In a remarkable turn of events, four members of the United States Supreme Court recently affirmed the constitutionality of state-sponsored religious bigotry. On June 30, by a vote of 5-4, the court struck down a Montana law barring the inclusion of religious schools as an option for families participating in educational choice programs – with the court’s liberal wing in opposition to the majority.
In Espinoza v. Montana Department of Revenue, the justices answered what the non-profit Institute for Justice called the “open question” arising from previous decisions in cases like 2002’s Zelman v. Simmons-Harris whether religious institutions could be explicitly excluded from choice programs.
The national effort to ban government support for Catholic schools goes back to the 1880s. The Republican Party, following the leadership of one-time House Speaker, U.S. Senator, and 1884 GOP presidential candidate James G. Blaine attempted to hamper the rise in influence of the Catholic immigrants coming from Europe in large numbers, in part through the use of “Blaine Amendments” that blocked state funding for religious schools.
Writing for the majority in Espinoza, Chief Justice Roberts cited them as being “born of bigotry,” adding that the “no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause.” The Court also said the “exclusion [of religious schools] from the scholarship program here is ‘odious to our Constitution’ and ‘cannot stand.’”
The Blaine Amendments were pushed by the kinds of people who, in 1884, referred to the Democrats as the “The Party of Rum, Romanism, and Rebellion.” It was a slogan that likely cost Blaine the White House while the state constitutional amendments named for him are a stain on the records of those who supported them, the states that adopted them, and the country as a whole. Yet it was liberal Justices Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan who in essence affirmed them by refusing to join the majority in Espinoza.
The anti-Catholicism of the period wasn’t limited to the schools. The same concerns that drove the Blaine Amendments produced groups like Planned Parenthood, whose leader, Margaret Sanger, spread the efficacy of birth control among poorer Catholics in the cities. Her motivation, to keep Catholics from having so many children, is well documented even if modern historians tend to overlook it.
Had this been an issue that involved race, the dissenters – had there been any – would have had their decisions linked unfavorably to such odious court rulings as the ones made in Dred Scott and Plessy v. Ferguson. But, because Espinoza involved religious bigotry, its antecedents are overlooked and the justices on the wrong side have not been called to account. That’s because, for too long, the “establishment clause” of the 1st Amendment has been given decided preference over the “free exercise” provision. As the latest decision hints, however, a day of reckoning when the two sections of the amendment concerning religious freedom must at least be given equal weight is coming.
Since the deadly biblical struggle between the two brothers Abel and Cain, humanity has grappled with the fundamentally existential paradoxes between good and evil, free will and subjugation, dominance and obedience, as well as fear and coercion. These bifurcations of societies and communities into freedom by personal responsibility and disenchanted irresponsibility by surrender to seductive illusions have always been lurking under the notion of obligatory assimilation throughout the 244 years of American history. The Declaration of Independence with its lofty ideals of ubiquitous equality and of inalienable rights to life, liberty and the pursuit of happiness, has always hidden the potential of disappointments in imperfect governments. This interaction between the expectant masses and the thus pressurized governments has created a permanently unpredictable interplay between the majority that has needed guidance and the minority that has been elected to command. The reactions to such an unstable situation have been either compliance or revolt. Both have depended on circumstances that mostly have been foreseeable but occasionally subject to barely explainable circumstances.
The death of George Floyd on May 25, 2020, in Minneapolis, Minnesota, during an attempted arrest, has given rise to both open-ended peaceful protests and unbridled lawlessness. Coupled with the relatively draconian anti-pandemic measures instituted by the federal and state governments, these two events have been the fundamental causes of the present infantile idiocy gripping the nation.
The initial reaction to the unwarranted violence has been fear. Cain was afraid of Abel, therefore, he killed him. He was punished by having been uprooted and condemned to impermanence. Similarly, those who destroy statues and monuments are devoid of solid roots in American society. Having been grown up without serious parental guidance and having been confused by their scant education, they are miserable in their primitive loneliness. Lacking any sense of personal responsibility, they demand absolute freedom for themselves and total subordination by the majority. The result is complete, absolute, unconditional insecurity, as well as chaos, anarchy, and terror.
