US Constitutional Issues – Page 3

Can We Become A Representative Democracy Again?

The Daily Escape:

Toroweap Point, North Rim, Grand Canyon NP, AZ – August 2022 photo by Andrei Stoica

Our democracy is teetering. Minority states representing a fraction of the whole population of the country, have an outsized representation in the Electoral College and in the Senate. This has helped ignite an acute threat to American democracy that’s based in Red State America. The NYT’s David Leonhardt quotes Harvard’s Steven Levitsky:

“We are far and away the most countermajoritarian democracy in the world,”

One reason is that the more populous states over the past century have grown much larger than the small states. That means the bigger state residents now hold (relatively) less political power in the Senate and the Electoral College than they did in the 1900s.

This was something that the founders understood and agreed on. At the time, there was an alternative discussion about maintaining proportional representation in the House. In the first US Congress, (1789-1791), James Madison had proposed 12 potential Constitutional amendments. We all know that ten amendments were quickly ratified as the Bill of Rights. Another amendment was ratified in 1992 as the 27^th Amendment which prohibits salary increases for House and Senate members to take effect before the next election.

The only one of the 12 amendments passed by Congress that wasn’t ratified is the Congressional Apportionment Amendment (CAA). The CAA was designed to let the number of seats in the House grow to meet future population growth.

A majority of the (then) states ratified the CAA. But by the end of 1791, it was one state short of adoption. No other state has ratified this potential amendment since 1792. Here’s the text of the proposed CAA:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

The CAA lays out a mathematical formula for determining the number of seats in the House of Representatives. Initially, it would have required one representative for every 30,000 constituents, with that number eventually climbing to one representative for every 50,000 constituents.

But the amendment wasn’t added to the Constitution. Today, Congress controls the size of the House of Representatives. They had regularly increased the size of the House to account for population growth until 1911, when it fixed the number of voting House members at 435. Today, that’s about 761,000 Americans per House seat. Miles away from 50,000.

Delaware leads in the malapportionment with 990,000 people per representative, about 250,000 more than the average state. Rhode Island has the most democratic apportionment with 548,000 people per representative. Both are small, Blue states.

The small Red state Wyoming has 578k/representative. All of the big states are higher than the average: NY has 777k, and CA has 761k, while Florida has 770k and Texas has 768k.

This also impacts the distribution of Electoral College votes, which equal the apportionment of House seats. As a result, the Electoral College is also becoming less representative. David Leonhardt points out:

“Before 2000, only three candidates won the presidency while losing the popular vote (John Quincy Adams, Rutherford Hayes, and Benjamin Harrison), and each served only a single term.”

But two of the past four presidents (Trump and GW Bush in his first term) have become president despite losing the popular vote. Small states represent a fraction of the whole population of the country yet, absent something like the CAA, have an outsized representation in both the Senate and the Electoral College.

This was on purpose. But when the filibuster was added in the Senate’s rules, it changed everything. The filibuster has been part of the Senate in many forms, but in 1975, the Senate revised its cloture rule so that three-fifths of Senators (60 votes out of 100) could limit debate.

With the Senate roughly equally divided, each Party has about 50 votes it can count on, but it needs 60 to pass most legislation. This means that the small states have more power in the Senate than they had before.

Using the 2010 US Census as an example, the US population was 308.7 million. If the CAA was in effect, the number of representatives in the House would be more than 6,000. That’s surely unwieldy, but is there a number of House seats between 435 and 6000 that would be more representative?

Our form of proportional representation needs an overhaul. Some changes to consider:

Better proportional representation in the House (via the CAA?) to help make the Electoral College more representative than currently
A version of ranked choice voting for all state-wide races
Overturning Citizens United
Ending gerrymandering by using independent commissions to establish district lines

Since only a few hundred people currently control the democratic direction of our country, can these ever be addressed?

Sunday Cartoon Blogging – July 10, 2022

Continue reading Sunday Cartoon Blogging – July 10, 2022

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 5, 2022

Since 2019, more than 4,500 children have been shot to death in the US, according to the Gun Violence Archive. That’s about the same number as US military members killed during the 17 years of the Iraq War.

