First Amendment Freedoms – The Wrongologist

The Three University Presidents Messed Up. Or Did They?

The Daily Escape:

Wild surf, Shore Acres SP, OR – December 2020 photo by Alan Nyri Photography

Instead of a soothing Saturday, Wrongo has decided to wade into the hot steaming pile that is the controversy over whether the presidents of various prestige universities are sufficiently anti-genocide. What they said at the House hearings has raised a chorus of voices who think that the leadership at Harvard, MIT and UPenn just aren’t anti-genocide enough.

From Bloomberg’s Noah Feldman:

“The lowlight of the House hearings on campus antisemitism…came when Congresswoman Elise Stefanik (R-NY) asked the presidents of Harvard, MIT, and the University of Pennsylvania whether it would be bullying and harassment if someone on campus called for a genocide of Jews. The presidents’ answers — that it depended on context — landed about as badly as it could have. Stefanik, a Trumpist Republican election denier, browbeat them and called it “unacceptable.”

Feldman is a law professor at Harvard. He went on to say:

“The core idea of First Amendment freedom is that the expression of ideas should not be punished because doing so would make it harder, not easier, to find the truth. That freedom extends to the most hateful ideas imaginable, including advocacy of racism, antisemitism, and yes, genocide.”

Wrongo isn’t a lawyer and this isn’t a court or a classroom, so what follows is his take on this matter.

Can speech be constrained? In 1969, the Supreme Court protected a Ku Klux Klan member’s speech and created the “imminent danger” test to determine on what grounds speech can be limited, saying in Brandenburg v. Ohio that:

“The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”

Speech promoting violation of the law may only be restricted when it poses an imminent danger of unlawful action, where the speaker has the intention to incite such action, and there is the likelihood that this will be the consequence of that speech.

In 2017, the Court affirmed this in a unanimous decision on Matal v. Tam. The issue was about government prohibiting the registration of trademarks that are “racially disparaging”. Effectively, the Supreme Court unanimously reaffirmed that there is no “hate speech” exception to the First Amendment. Such speech can be prohibited when the very utterances inflict injury or tend to incite an immediate breach of the peace.

There is plenty of case law on the First Amendment out there to read or about hate speech if you prefer to do your own research. From Wikipedia:

“In the 1980s and 1990s, more than 350…universities adopted “speech codes” regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment.”

So, while University presidents may sound lawyer-like when asked if “calling for genocide of Jews” should be prohibited, think about the long history of case law that says there are few limits on hate speech that do not result in action intended to produce harm. Also think about the losing streak these universities have been on when they have tried to restrict speech in the past.

As it happens, the three presidents were accurately describing their universities’ rules, which do depend on context. Yascha Mounk in The Atlantic had this to say:

“In a narrow, technical sense, the three presidents were correct to state that their current policies would probably not penalize offensive political speech. In a more substantive sense, universities should defend a very broad definition of academic freedom, one that shields students and faculty members from punishment for expressing a political opinion, no matter how abhorrent.”

Mounk goes on to say that the university presidents were disingenuous when they claimed that their response to anti-Semitism on campus was hamstrung by a commitment to free speech. Recent history at all three institutions shows that their rules about free speech are unevenly applied. So the problem with their answers wasn’t about making a judgement call about calls for genocide.

We’re stepping into muddy waters here. When students say: “From the river to the sea. Palestine will soon be free” they’re using a political slogan that on its face is aspirational. While some may hear that and say it implies genocide of Jews, it should be protected speech. It’s stupid and ignorant, but 100% protected. Widening out our view, blaming all Jews for Netanyahu’s excesses or blaming all Palestinians for the atrocities of Hamas is wrong but it’s still protected speech.

People like Stefanik are too high on their own agenda to appreciate the distinction.

Still, it’s true that many (most? all?) universities have become hypocritical. There are plenty of examples of professors being expelled, or outside speakers being cancelled because the administration doesn’t care for the viewpoints being expressed.

The question of exactly when political/hate speech becomes sufficiently threatening and specific toward a given individual or groups so as to constitute legally (and by extension administratively) a violation of a university’s code of conduct is, not surprisingly, a massive gray area. On Thursday a man saying “Free Palestine” fired shots at a synagogue near Albany NY. Thankfully, nobody was harmed. He wasn’t on campus and he did back his words with a serious threat, so he was arrested.

