while at school. Now they will be actively pressured by their pastors to begin proselytizing while on the clock.

To help you wake up, let’s travel to the 2022 Glastonbury music festival, which always creates great live music. On June 25, Olivia Rodrigo and Lily Allen dedicated the latter’s song “Fuck You” repurposed to express anger at five of the six Conservative members of the court.

Rodrigo named the Justices one by one, while Allen raised alternating middle fingers to them:

These artists aren’t afraid of controversy. Millions of us now feel exactly the same.

Sunday Cartoon Blogging – June 26, 2022

(New columns will be light and variable for the next week, since Wrongo and Ms. Right are attending grandson Conor’s wedding in NC. Regular programming will resume on July 6.)

We’re not talking about the Supreme Court or the J6 news this morning. We’ll leave that for the cartoons below. Instead, let’s focus on an enlightening article from Curbed: “Hoboken Hasn’t Had a Traffic Death in Four Years. What’s It Doing Right?”:

“Hoboken feels downright roomy. Wander down the wide, busy sidewalks of Washington Street, the city’s main strip…and one thing becomes clear….A pedestrian doesn’t have to play the…perilous game of New York City crosswalk chicken, where you squint through the windows of a massive metal box to catch a glimpse of another speeding metal box whose driver doesn’t see you.”

“Few drivers park next to crosswalks in Hoboken because they can’t. Those spots are blocked off with bike racks or planters or storm drains or extra sidewalk space for pedestrians or vertical plastic pylons that deter all but the boldest delivery-truck drivers. Stand at a corner, and you can see what is coming toward you, and drivers can see you too, and you don’t have to step out into the road and risk your life to do it.”

This concept is called Vision Zero, a strategy that municipalities across the US and abroad have adopted that seeks to alter traffic and engage pedestrians to lessen the severity of accidents. In total, Hoboken has had three traffic fatalities since 2015.

As Hoboken’s streets get safer, the rest of America is getting less safe. Traffic fatalities in NYC were up 44% percent in the first quarter of 2022. Hoboken has empowered it’s pedestrians and every corner makes it clear they have the right of way. Hoboken’s streak of zero fatalities could end at any time, and eventually will, but that’s no reason for other cities and towns not to enable similar change. On to cartoons.

Somebody should remind the Conservative ideologue Justices that America is a multi-belief country:

It’s on the ballot in November:

Clarence rewrites the 2^nd Amendment:

Now concealed carry has multiple meanings:

The scales of justice get a Conservative makeover:

The J6 hearings have inspired criticism from Texas. The late Molly Ivins referred to Texas as the “national laboratory for bad government”:

Uvalde ,TX failures give new meaning to an old idea:

Saturday (Un) Soother, Supreme Court Edition – June 25, 2022

The Daily Escape:

North River, Marshfield, MA – June 2022 photo by Laurie France

Roe overturned. Gun laws on the books since the Taft administration overturned. Miranda weakened. The separation of church and state required by the First Amendment, no longer Constitutional.

Remember when Republicans railed against “unelected, activist judges”? They always meant judges appointed by Democrats. Here’s a quote from the National Review:

“The Left views the judicial branch as no different from the executive or legislative branches. To them, judges are supposed to ‘take sides,’ making sure that some political interests win and others lose.”

Or, this from a Baptist minister in 2014:

“Unelected liberal activist judge delivers Michigan to Big Faggotry.”

As always, Conservatives were projecting their actual views as the views of their opposition.

Today, we do have unelected activist judges running America, and they are Conservatives. We’re living in an ahistorical time: There are six justices who are practicing Catholics. Chief Justice John Roberts and Justices Amy Coney Barrett, Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh.

Five routinely vote as a bloc. There have only been 15 Catholic justices (out of 115 justices total) in the history of the Supreme Court. Forty percent of all Catholic justices are now sitting on the Court.

The Conservative majority on the Court has walked away from Stare Decisis, the doctrine that courts will adhere to precedent when making their decisions. Stare decisis means “to stand by things decided” in Latin.

Here’s how stare decisis has evaporated: On Thursday, the Court said that the individual right to bear arms is an inviolable fundamental right, meaning states cannot infringe the right to carry a gun. Clarence Thomas held that a NY statute enacted during the Taft administration was not part of the American tradition of regulating firearms.

The right to an abortion, in place for 50 years, was overturned and sent back to the states because it’s just not as fundamental as the God-given right to have a gun which you can use to shoot up elementary schools.