The supporters of permissive gun laws say that an armed society is self-regulating. That we should be able to keep weapons out of the hands of the wrong people. And when we can’t, a law-abiding gun owner will be nearby with their gun to stop the bad guy, wherever they appear.

But life isn’t such a simple binary. And because America has allowed the unlimited proliferation of weapons, we know with certainty that when the switch flips, people will die.

If that is the cost of freedom — if our liberty demands the occasional massacre, including of innocent children — then Republican politicians need to make that case to the rest of us. On to cartoons.

Mental health is only the tip of the iceberg:

Causes of kid trauma are in the eye of beholder:

The “well-regulated militia” isn’t regulated at all:

GOP wants teachers to defend themselves but not think for themselves:

So much misunderstanding:

Anatomy of a hunting gun:

Saturday Wake Up Call – June 4, 2022

The Daily Escape:

Curtis Island Lighthouse, Camden, ME – May 2022 photo by Daniel F. Dishner

Wrongo and Ms. Right are in Pennsylvania for the weekend. A highlight of this trip will be a visit to Longwood Gardens, after which we’ll return home and berate our gardens for their unworthiness. But since we’re in PA, let’s spend a few minutes on their Republican Senatorial primary.

The two leading Republican candidates are using the current debate on gun control as campaign fodder. Former hedge fund CEO David McCormick can be seen in this campaign video shooting a hunting rifle he says he used as a teenager. Next, he picks up a rifle he says he used at the US Military Academy and fires. Then he shoots a semiautomatic assault rifle similar to one he says he used in Iraq.

His competition in the Senate primary, television personality and surgeon Mehmet Oz, has a gun video too. He loads a shotgun and shoots. Then he shoots a semi-automatic pistol. He closes with an AR-15 style rifle. During the clip, he says:

“When people say I don’t support guns? They’re dead wrong,”

These guys have spent millions and months trying to showcase their conservative bona fides to PA’s GOP base voters while attempting to head off skepticism about their elite backgrounds on Wall Street and in Media, respectively. Part of their strategies involved commercials showing them shooting guns. Basically, they are saying to PA voters:

“Hey everyone, I can shoot a gun! Vote for me because I will do nothing to help you in Washington!”

Since we are already reeling from the ongoing and deadly mass shootings, should Republicans glorify the use and ownership of firearms that are weapons of war?

Let’s spend a minute on the current gun culture in America. Despite what Republican politicians say, guns are not a passive defensive tool like a bullet proof vest. They won’t stop a bullet coming at you. Guns are an active, offensive weapon. This active, offensive role of the “virtuous person with a gun” appeals to Republican men who say real men want to actively respond to threats to their property and their families.

The Republicans are pushing to get more guns in schools following the Uvalde shooting. This is the only kind of “do something” action that the Republicans can get behind. It follows the premise that people with guns in school will be able to put down active shooters before they kill kids.

This flies in the face of the facts. That didn’t happen in Uvalde, or in Parkland Memorial in Florida, or in many other places. In the majority of school shootings, the incident ends with unarmed people tackling the shooter. But Republicans will keep saying that armed guards are “deterrents,” even though this isn’t supported by facts. Candidates in both parties have used guns as a campaign prop, but lately, the images have become intentionally provocative in Republican advertising. Their messages convey a cultural and political solidarity more powerfully than most anything else, according to Republican strategists.

Wrongo knows it’s Saturday, our time to chill, but today, it’s time to wake up America! These ads create a dangerous impression that assault-style firearms are casual tools rather than dangerous weapons. They shouldn’t be used to grandstand at Starbucks on the weekend.

To help you wake up, spend a few minutes celebrating the life of Ronnie Hawkins, a rockabilly singer who helped create and launch The Band. He died this week. From Robbie Robertson:

“Ronnie Hawkins brought me down from Canada to the Mississippi delta when I was 16. He recorded two songs I’d written and thought I might be talented….Ron prided himself in always having top notch players in his group. Levon Helm was his drummer in the Hawks and I talked Ron into hiring Rick Danko on bass and vocals, Richard Manuel on piano and vocals and Garth Hudson on organ and sax. Along with Levon and me this became the magic combination.