The university presidents failed to be clear. The US case law and the school’s codes of conduct are sufficiently difficult to adjudicate on a hypothetical basis. These three presidents should learn that first, the US Congress isn’t the academy. Second, they should admit they are fuzzy thinkers about free speech at their institutions. Third, they should develop better codes of conduct.

Let’s give the last word to Feldman:

“Free-speech nuance is something to be proud of, not something to condemn.”

A final thought. Stefanik’s gotcha game with yes/no answers to complex questions shouldn’t be the way the game is played, but for now it is. Many Republicans think that colleges and universities deserve specific blame for the liberal political views of young Americans. It has become an article of faith on the right despite little supporting evidence that colleges are turning young people into liberals. Stefanik is a willing tool of this viewpoint.

On to our Saturday Soother. We’ve had snow overnight for the past two days on the Fields of Wrong. Still, it’s expected to be around 60° on Sunday. Given our uneven weather, the arborist isn’t coming here until the middle of February.

Let’s get comfortable in a big chair near a window. Now, try to let go of the arguments about the “people we hate and I want to talk about them” and empty our minds of complicated ideas, even if they are foundational to our democratic experiment.

Let’s listen to the Academy of St. Martin-in-the-Fields Chamber Ensemble perform Maurice Ravel’s “Introduction and Allegro for harp, flute, clarinet and string quartet”. He composed this work in 1905 and it was first performed in 1907.

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.

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 – April 26, 2021

The Daily Escape:

The Wonder Gardens, Bonita Springs, FL – April 2021 photo by Merrill Dodd

Alex Pareene in the New Republic writes about how Republicans have endorsed a terrorist tactic against protesters. He means new legislation in several states that shield drivers from civil liability if they injure or kill protesters. Florida is an example:

“Earlier this week, Florida Republicans enacted a law they claimed would prevent riots in the state. Its real purpose, of course, was to discourage protesting and punish demonstrators. One of the bill’s provisions has received a fair amount of national attention, as it seems to give Floridians permission to attack protesters with their cars.”

The law increases penalties for protesters who block roadways or deface public monuments. It creates a new crime, “mob intimidation.” That clause makes it illegal for a group of two or more people to use force or to threaten force. But what constitutes a threat of force? And the law requires that anyone arrested at a protest be denied bail until their first court appearance, making for overnight jail stays.

It also makes local city and town officials in Florida liable for lawsuits from injured parties if they are found to have not done enough to respond to control violent protests. And it reacts to the mythical “defund the police” movement by allowing an appeal to the governor of any decision by local officials to reduce law enforcement funding.

Pareene asks: (brackets by Wrongo)

“What problem does it [the new law] solve? As the Florida American Civil Liberties Union pointed out, very few recent protests in the state involved violence or even vandalism, and police and prosecutors were already well equipped…to handle whatever rioting might occur. If demonstrators blocking roads and snarling up traffic were a serious problem in Florida in need of a legislative remedy, surely thoughtful legislators could come up with a more effective or ethical response….”

Five states besides Florida have introduced similar bills this year, granting some form of immunity to people running into demonstrators. Iowa’s measure was passed by the state’s House and awaits Senate approval. Oklahoma Governor Kevin Stitt just signed another version into law in his state. Oklahoma’s shields attacking drivers from criminal but not civil liability.

Corporations, Not Congress, Do The Right Thing

The Daily Escape:

Winter, Stowe VT – photo by John H. Knox

On January 6 2021 America’s professional managerial class felt fear for the first time since WWII. These corporate titans saw our democracy stumble. And they didn’t like it, since they have a vested interest in the US continuing to be a stable democracy. They rely on the rule of law to allow them to operate in a predictable and rational environment. That environment was jeopardized last week.

For the moment, the USA is effectively without a leader. We’ve heard no public briefings from the White House, FBI, Department of Homeland Security, or the Justice Department about what happened on January 6, or what has happened since. We’ve heard only Trump say he isn’t responsible for the attack on the Capitol.