Clearly, such a situation cannot be tolerated at all. The overwhelming majority must transition from merely defending itself to going on the offensive against the unfounded charges of racism, white supremacy, intentional oppression of minorities, and the senseless denigration of a successful national history. There is no institutionalized and systematic racism in the United States of America. The charge of white supremacy is a myth. Minorities are not oppressed. On balance, the 244 years of American history is unequivocally positive.
The only true meaning of democracy is that single issue minorities cannot seize power from the majority by force. Any nation would be in mortal danger if minorities with destructive ideas would want to impose on the majority unworkable ideas that would run counter to the constitution, the laws, the traditions, and the morality of the nation. Attempting to replace the Judea-Christian-based spiritual realm with pseudo-Marxist and outrightly fascist social justice and inhuman rights rhetoric, would only lead to the demise of Western civilization. Unless these minority movements can prove that their ideas and policies could win elections, they must be dealt with harshly within the confines of the rule of law.
The American Republic can only survive if the majority refuses to excuse evil. Black Lives Matter, Antifa, and like-minded minority movements are evil. As long as they embrace violence, they must not be permitted to operate outside the law. The media that promotes these evil movements must not be allowed to hide behind the First Amendment. Such destructive opposition cannot be glorified by the Democrat Party without political consequences at the ballot boxes.
The United States of America has its faults. Yet, the constitutional and political powers upon which it has existed for almost two-and-a-half centuries rest on firm foundations. For this reason, the United States of America has always possessed the strength necessary to progress without borrowing its inspiration from external sources, material or moral. Its greatness has come from its individual as well as its collective ethos.
The ultimate guarantee of this greatness resides in the character of the President, the Vice President, members of the cabinet, members of the House of Representatives, members of the Senate, and the office holders of the Judiciary. What the Democrat Party and the various extremist movements represent is antithetical to the Judeo-Christian governance of America. Marxism has always been against democracy, religion, the family, and the nation state. Fascism is the despotic version of Marxism. Thus, Marxism and Fascism can be defined as political regimes based on the rule of the minority over the majority, in which the minority controls politics and the economy. Moreover, both are irrational, because they are forced to make bad compromises, in order to survive. Finally, having trafficked in lousy ideas and disgraceful emotions, Marxism and Fascism ended up as abysmal failures whenever they were tried in practice.The state of the constitutional institutions have always determined the viability of a democracy. Lawlessness, chaos, and anarchy engenders a feeling of uncertainty. Adherence to the rule of law generates confidence. Presently, only President Trump comprehends what is really happening in the United States of America. Defending and reinforcing the Judeo-Christian foundations of America are the keys to preserving and strengthening the constitution-based governance of the greatest nation on earth.
Our national security should require that all remaining Confucius Institutes on American soil be shut down — immediately.
A concerned student at Binghamton University, a public university in New York, challenged the propriety of the school’s partnership with the China-funded Confucius Institute on its campus earlier this year. Last month, the university published an imperious rebuff to the inquiry.
“The campus is confident that the concerns you raise in your email do not apply to Binghamton University’s [Confucius] Institute,” wrote the school’s attorney.
Simply put: Move along. There’s nothing to see here.
But the FBI is moving in the opposite direction. In 2018, FBI Director Christopher Wray testified before a Senate committee, declaring his intention to investigate the Chinese Communist Party-funded Confucius Institutes on American college campuses.
Confucius Institutes are ostensibly educational partnerships between the Chinese government and host schools in foreign countries. Their stated purpose is to teach language and culture, but they do much more than that.