The NY gun law dates from 1913. The right to abortion was decided in 1973. But the radical judges tout the notion that the former violated a fundamental right, while the latter isn’t even a thing.

Also on Thursday, the Conservative justices voted 6-3 to block lawsuits against police who neglect to read the Miranda warning, (“You have the right to remain silent”). It also includes language about Constitutional protections against self-incrimination. From Alito’s opinion:

“A violation of Miranda does not necessarily constitute a violation of the Constitution, and therefore such a violation does not constitute ‘the deprivation of [a] right…secured by the Constitution,'”

Miranda was decided in 1966, but Alito now says it’s a “prophylactic rule”, meaning that Miranda warnings aren’t required by the Constitution, but are instead judicially-crafted rules designed to protect people’s core Fifth Amendment right against compelled self-incrimination. His signal to prosecutors is clear: Miranda is suspect, and we’re willing to entertain arguments that we should do away with it for good.

So the Conservative wing has knocked off three “settled law” items in one week, despite each – John Roberts, Clarence Thomas, Gorsuch, and Kavanaugh – all saying under oath some version of what Roberts said during his confirmation hearing:

“…[Roe] is settled as a precedent of the Court, entitled to respect under principles of stare decisis. It is settled.”

You should know that Alito and Barrett didn’t lie quite so egregiously about Roe during their hearings, although with hindsight, both were disingenuous. Obviously, a judge who lies under oath should be removed from office, but that won’t happen since “everyone” knew they were lying.

These Conservative unelected activist judges are placing ideology above precedent.

That elections have consequences was the key takeaway from the 2016 presidential election won by Trump. Democrats didn’t turn out for Hillary Clinton as much as they had turned out for Obama or that would turn out for Biden. Trump won because he got 78,000 more votes than Clinton in just three counties in Wisconsin, Pennsylvania, and Michigan, and thus got to appoint three reactionary justices.

Reactionary justices will issue reactionary rulings. And there are many more to come.

But it’s time to forget (if you can) about the Supreme Court gutting legal precedent for ideology. It’s time for your Saturday Soother.

Our long-term lawn guy has decided to close his business. It’s a combination of higher costs that couldn’t be passed along to customers and getting too old for outdoor physical labor. So we’re scrambling at the height of the season.

It will be a warm weekend in the Northeast, so grab a seat outdoors in a shady spot, put on your wireless headphones and listen to “As steals the morn” composed by Handel in 1740. “As Steals the Morn” is adapted from Shakespeare’s “The Tempest”. Amanda Forsythe and Thomas Cooley are the soloists, and their voices are beautiful:

Lyric:

As steals the morn upon the night,
And melts the shades away:
So Truth does Fancy’s charm dissolve,
And rising Reason puts to flight
The fumes that did the mind involve,
Restoring intellectual day.

Intellectual day is gone, my friends.

Sunday Cartoon Blogging – June 19, 2022

Today is Juneteenth. It’s now a federal holiday. Here in the most Conservative corner of Connecticut, the town hall will be closed on Monday, even though Juneteenth doesn’t become an official state holiday in Connecticut until next year.

Data from Google Trends about Connecticut’s interest in searching for the word “Juneteenth” shows the holiday barely registered as a search term before 2020. In 2019, Google Trends rated “Juneteenth” only a 9 out of 100 on the interest scale in Connecticut. During the same period in 2020, the value grew to 72. In 2021, it reached 100, meaning “peak popularity” for the term. On to cartoons.

It will be years before most people observe Juneteenth:

What do we care about?

Gas prices are cutting into Trump’s profits:

The J6 hearings provided insight into Trump’s amorality:

So, why do Republicans stay with him?

While Ginni’s giving Clarence some of her Kool-Aid every day:

Free Speech Is About To Get Tested

The Daily Escape:

Lupine bloom, Beeks Bight, Folsom Lake, CA – May 2022 photo by Kaptured in Kamera

We’re back from France where we had fantastic weather, wonderful food and wine, and a break from the loud drumbeat of dystopian American news. One issue that Wrongo followed from afar was the continuing assault on free speech by America’s Right Wing.

From Dan Pfeiffer:

“It seems like every week, Republicans propose, pass, or enact another outrageous, authoritarian, retrograde policy. Book bans, abortion bans, efforts to turn back the clock on marriage equality and contraception. Each is a fleeting political firestorm and then it’s on to the next….amidst this parade of retrograde lawmaking, there is a pattern…”

Despite claiming to be for small government, the Republicans want to dictate the terms of speech in America.