The acting Secretary of the Department of Homeland Security resigned. The Defense Department is being run by a Trump lackey. Outgoing Secretary of State Pompeo is trying to blow up the entire Biden administration by recognizing the independence of Taiwan.

America is crying out for leadership, and a broad coalition of CEOs stepped up to silence Trump. These CEOs acted faster and more effectively as a check on the president’s power than Congress could, or would. A new overt corporatist political force is emerging, and Facebook (excuse the pun) is its face. Facebook COO Sheryl Sandberg said:

“You cannot call for violence…the risk to our democracy was too big. We felt that we had to take the unprecedented step of an indefinite ban, and I’m glad that we did.”

Twitter followed suit with a permanent Trump ban.

For years, many people, including Trump, have used these platforms to undermine democracy. Since before the November election, they have used these platforms to attempt to nullify the results of the November election, and install Donald Trump as an illegitimate president. From Jonathan Last:

“Had this attempt been successful, it would have been the end of American democracy and, consequently, the failure of the rule of law. This would have had dire consequences for Twitter, Facebook, and every company in America because it would have meant that they were no longer subject to the predictable process of the rule of law, but rather…the pleasure of a strongman.”

Despite the whining on the Right, there is no right of free speech on private platforms like Twitter, Facebook and Google. Those companies built, and now operate their platforms, and they are available to most for free. That doesn’t imply that individuals or corporations must be free to say anything they want while using them.

The people who run Twitter and Facebook are just as qualified to make judgments about what’s useful for a healthy society as any Right Wing politician. Anyone who says that these platform companies must simply let anyone join their platforms, and then allow them to do whatever they want, are simply wrong.

We’ve learned last week that when a sitting president threatens the political stability of the country by inciting an insurrectionist mob that storms the Capitol, corporate America will do everything in its power to restrain him.

This week, the tech giants including Facebook, Google, Amazon and Twitter worked in concert to decapitate Trump and the extreme Right.

Other corporations pulled political funding from all legislators who supported overturning the result of November’s free and fair election. Several major companies on Monday said they planned to cut off political donations to the 147 members of Congress who last week voted against certifying the results of the presidential election. Other major corporations said they are suspending all contributions from their political action committees. This is a sign of corporate America’s growing unease with the election falsehoods promoted by Trump, along with the violent attacks he encouraged.

All of this happened before the House could even schedule a vote on impeachment.

It also highlights the inaction by the Senate. For the first time in the last ten presidential transitions, the GOP-led Senate is not confirming Biden cabinet members prior to the inauguration.

There will be no head of the CIA, no Homeland Security secretary, Attorney General, Secretary of State, or Secretary of Health and Human Services when Biden takes office. This, despite being hip deep in a domestic terror attack during a pandemic that’s killed nearly 400,000 Americans.

And everyone should have a problem with the fact that the New England Patriots’ head coach Bill Belichick, by refusing Trump’s offer of a Medal of Freedom, is showing more moral leadership than any Republican Representative or Senator.

Between the demonstrations we saw last summer, through the Georgia Senate runoff election, political activism is on the rise across America. That now includes major corporations.

There will be no going back.

The Demonstrations Get Complicated

The Daily Escape:

Summit Lake with view of Mt. Rainier WA – 2020 photo by monzar

“I feel like a survivor from an age that people no longer understand.” — Olivia de Havilland

So true for Wrongo. The video below shows one of Trump’s paramilitaries pepper spraying a Vietnam Vet. Not for anything he’s doing, or for anything he is saying, but simply because they can. The video was shot by Andrew Kimmel, who is at the Portland protests every night. Wrongo urges you to follow him:

pic.twitter.com/WDwOKem2he

The vet’s name is Mark Hastie. He was a medic in Vietnam. He’s pleading with federal agents to heed the warnings of history, and respect the oath they took to defend the people of their country. Hastie says that he has mental scars from his time in Vietnam, and that these paramilitaries will have them too, if they continue their authoritarian ways.

It’s worth noting that in Portland most nights after midnight, a few protesters escalate the confrontation which, to that point have been largely peaceful. Bottles, cans and fireworks are thrown, some try to rush the temporary fencing installed around the courthouse. That’s when the paramilitaries move in and harm the protesters.