Professor Jonathan Lipman of Mount Holyoke College explains, “By peddling a product we want, namely Chinese language study, the Confucius Institutes bring the Chinese government into the American academy in powerful ways. The general pattern is very clear. They can say, ‘We’ll give you this money, you’ll have a Chinese program, and nobody will talk about Tibet.’” Tibet is one of the three “T-words” (Tibet, Taiwan, and Tiananmen) that cannot be discussed at the institutes, in violation of academic freedom and free speech.
Confucius Institute funding is tied to China Politburo member Liu Yandong, who formerly led the United Front Work Department. Steven Mosher of the Population Research Institute testified before Congress that the United Front Work Department’s purpose is “to subvert, coopt, and ultimately control Western academic discourse on matters pertaining to China.”
New York University historian Jonathan Zimmerman cautions that Confucius Institutes bear an alarming resemblance to the 1930s “Mussolini model” of funding “Italian language centers” in the United States to promote fascist propaganda. In light of academic freedom and transparency violations, Wray testified again in 2019, saying Confucius Institutes are “part of China’s soft power strategy and influence,” which “offer a platform to disseminate Chinese government or Chinese Communist Party propaganda, to encourage censorship, to restrict academic freedom.”
In announcing the FBI’s planned probe into campuses with Confucius Institutes, Wray corroborated what higher education researchers have warned for some time: These Confucius Institutes are not really educational projects and have no business being associated with higher learning institutions. They are propaganda centers planted on America’s campuses as part of China’s worldwide intelligence operations.
American colleges and universities depend for their existence on academic freedom and the transparency that supports it. Confucius Institutes, however, have been shown to abuse academic freedom and mock transparency.
It is thus heartening to see that roughly two dozen U.S. universities have moved to close their Confucius Institutes since 2014. In 2013, University of Chicago Professor Emeritus Marshall Sahlins penned an articleasking, “China U: Confucius Institutes censor political discussions and restrain the free exchange of ideas. Why, then, do American universities sponsor them?” He urged his university to set an example by revoking its partnership. In 2014, his university did just that, as did Penn State.
That said, about 80 schools still continue their ill-advised “partnerships” with these propaganda organs of the Chinese Communist Party.
Joining in opposition to Confucius Institutes in America are the national executive board of the College Democrats of America (along with 15 of its state presidents), the executive committee and national committee of the College Republican National Committee, Students for a Free Tibet, the Intercollegiate Taiwanese American Students Association, Students for Falun Gong, and a number of other organizations, all of which can be found by going to the website of the movement’s organizing body, the Athenai Institute.
The American Association of University Professors — hardly a right-wing organization — called on universities in 2014 to drop their Confucius Institutes, finding that they “function as an arm of the Chinese state and are allowed to ignore academic freedom.” The Canadian Association of University Teachers urged universities to get rid of them as well.
This exodus is not restricted to American educators. This year, Sweden closed its last remaining Confucius Institute. A 2014 Washington Post editorial argued that “academic freedom cannot have a price tag,” urging that Confucius Institute partnerships should be terminated if universities refuse to publish the terms of their contracts with them.
However, too many American universities continue muzzled. According to the National Association of Scholars (NAS), which has been keen to this threat for some time, as of May 1, there are a total of 86 Confucius Institutes in this country. “This includes six that are scheduled to close in summer 2020: the University of Maryland, New Mexico State University, the University of Missouri, the University of Arizona, Miami University of Ohio, and the University of California-Davis.” NAS also found seven institutes at K-12 public school districts.
That roughly 80 universities have failed to safeguard their institutions’ commitment to free speech against these propaganda efforts means that either they lack the moral fiber required to defend American core values, or they were never that hot about American values in the first place.
Consider the recent survey conducted by the nonpartisan Foundation for Individual Rights in Education, which found that 77 percent of colleges now use secret social media blacklists “to censor the public, in violation of the First Amendment.” Or perhaps it’s a third option: Is it all about the money? Lipman remarks, “In this economy, turning [Confucius Institutes] down has real costs.”