Consider Florida where Republican Gov. Ron DeSantis had passed legislation taking away the rights of Facebook, Twitter, and others to ban people from their platforms:

“The US Court of Appeals for the 11th Circuit on Monday ruled it is unconstitutional for Florida to bar social media companies from banning politicians, in a major victory for tech companies….the court rejected many of the legal arguments that conservative states have been using to justify laws governing the content moderation policies of major tech companies after years of accusations that the tech companies are biased against their political viewpoints.”

The 11^th Circuit court found that tech companies’ moderation decisions are protected by the First Amendment, which prohibits the government from regulating free speech. Interestingly, this comes after a different decision on the same issue by the Texas 5th Circuit Court of Appeals, that allowed a Texas law banning companies from discriminating against people based on their politics to remain in effect.

We now have completely opposite decisions by the 11^th Circuit and the 5^th Circuit courts on the issue of whether corporations must follow the Constitution’s First Amendment. This will invariably lead to the Supreme Court weighing in on whether private social media companies’ content moderation decisions are protected by the First Amendment. From the WaPo:

“Some lawmakers pushing for laws governing online content moderation and Supreme Court Justice Clarence Thomas have argued that tech companies should be regulated as “common carriers,” businesses like phone companies that are subject to government regulation because of the essential services they provide.”

But Florida’s court rejected those arguments, arguing states can’t force such restrictions on private company social media platforms. While the phone companies cannot stop callers or calls that may be objectionable, or even illegal, social media companies have different rights. From the Court’s ruling:

“Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier…”

The “Terms of Service” (TOS) agreements between social media platform companies and their users are a contract. When someone agrees to the TOS, they are saying that they will abide by it. Violating the TOS, whether by Trump, Musk, or some random ideologue, is a violation of contract law.

When the TOS is violated and the violator is suspended or barred from the platform, it doesn’t demonstrate bias, or a restriction in free speech. It demonstrates equal treatment. The TOS isn’t there only to restrain Conservatives, despite their protests of discrimination.

Florida passes a “don’t say gay” bill to police free speech by public educators in schools. They then pass the law to prevent private companies from policing speech on their platforms. This irony is lost on those who claim they’re against federal or state overreach unless it’s their Party that’s doing the overreaching.

The First Amendment says the government cannot punish you for speech (with some exceptions). The same Amendment also protects free association—meaning that it’s perfectly legal for private organizations to exercise their freedom of association even while excluding some speech.

Networks like Facebook and Twitter exert a lot of power over the flow of information. They are a primary method of news and expression for millions. That means they must be broadly inclusive and promote healthy discourse. Their business model includes wanting to attract as many users as possible. From Nicholas Grossmann: (emphasis by Wrongo)

“The big social networks—Facebook, LinkedIn, YouTube, Twitter—aim to be the online mainstream, appealing to a wide variety of users and the businesses that sell to them. That requires stopping behavior that isn’t illegal, but makes the platform inhospitable, such as hate speech.”

The large private social networks have a responsibility not to let the doctrine of free speech make them give a right of way to bad actors. There is zero reason to cede the concept of free speech to the trolls who are trying to drive people they hate off private social media platforms.

Now we wait to see what Alito, Thomas and the other Conservative Supremes have to say about the limits of Free Speech.

You shouldn’t be optimistic about the outcome.

Monday Wake Up Call – May 9, 2022

The Daily Escape:

Sunset, Lynden, WA – May 2022 photo by Randy Small Photography

A final thought about our radical Supreme Court: They should give up their black robes. White robes would be much more appropriate.

But for today, let’s talk about the Victory Day celebrations in Russia. This year marks the 77th anniversary of the end of World War II, and Russia observes it every year with military parades and patriotic messages.

Wrongo is publishing this before we learn exactly how Putin will mark the celebration. Certain pundits think that Putin will use the occasion to escalate his war in Ukraine.

UPI reported that in remarks Putin made to commemorate Victory Day, he blasted what he described as “Nazi filth” in Ukraine. He also sent congratulatory messages to the Russian-appointed figureheads of the Donetsk and Luhansk regions of eastern Ukraine, which together make up the Donbas region, for “fighting shoulder to shoulder for the liberation of their native land.”