The AP had reporters with the paramilitaries last night. Here’s some of what they saw from inside the courthouse: (brackets by Wrongo)

“[at around 11pm]…someone fired a commercial-grade firework inside the fence. Next came a flare and then protesters began using an angle grinder to eat away at the [temporary courthouse] fence. A barrage of items came whizzing into the courthouse: rocks, cans of beans, water bottles, potatoes and rubber bouncy balls….

Within minutes, the federal agents at the fence perimeter fired the first tear gas of the night.”

Ultimately, by dawn the next day, the paramilitaries had cleared the protesters away from the courthouse, and both sides retreated to lick their wounds.

Yesterday, the WaPo had an opinion piece by E.D. Mondainé, president of the Portland branch of the NAACP, saying that the message of the protests about the murder of George Floyd and the response by the Black Lives Matter movement is getting lost in the ongoing confrontations with Trump’s paramilitaries: (emphasis by Wrongo)

“….we need to remember: What is happening in Portland is the fuse of a great, racist backlash that the Trump administration is baiting us to light…..If we engage them now, we do so on their terms, where they have created the conditions for a war without rules, without accountability and without the protection of our Constitution.”

Trump’s plan of escalation seems to be working. The original protesters wanted less police violence and more accountability. But the protest now is against anonymous armed agents sent to suppress protest.

Another thing lost in the Portland protests is that Trump officials admit off the record that they are sending federal troops into cities in order to create “viral content”:

“One of the officials said the White House had long wanted to amplify strife in cities, encouraging DHS officials to talk about arrests of violent criminals in sanctuary cities and repeatedly urging ICE to disclose more details of raids than some in the agency were comfortable doing. “It was about getting viral online content,” one of the officials said.”

This takes us back to the Spanish-American War in 1898. Before the destruction of the battleship Maine in Havana harbor, the New York Journal sent Frederic Remington, the distinguished artist, to Cuba. He was instructed to remain there until the war began. Remington sent this to William Randolph Hearst:

“W.R. Hearst, New York Journal, NY:
Everything is quiet. There is no trouble here. There will be no war. I wish to return. Remington.”

This was the reply:

“REMINGTON, HAVANA:
Please remain. You furnish the pictures, and I’ll furnish the war. W.R. HEARST.”

“You furnish the pictures, and I’ll furnish the war”. You doubt it? Look at this:

Trump is now apparently sending more Federales to Portland. So what’s the endgame? Having set the fire, Trump will now try to make it a raging inferno.

And, protests are growing across America:

A courthouse and police station were damaged in Oakland, California.
Multiple vehicles were damaged from arson in Richmond, Virginia, but were apparently caused by white supremacists pretending to be Black Lives Matter.
Federal buildings in Atlanta, Georgia, were damaged.
There were shootings in Aurora, Colorado; Louisville, Kentucky; and Austin, Texas, killing one protester.

We no longer know who is demonstrating, there are too many “false flag” operators everywhere in America, as shown by who was behind the arson in Richmond, VA.

What will bring us out of our current free fall?

If Biden wins in November, he’ll inherit an America with 15%+ unemployment, tens of millions more homeless people than we have currently. Hunger will be widespread, and COVID will still be working its way through our population.

Monday Wake Up Call, Portland Edition — July 27, 2020

The Daily Escape:

Paradise Pass with Crested Butte in the distance, CO – 2020 photo by glacticspark

The second biggest story of the summer is the widespread support of the protesters, those people of all races and ages, who took to the streets to say something about racism in America. Portland is and seems likely to remain the epicenter of the Trump administration’s law and order response.

America’s First Amendment rights are under attack in Portland by Trump’s paramilitaries every day. How can that be? Few have heard of US Code 1357. It allows immigration officers to operate within 100 miles of any external US border. Hence Trump could call out border troops to DC, Portland, or Chicago.

USC 1357 gives DHS jurisdiction over about two-thirds of the US population. They can enter any building that isn’t a dwelling within 25 miles of the border without a warrant.

The regulation was adopted by the US Department of Justice in 1953. At the time, there were fewer than 1,100 Border Patrol agents nationwide; today, there are over 21,000.