NAS reveals that the Chinese government “selects and pays the teachers, sends free textbooks, and offers upwards of $100,000 a year in annual funding” for the institutes. Although universities “are supposed to match” China’s contributions, they “typically do so by volunteering classroom and office space. The result is that colleges can charge tuition for courses that are being funded — and whose content is largely being decided — by the Chinese government” (emphasis added).
NAS’s findings are supported by a study published in The China Journal by Brookings Institution fellow David Shambaugh, who found that the funding “is in fact laundered through the Ministry of Education.” Laundered from where? From communist China’s External Propaganda Department.
If you still wonder about the purpose of Confucius Institutes, consider this assessment from someone who should know. Li Changchun, a member of the Politburo Standing Committee, praised the institutes as “an important part of China’s overseas propaganda set-up.”
What can be done? A number of proposed remedies are already circulating. In addition to sounding the alarm, NAS has called on schools that accept Confucius Institute dollars to refund the same amount back to the federal government, as well as enforce federal transparency requirements on the institutes. These and like measures would be a good start.
Better still, our national security should require that all remaining Confucius Institutes on American soil be shut down — immediately.
A lot to argue about!
Trump held his first post-lockdown rally last evening in Tulsa, Oklahoma. There was controversy before, during and after the event. Criticism was not confined to the content of the speech as usual but spread over the unusual areas of the timing, location, venue, and attendance of the rally.
The earliest criticism concerned the timing of the event. A Trump rally, held in an indoor arena, was criticized as a blatant violation of the CDC current (and often changing) recommendations regarding safeguards against the “Chinese virus”, as Trump calls it. Among the most obvious violations were the lack of social distancing in the densely packed house, without compulsory masks, and held indoors (as opposed to outdoors).
After the rally, much was made of the lower attendance. Not only were there noticeable empty bleachers (which the network cameras showed frequently), but also the scheduled outdoor appearance by the President was cancelled because the only crowd out there was the ever-present (thankfully peaceful) protesters. Nevertheless, there were approximately 18,000 or more in attendance, counting the seating on the floor of the arena, out of a published capacity of 19,000. One unaccounted-for factor was the absence of the 0ver-65 crowd who tend to be among the most loyal of the Trump base.
So, what to think about all this? First of all, there is the symbolic significance of the scheduling. The President has shown in various ways that the public health contingent – which essentially scared him (and all of us) into the lock-down in the first place – is no longer calling the shots in the White House response to the pandemic.
This column remarked very early in the process the fact that the public health perspective is necessarily limited. Never before in American history has this group been given such control over public policy. At the first sign of a public health threat, Mr. Trump, in typical CEO practice, called into service the finest experts he could find in this field – which he admitted was far from his own experience. He then followed their advice, quite uncritically. As I pointed out at the time, this was a huge gamble: if it went wrong, it could, among other things, cost him the election and even his place in history. (See https://drlarryonline.com/trumps-huge-gamble/)
After a while, he did begin to appreciate the narrowness of that perspective. But he was stuck in the middle of a lock-down which he had ordered! Thus, began the journey back to recovery, to normalcy. His diffusion of power to local politicians was a stroke of genius. Not only did he gradually shed the sole responsibility for the lock-down, but he made friends and evoked loyalties among an entire new group of politicians with whom he had had little prior contact. And it was acting out the essence of the Constitution, which sees the sovereign states as surrendering and thereby validating some of their powers to create the federal government.
This entire scenario was moving along quite nicely. Then two unexpected things happened: the Washington Democrats in Congress began to “adopt” the public health establishment, endorsing ever more stringent limitations on the population in the name of the pandemic. As this attitude began to percolate out to the state governors, the recovery slowed down.