That certainly doesn’t sound like he’s backing down on his currently stalemated war.

Others think that Putin is more likely to make the political choice to declare victory, or partial victory in the “special military operation”. They think that Putin will postpone any decision regarding mobilizing more troops, which could be politically difficult. Pat Lang, a former US intelligence officer, worries about Russia using a tactical nuclear weapon against the steel plant in Mariupol, a frightening possibility for the world.

Despite the speculation, let’s spend a few moments thinking about how the Ukraine war might end.

“Tell me how this ends” is what General Petraeus famously asked in 2003 at the outset of the Iraq War. It lasted until 2011, and then morphed into the war on ISIS, that lasted until 2017.

Since the Russian war hasn’t resulted in a clear victory, certain US and British officials are talking more openly about a “victory” in Ukraine, meaning that the West decisively degrades the Russian military’s capability. Also, there’s some talk about regime change in Moscow.

A more likely scenario is that we’ll see an extended standoff between Ukraine and Russia, without an agreed end to the war, but where neither side wishes to continue active combat. In this case, Western sanctions would continue. Russian forces would occupy all or most of the Donbass region and control a land corridor linking Crimea with the Donbass and Russia.

This outcome would have few rules of engagement, since most of the guardrails that would be part of a negotiated settlement wouldn’t exist. The US and Europe would face years of instability and the constant threat of a military miscalculation causing a spillover in Europe. A forever war in Ukraine also runs the risk of eroding support for Kyiv in the US. America isn’t emotionally able to endure another grinding military conflict, even with no troops on the ground.

Finally, there may be a negotiated settlement. But what is the compromise that all parties can live with?

Zelensky has indicated that Ukraine might agree to be a neutral country; but only on condition of stringent security guarantees, the terms of which both the US and Russia might find objectionable.

Ukraine has understandably ruled out territorial concessions, but Putin would almost certainly not agree to any settlement in which Russia were forced to leave the Donbass and Mariupol. And separatist groups there would be unhappy living under Kyiv’s rule after years of war. Also, it’s hard to see Putin compromising unless the US and Europe ease economic sanctions as part of a settlement. Removing sanctions without a Ukraine “victory” might be a difficult political pill for Biden in particular, to swallow.

We like to think that all wars end, and eventually, they do. Remember that may not happen quickly or completely. The surrender of the Confederate Army at Appomattox didn’t settle hostilities, or political and cultural tensions in the US. It didn’t resolve the related racial prejudices and political differences, which still linger today.

It shouldn’t surprise anyone that in the Ukraine war, there may not be a discrete moment marking the war’s end for many years. A protracted war would be a favorable outcome for Moscow. It would certainly be a terrible outcome for Ukraine, which is already devastated as a country.

Time to wake up, America! What’s our strategy in Ukraine? Are we even following a strategy in the Ukraine war? To help you wake up, listen to Jon Batiste perform McCartney’s “Blackbird” on The Late Show in 2016:

Note Batiste’s overture on piano which McCartney originally wrote for guitar, was inspired by Johann Sebastian Bach’s Bourrée in E minor, a well-known lute piece.

Sunday Cartoon Blogging – May 8, 2022

Senate Republican leader Mitch McConnell thinks the leak of the Supreme Court’s draft opinion overturning Roe is a “toxic spectacle”. Chief Justice John Roberts calls it a “betrayal.” And Justice Thomas of Ginni said:

“We can’t be an institution that can be bullied into giving you just the outcomes you want…We are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like…”

So suck it up American women! They’re sure that the leak is worse for America than their outrageous decision, and nothing you say will change any Republican minds. It is likely to be a long time before this (anticipated) decision is reversed. We will be a nation divided between states where reproductive freedom is guaranteed and states without it.

Major judicial errors in American history have been reversed before. The Constitutional amendment prohibiting alcohol was repealed in 14 years. The Supreme Court opinion upholding laws that criminalized gay sex was overturned after 17 years.

Women have many reasons for choosing abortion that have nothing to do with not wanting to be a parent. They may have medical needs; a fetus may carry genetic defects; the woman may be an underage child or a survivor of rape or incest. Adoption does not erase either the medical effects or the psychic scars that forcing a mother to term might inflict, and that may persist long after pregnancy is over.

And on this Mother’s Day, it is particularly ironic that they call themselves pro-life. Except, of course, for mothers. On to cartoons.

Who should be feeling violated?