These problems are compounded by a lack of personnel oversight by Customs and Border Protection (CBP) and the DHS. The CBP consistently fails to hold its agents accountable for abuses.

Portland has protests on most days of the year. It’s part of the DNA of the city. Now, it’s looking like Trump’s paramilitaries are trying to foment violence and create a backlash among the protesters. The NYT reports on how these troops were the instigators of recent violence: (emphasis by Wrongo)

“After flooding the streets around the federal courthouse in Portland with tear gas during Friday’s early morning hours, dozens of federal officers in camouflage and tactical gear stood in formation around the front of the building.

Then…the officers started advancing….they continued to fire flash grenades and welt-inducing marble-size balls filled with caustic chemicals. They moved down Main Street and continued up the hill, where one of the agents announced over a loudspeaker: “This is an unlawful assembly.”

By the time the security forces halted their advance, the federal courthouse they had been sent to protect was out of sight — two blocks behind them.”

What’s the end game for Trump in Portland? His paramilitaries aren’t going to murder groups of protesters in cold blood, so what are they going to do? Have nightly tear gassing until the November election?

Trump’s paramilitaries are saying to Portland: “We wouldn’t have to violate your Constitutional rights if you didn’t insist on exercising them.”

There is libertarian support for ending the Trump paramilitary presence in Portland. Libertarians acknowledge that there is no police power in the Constitution. Policing is left to the states. To the extent the President can send federal officers into Portland or other cities, it should be limited to protecting federal property, not moving into crowds that are two blocks away.

The libertarian argument would say that the people of Portland and other cities have the right to decide who they want to elect to City Hall and how much funding they want to provide for their police. The federal government should only be brought in to defend federal property if the local police are unwilling or unable to do so.

Ironically, during the Obama administration, the GOP thought that the “arming up” of America’s internal security forces like the CPB was a risk to THEM. Now, when it’s impacting Democratic-voting cities, they’re all for it.

Trump’s election chances seem to depend on whether he’s Nixon reborn in 2020. Nixon ran on law and order and against violent demonstrations, largely by students who were against the Vietnam War. Protests never spread as broadly as this in the 1960s. To a great degree, the Vietnam protests were by white college age youth. That isn’t true of today’s protesters.

Trump’s law and order gambit is that Antifa Marxists will take over our cities and then, our suburbs. He’s clinging to the idea that there is an equivalent of the “silent majority” of 1968 still out there to elect him.

But Vanity Fair reported some new polling on the response to Trump’s anti-BLM efforts. If those polls are correct, the silent majority of 2020 is firmly on the side of Biden when it comes to issues of race and justice. Nixon’s ghost seems to have left the building.

Time to wake up America! People in Portland are not afraid of the protesters. They know that their safety isn’t in question. There’s no doubt this is a protest against the government, not their fellow citizens.

To help you wake up listen to Peter Green, guitarist of Fleetwood Mac who died this week, play “Albatross” from 1969’s “The Pious Bird of Good Omen”:

This reminds Wrongo of Santo and Johnny’s “Sleepwalk” from 1959.

Those who read the Wrongologist in email can view the video here.

Sunday Cartoon Blogging – July 26, 2020

Possibly lost in the “Terrorist Antifa Moms” news out of Portland last week was the thought that we continually say things like this:

Another new low for Trump.
How dare he?
Trump flaunts the Constitution.

In the past, other presidents have used governmental authority for political ends, but no other president has used a combination of the FBI/DHS/ATF and private mercenaries to literally beat down our First Amendment rights. Who’s stepping forward to stop him?

Without a principled Congress, nothing will stop him. The Republican Party steadfastly remains unshocked by his behavior. The Democratic Party can hold all the hearings it wants. It will never make a dent in Trump’s behavior. The current national dumpster fire is 100% owned by the GOP.

From Trump’s perspective, he’s doing exactly what he’s certain that he can get away with as President. He’s moved the goalposts, because our system wasn’t designed to hold back a President without principles. On to cartoons.

Protection of your Constitutional rights is now in the hands of Portland’s mothers:

Here’s the true cognitive test for Americans:

Who’s behind these secret police masks?