Ronnie was the godfather. The one who made this all happen. After the Hawks left Ron and went out on our own, we joined up with Bob Dylan. Next the Hawks became “The Band” and the rest is history….All starting out with Ronnie Hawkins.”

There are tons of Ronnie Hawkins videos out there. Here’s one from the 1978 epic “The Last Waltz” a documentary film by Martin Scorsese, capturing The Band’s last performance. Ronnie Hawkins was invited back to participate in covering Bo Diddley’s tune “Who Do You Love?”:

Ronnie Hawkins has the greatest rock & roll quote ever:

“90% of all the money I’ve ever had in my life I spent on women, booze and drugs. The other 10% I just blew.”

Jan. 6 Committee To Hold Public Hearings

The Daily Escape:

Sunset, Seal Rock, OR – May 2022 photo by Mitch Schreiber

The House Select Committee investigating the Jan. 6 attack on the Capitol will hold six public hearings starting on June 9 and running for two weeks. TPM reports that some sessions will be aired during prime time, and others during the day. The televised hearings aim to give us a more complete story of what happened the day of the Capitol riot and what led up to it. They should dominate the national conversation right up to November’s midterm elections.

Six hearings. The Senate Watergate committee held 51 public hearings, over six months. And they began hearings within a year of the June 1972 arrests for the Watergate burglary. The Senate created the committee in February of that year; the hearings began in May. President Nixon resigned on Aug. 8, 1974.

Are these hearings similar to Watergate? Margret Sullivan in the WaPo doesn’t think so:

“The nation that came together to force a corrupt president from office and send many of his co-conspirator aides to prison is a nation that no longer exists.”

She goes on to say that the Select Committee’s June hearings won’t be all that visible:

“I’m willing to believe that the hearings will be dramatic. They might even change some people’s minds. But the amount of public attention they get will be minuscule compared with what happened when the folksy Sen. Sam Ervin (D-NC) presided over the Senate Watergate Committee.”

Martin Longman compares today with Watergate: (brackets by Wrongo)

“…more than two years elapsed between the discovery of the [Watergate] break-in and Nixon’s fall from grace. It has now been almost a year and a half since the failed coup attempt of January 6, 2021. We’re a bit behind schedule because the televised Watergate hearings began a mere 11 months after the initial arrests were made.”

Another difference was that in 1972, people went to the polls less than five months after the Watergate burglary was discovered. And Nixon was reelected in a landslide over George McGovern. This time around, it’s 18 months after the Jan. 6 event, and we still haven’t had national elections.

When people went back to the polls in November 1974 after Nixon had been run out of office, the Democrats netted four US Senate seats and 49 seats in the House. This time around, before they vote, people should have a very clear idea of what led up to Jan. 6, as well as what happened on the fateful day.

We need to remember that Watergate showed us that evidence of criminality wasn’t enough to turn the public decisively against a presidential contender. The criminality must be proven and demonstrated in a high-profile way in order to overcome the more general political considerations of the electorate.

Nixon’s lies were eventually exposed and the Republicans paid a hefty price. But only after the public Watergate hearings.

This means that there’s a lot of pressure on the Jan. 6 Committee. And their job is harder because most Americans no longer watch television. It’s likely that a small percentage of voters will watch the hearings, while a substantially higher percentage will see the most explosive parts in viral clips on the internet.

Finally, our political environment has changed for the worse in the past 48 years. While most Republicans defended Nixon at the start of the Watergate investigations, they accepted the legitimacy of the investigatory committee, and ultimately, turned against Nixon when the facts were clear.

This time, Republicans are attacking the committee as illegitimate and partisan. That means the evidence won’t be broadly accepted in their Party. In 1974, there came a time when Republicans would no longer defend Nixon.

If the current Select Committee does its job well, accusations that it is partisan will not be meaningful either to Independents, or to 10%-20% of Republicans who see the Jan. 6 coup attempt for what it was.