By this time Trump and his people had fully realized that the lock-down had nearly ruined the economy and still threatened to do so. They went into overdrive to speed up the recovery. Trump was still winning, however, until the next shoe dropped: a cellphone video of the brutal murder of a defenseless Black man by a White policeman in Minneapolis went viral on social media. The reaction was a worldwide protest against civil authority in America. After a few peaceful marches, the movement turned violent and radical leadership emerged.
Among other secondary effects, the total attention of America — and much of the world – turned away from the economic recovery and toward the protesters and the rioters.
Some past events of this type have elicited soaring rhetoric from leaders such as the Reverend Martin Luther King, Jr. and Senator Robert Kennedy to begin healing the wounds. Soaring rhetoric is not one of Mr. Trump’s talents. Nor does he have the soothing, compassionate manner of a Bill Clinton or a George Bush. In the face of these disasters, Donald Trump stumbled.
The Democrat opposition immediately made him the face of the disaster. His poll numbers have tumbled, yielding to the reclusive Mr. Biden whose silence has served him well.
Trump may not be a great orator or an instinctive healer, but he does excel at one thing: he can draw thousands of impassioned participants to his rallies. This is his unique sandbox and he felt the urgency to activate it.
The Tulsa Rally was the first step on Trump’s road to recovery. It was an act of defiance to the public health establishment and their new sponsors, the Democrats and the press. It also emphasizes the simple truth that the virus is going to be around for a long time, and we have to learn to live with it while carrying on our normal economic activity. Our financial survival as a nation depends on it.
Whether Trump’s new strategy succeeds or not depends on the next steps. In one of Mr. Trump’s favorite sayings, “We’ll see what happens.”
Indeed, we will.
Photo by: Matt Rourke
FILE – This April 26, 2017, file photo shows the Twitter app icon on a mobile phone in Philadelphia. Twenty-six words tucked into a 1996 law overhauling telecommunications have allowed companies like Facebook, Twitter and Google to grow into the giants they are today. Those are the words President Donald Trump challenged in an executive order Thursday, May 28, 2020 one that would strip those protections if those companies engaged in editorial decisions like, for instance, adding a fact-check warning to one of Trump’s tweets. (AP Photo/Matt Rourke, File)
On Thursday, President Trump issued an executive order calling for new regulations under Section 230 of the 1996 Communications Decency Act that, he says, will prevent Big-Tech platforms from continuing what many believe is a pattern of discrimination against conservatives.
We’re not sure that’s the case — just as we’re not sure that much, even all of it will survive the inevitable challenges it will face in the courts. What we do know is that his effort to change the interpretation of Section 230 of the 1996 Communications Decency Act, just like his call for reform of libel laws during the 2016 campaign, should spark a national conversation about free speech that would be healthy for our republic.
Instead, the whole thing will ground down in pitched rhetoric passing back and forth between the president’s supporters and those who believe he is single-handedly responsible for the destruction of the nation, especially its core values and its reputation for having a civilized political process.
It seems clear Twitter’s Jack Dorsey, by allowing the presidential tweets to be footnoted, he’s acting like an editor, commenting on posts and making decisions about what other people can see. On its face, this would seem to put his platform outside the safe harbor Section 230 establishes to protect tech companies from being held liable in civil suits for things posted by platform users.
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey on the internet,” the order says. “This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”
That ought to be a nifty jumping-off point for a robust discussion of speech and how the protections provided by the First Amendment factor in — or don’t — to the part of the national conversation carried on in cyberspace. Legal scholars can point to numerous decisions upholding the idea the government can not infringe on speech, defined broadly to included campaign contributions, flag burning, pornography, as well as the written and spoken word when it occurs in the public square. That’s clear and has shaped a culture whose values generally extend into private space.
But what if the “public square,” however one defines it, now exists predominantly in a place that is privately owned. It’s worth discussing whether information carriers and conveyors like Twitter, YouTube, Facebook and Google have a responsibility to keep the space they own and operate open to all points of view, including the ones with which they disagree as well as the ones they may find abhorrent?