Do Americans understand how close we are to Trump declaring Martial Law?

Can Trump win on this debate question?

Roberts Returns to the Dark Side

The Daily Escape:

Lake Blanche, Upper Cottonwood Canyon, UT – 2020 Galaxy S10 photo by criked

On Tuesday, the Supremes issued another opinion. This one narrows the First Amendment’s separation of church and state. The case, Espinoza v. Montana Department of Revenue, was a 5-4 decision, with the five conservative justices in the majority, and the four liberal justices dissenting.

From Slate: (emphasis by Wrongo)

“The Montana Constitution contains a “no-aid” provision that bars the state from providing public funds to religious institutions, as do 37 other state constitutions. To work around this rule, the Legislature granted tax credits to residents who donate money to Big Sky Scholarships, which pays for students to attend private schools, both secular and sectarian. (Montana’s demographics ensure that the only sectarian schools that participate are Christian.) In other words, residents get money from the state when they help children obtain a private education, including religious indoctrination. In 2018, the Montana Supreme Court found that this program violated the state constitution’s no-aid clause. But instead of excluding sectarian schools, the court struck down the whole scheme for all private education.”

Chief Justice John Roberts’s opinion revived Montana’s tax credit scheme when he announced a new Constitutional principle: Once a state funds private education, “it cannot disqualify some private schools solely because they are religious.”

Twenty-nine states, the District of Columbia, and Puerto Rico all provide tax credits or vouchers to families that send their children to private schools. Under Espinoza, they must now extend these programs to private religious schools. More from Slate:

“This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law ‘respecting an establishment of religion’.”

In essence, Roberts is now saying that the Establishment Clause supersedes the Free Exercise Clause.

Some background: In Zelman v. Simmons-Harris, the Supreme Court ruled that, under the Establishment Clause, states were allowed to fund private schools through vouchers or tax credits. Now the court has declared that, under the Free Exercise clause, most states are compelled to fund private religious schools.

Over the past 18 years, the Court’s conservative majority has revolutionized church-state law.

How did the court do this? The barrier between church and state took a hit when five justices permitted state financing of sectarian schools in Zelman. It nearly collapsed when the court expanded religious institutions’ access to taxpayer money in 2017’s Trinity Lutheran v. Comer, which held that states cannot deny public benefits to religious institutions simply because they are religious.

The court claimed that their new rule was actually hidden in the meaning of the First Amendment’s Free Exercise clause—even though, as Justice Sotomayor pointed out at the time, separating church and state does not limit anyone’s ability to exercise their religion.

More from Slate. Roberts, from the Espinoza opinion: (italics are in the quote)

“A state violates free exercise…when it “discriminate[s] against schools” based on “the religious character of the school.” The government, Roberts explained, has no compelling interest in preserving the separation of church and state beyond what the First Amendment requires. Nor does the government have any interest in protecting taxpayers’ right not to fund religious exercise that infringes upon their own beliefs.”

Said the Chief Justice:

“We do not see how the no-aid provision promotes religious freedom…”

In theory, states could abolish public funding of private schools entirely to avoid funding religious schools, but that’s what the Montana Supreme Court did. And Roberts just condemned that decision as “discrimination against religious schools”, because Montana had originally funded all private schools.

Roberts may be a master at minimizing losses (hits to the credibility or reputation of SCOTUS), while maximizing returns for his masters (conservative victories). In most of the cases where he has sided with the liberals, his opinion has basically boiled down to “lie better the next time.”

That was true in the abortion and DACA cases this term, and in the Census case last term.

So, based on this decision, religious entities (of the right sort) are not only eligible for government funding, they are entitled to it. That, and more equipment for the military.

This is what the America conservatives want. What could go wrong?

The state requires children to go to school. It also provides a school system for those children in order to meet that requirement. If you choose to send yours to a private, accredited/licensed school instead, that cost should be borne by you, not by the taxpayers.

Public funding for religious schools, along with tax-free status for churches, gives too much political power to religions.

That’s exactly why separation of Church and State is so crucial.

Saturday Soother – June 9, 2018

The Daily Escape:

Rakotz Bridge, Kromlauer Park, Germany via @archpics

With the press busy mourning the deaths of Kate Spade and Anthony Bourdain, you probably missed a couple of news stories about press freedom.