The stakes are high: The crimes of Jan. 6 are more serious than the Watergate crimes. An effort to overturn an election is more serious than an effort to cheat during an election. And most importantly, Trump, unlike Nixon, could run for president again (Nixon had already been elected twice).

While the Committee will eventually publish a report laying out their findings, they should immediately recommend that the DOJ pursue criminal cases and provide the DOJ with all relevant evidence.

As with Watergate, indictments should be doing the talking about the Jan. 6 crimes. In January, AG Merrick Garland said that the department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.” Remember that the DOJ has a policy of not bringing indictments prior to an election, so time is of the essence for America’s phantom AG.

It’s critical to act now. The American people need a clear picture of what happened and who is responsible.

That will give us a stark choice in the mid-term elections.

It’s Not Just The Guns, It’s The Ammo

The Daily Escape:

Antarctica – May, 2022 photo by Jason Row Photography

Wrongo shot the AR-15 at Fort Ord, CA while in the military in 1966. Back then, the US Army had its Combat Developments Experimentation Command, known as CDEC, there. Fort Ord is now closed, but its location on Monterey Bay in California, made it a beautiful place to spend a weekend, if not military training.

In the 1960s, Fort Ord was the home of the 4th Replacement Training Center, with upward of 50,000 soldiers preparing for their upcoming tour of Vietnam. As part of our training, we participated in the night fire tests of the AR-15. Those tests simulated the conditions that small squads faced in combat. The idea was to compare the performance of the AR-15 against the M-14, the incumbent weapon.

The Army adopted the lighter AR-15 in a model they called the M-16. James Fallows, writing in 1988 in The Atlantic, said this about the weapon:

“By the middle of 1967, when the M-16 had been in combat for about a year and a half, a sufficient number of soldiers had written to their parents about their unreliable equipment and a sufficient number of parents had sent those letters to their congressmen to attract the attention of the House Armed Services Committee, which formed an investigating subcommittee.”

The subcommittee examined the problems caused by the M-16, and Fallows’ article is worth reading to see how badly the Army procurement process failed the US soldier in Vietnam. The Army made several changes to the AR-15 as it became the M-16. All of them served to make the weapon unreliable in combat conditions and less useful as a weapon of war.

But Wrongo wants to focus on the M-16’s high velocity bullet. From Fallows:

“Nearly a century before American troops were ordered into Vietnam, weapons designers had made a discovery in the science of ‘wound ballistics.’ The discovery was that a small, fast-traveling bullet often did a great deal more damage than a larger round when fired into….a human body…”

On Sunday, 60 Minutes re-broadcast a story on the lethality of the AR-15. The focus was on how the gun’s high velocity rounds cause devastating and often lethal wounds that first responders and emergency rooms have great difficulty repairing.

The Intercept brings this back to the Uvalde shooting: (Brackets by Wrongo)

“Many circumstances of this week’s elementary school shooting in Uvalde, Texas, are incomprehensible….The [wound] damage was so severe that agonized parents had to give DNA samples to identify their children.”

Imagine. The request pointed to the obvious: Many of the children who had been killed were so grievously injured that it was impossible to identify their bodies. And that DNA identification process took hours.

Much of the damage was because in addition to the killer using the AR-15, a weapon of war, he also used hollow point bullets, one of the most physically destructive forms of ammunition. Hollow-point bullets open upon impact thereby causing more damage to their targets:

Source: Guns and Ammo

They can easily be purchased throughout the US, but the rest of the world thinks the use of expanding rounds on the battlefield is a war crime. The International Criminal Court bars their use, and they are prohibited by a declaration of the Hague Convention (which of course, the US has never ratified).

The US military has authorized hollow-point ammo. Civilian ammosexual proponents of the hollow-point ammo argue that the bullet reduces harm to nearby civilians, since it’s less likely to pass through its intended target or to ricochet. They also say that it’s useful in hunting big game, so the animal can be killed in one hit. Just like it works in 10 year-old grammar school students.