First, on Thursday night, the DOJ unsealed an indictment of James Wolfe, the long-time Director of Security for the Senate Intelligence Committee. Wolfe, a former Army intelligence analyst, had worked for the committee in a nonpartisan capacity for nearly 30 years. He is accused of one count of false statements to the FBI. The indictment alleges that he lied about his conversation with four journalists, Ali Watkins of the NYT, and three others.

The NYT revealed that Watkins, who had a three-plus year relationship with Wolfe, has had years of her communications subpoenaed. The DOJ obtained her subscriber information, and additional information from her phone.

The subscriber information that can be obtained by the DOJ is invasive. It includes your name, financial and other contact information, and IP and device addresses that allow them to map out all the communications a person uses.

It gives the government all of a journalist’s sources.

And the DOJ also sought and received Ali Watkins’ her email from when she was an undergraduate at Temple. She graduated in 2014. She broke her first national security story as a senior in college, so perhaps her school emails are relevant to the government’s investigation.

But this breach of the reporter/source privilege needs to explained. The government must delineate the boundary of what is, and isn’t acceptable in terms of vacuuming up a reporter’s source information.

It is important that counterintelligence sources and information be kept secret. James Wolfe’s motives are unclear, since he shared information with other reporters that he wasn’t having an affair with.

As of now, we don’t know if there was actual damage to an investigation.

The second item is the report, originally in April, that the Department of Homeland Security (DHS) intends to list and track 290,000 news outlets, journalists, bloggers, and influencers following select news stories. Their intent is to share those data with federal, state, local and private partners.

Naturally, there was pushback by news organizations, enough for the DHS’s Tyler Houlton to say:

Sure. Only a crank could possibly have an issue with one of the least transparent government agencies, the one with an Orwellian name, tracking and cataloging journalists. This amounts to mass monitoring of the press by the state.

So, two attacks on press freedom by the Trumpets, one by DOJ, and the other by DHS.

Remember, the government now has virtually unlimited processing power, bandwidth, and storage, and with that: Anything that can be monitored will be monitored.

This wasn’t feasible in the past, but now it is. We are at the point when privacy, as we have understood it in America, is over. For most of our country’s first 200 years, the government accepted that reporters would never reveal their sources, and by and large, no prosecutor and no judge would force them to try. It was a sacred protection guaranteed by the First Amendment.

Well, that’s changed. And it isn’t just the hard right bunch currently running the country. They are building on the efforts by Obama’s DOJ to seize journalists’ emails using the Espionage Act, to increase surveillance pressure on journalists and prosecute leakers of classified secrets.

It will take another court case similar to the Pentagon Papers to stem this undermining of press freedom. Good luck with that, given the current and likely future makeup of the Supreme Court.

Trump must respect and obey the First Amendment, in its entirety. The First Amendment is the core of our free society. Most whistle blowers are heroes.

This is how freedom is lost a little at a time, until one day we’ll wake up and find out that we’re no longer free. Technology has made Big Brother possible, but it is Congress that has made it legal.

Only pushback from freedom loving citizens will prevent it.

Wow! We really need a Saturday soothing. So, get off the couch, and brew up a cup of Kiniyota Espresso by Madison, Wisconsin’s JBC Coffee Roasters. It is produced entirely of the heirloom Bourbon variety of Arabica. Then, taste its rich notes of stone fruit and dark chocolate ($17.60/12oz). Now, sit outside, hopefully in a shady spot, and listen to the Viola Concerto in G major by Georg Philipp Telemann. It was probably composed in 1715. It was the first concerto for Viola. Here, it is played by Midwest Young Artists Conservatory:

Someone said that the viola is like the cream in an Oreo cookie; sweet and creamy, while holding the top and the bottom together.

Those who read the Wrongologist in email can view the video here.

The Wrongologist

Geopolitics, Power and Political Economy

Tag: First Amendment Freedoms

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Monday Wake Up Call, Portland Edition — July 27, 2020

Sunday Cartoon Blogging – July 26, 2020

Roberts Returns to the Dark Side

Saturday Soother – June 9, 2018