Saturday Soother – May 28, 2022

The Daily Escape:

Memorial Day, Arlington National Cemetery – May 2013 photo by William Coyle

Welcome to America’s Memorial Day weekend, when we remember those in the military who died in service to the country. But this year, we must also honor those who have died from mass murder by gun right here at home.

We need a three-day weekend. We need a break from the slowly unveiling and depressing news out about how shamefully the police of Uvalde, TX reacted to the killer. We also need a break from listening to the tepid responses by both political Parties.

The Republicans are saying the same as always: The country should not have stricter gun control. Why do Republicans refuse to act? Beyond the fact that many believe stricter gun control would not prevent such mass shootings, recent polling data reveal that there’s less political pressure on them than you might have thought.

Let’s examine the public mindset on the gun control debate as shown in Gallup’s polling conducted in October 2021 and January 2022. Both polls found a slight decrease in support for stricter gun laws compared with the prior year’s measures. Here are the top line results:

Last October, 52% of Americans indicated they wanted stricter gun control, while 46% either thought laws should be kept the same (35%) or made less strict (11%). The headline is that Americans’ support for stricter gun control fell five percentage points from October 2020 to the lowest since 2014.

That decline was driven by a 15-point plunge among independents, while Democrats’ desire for more restrictive gun laws ticked up six points to 91%. Republicans’ views were essentially unchanged, at 24%, (after dropping 14 points in 2020).

Of course, these numbers can be hard to understand when polls also indicate that north of 80% of Americans want universal background checks for guns, which Democrats have been pushing for in Congress and which most Republicans won’t go along with.

Why? There’s no sign that the polling on background checks holds up when its on the ballot. CNN’s report (March 2021) showed that ballot measures for background checks have appeared on ballots in California, Maine, Nevada, and Washington.

In all four, the pro-gun control side’s vote margin was worse than the Democrats’ baseline in the same state. In 2016, Clinton won California by 30 points, while gun control won by 27 points. In Maine, Clinton won by 3 points, while gun control lost by 4 points. In Nevada, Clinton won by 2 points, while gun control passed by a single point. Lastly, Washington passed its gun control law by a little less than 19 points in 2018, while Washington state’s House Democratic candidates won by a bigger margin in the same year.

The question is: Why would Republicans feel political pressure to support more gun control, when something that polls as well as universal background checks doesn’t draw as much support as the Democratic presidential candidate?

And here are a few more depressing thoughts. First, before the assault weapons ban went into effect in 1994, there were about 400,000 AR-15 style rifles in America. Today, there are 20 million.

Second, it’s doubtful that you were aware that there is an active group of school principals who have survived a school shooting. It’s called the Principal Recovery Network, a support group of sorts that mobilizes to help principals in the immediate aftermath of a school shooting. Frank DeAngelis, the former principal of Columbine High School says:

“It’s like that club that no one wants to belong to,”

They provide support for a principal who’s having his/her worst professional day. In every scenario, the goal is to help a principal in crisis. This is America: We put all this energy into dealing with the aftermath of a preventable trauma, and that now includes therapy for principals. We’re in this dark place because we will not open our eyes.

And for the 21st time since a mass shooting in Isla Vista, Calif. in 2014, the satirical site The Onion republished its saddest headline:

“No Way To Prevent This,” Says Only Nation Where This Regularly Happens

The best way to stop a bad guy from getting a gun is prevention.

Time for our long weekend Saturday Soother. The blog may be taking some time off, so don’t expect to see another column before Tuesday.

In view of the Memorial Day observance, and to remember those who died in Texas, listen to Samuel Barber’s “Adagio for Strings”, played in the original version by the Dover Quartet. Barber finished the arrangement in 1936. In January 1938, Barber sent an orchestrated version of the Adagio for Strings to Arturo Toscanini. The conductor returned the score without comment, which annoyed Barber.

Toscanini later sent word that he was planning to perform the piece and had returned it simply because he had already memorized it! It was performed for the first time by Toscanini in November, 1938. Here, for the third time on the blog, is the quartet version of “Adagio for Strings”:

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.

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?