A strict reading of the U.S. Constitution would say as a matter of law, they don’t. But what about, to borrow a phrase so popular these days with those who would regulate just about every other aspect of the U.S. economy, their corporate social responsibility?
Further, the potential removal of Section 230 protections from any platform — which, as a matter of full disclosure, we also enjoy concerning the comments posted by readers of this our anything else we publish but not for the things we publish online or in print — is an opportunity for a vigorous discussion of the costs imposed on speech by the threat someone might get sued.
On the one hand, as we’ve seen an awful lot in the Trump era, people on both sides of the aisle have been telling outrageous lies and fabrications, made egregious exaggerations, and sullied the reputations of political leaders in both parties, journalists and entrepreneurs.
This had added an unpleasantly coarse overtone to the national debate yet, because of the way charges of libel, slander and defamation are viewed by the courts based on the existing case law, the victims of these slurs are often left without recourse and unable to recoup damages, if any. Tort reform is long overdue, we have long held, but some fresh eyes on this issue might help restore some sanity to a news business, forgive our obvious bias, driven by breaking television segments rather than the more thoughtful approach often taken by print media.
What the president has ordered is likely more a tempest in a teapot than a challenge to the constitutional order. But it raises issues worth talking about, intensely and for a long time in search of a new consensus concerning the role Big Tech plays in conveying information to the American people. Facebook’s Mark Zuckerberg has it right when he says these platforms shouldn’t be “arbiters of truth.” That doesn’t mean we shouldn’t have a conversation about what they should be.
Comedian Ellen DeGeneres and former President George W. Bush were spotted enjoying a Sunday afternoon together watching the NFL game between the Dallas Cowboys and the Green Bay Packers in the Dallas stadium.
After the cameras televising the game put the two on screen, the moment immediately went viral with many Twitter users quick to shame the liberal comedian and television host for spending time with the former conservative president.
On Monday, DeGeneres addressed the backlash on her show, giving Americans a much needed lesson in civility, quipped with humor and humility.
“During the game, they showed a shot of George and me laughing together, and so, people were upset,” DeGeneres explained. “They thought, why is a gay Hollywood liberal sitting next to a conservative Republican president? Didn’t even notice I’m holding the brand-new iPhone 11.”
DeGeneres continued to make a point that Americans would do well to live by in an age of historic levels of political polarization saturated with contempt.
“Here’s the thing. I’m friends with George Bush. In fact, I’m friends with a lot of people who don’t share the same beliefs that I have,” DeGeneres said. “We’re all different. And I think that we’ve forgotten that that’s okay that we’re all different.”
DeGeneres analogized to having friends who wear fur, saying that while she also didn’t like it when people wear fur, it doesn’t stop the former vegan from being friends with those who do.
“Just because I don’t agree with someone on everything, doesn’t mean that I’m not going to be friends with them,” DeGeneres said. “When I say be kind to one-another, I don’t mean only the people that think the same way that you do. I mean be kind to everyone.”
The message to be kind is simple. In fact, it’s a lesson learned as children, but often appears to be forgotten in the political world as America’s growing addiction to contempt continues to sow division in a deeply divided nation.
According to a 2016 poll from the Pew Research Center, 55 percent of Democrats said they had a “very unfavorable” view of Republicans while 58 percent of Republicans held the same view of Democrats. A more recent Pew survey published in July shows 85 percent of American adults believing the “tone and nature” of our political discourse has become more negative in recent years.
The deterioration of civil discourse in America has led to the destruction of genuine relationships essential to the human condition, which, as DeGeneres explains is unnecessary. A Reuters/Ipsos poll found that 15 percent, or one in six Americans, reported that they had either stopped talking to a close friend or family member over the result of the 2016 presidential election.
It is not however, simply the restoration of American civility that will save the country from further division, but it is the eradication of contempt for one another. The country has developed a sick addiction to deeming people with different political beliefs as less than human, and not worth listening to. Perhaps even, “deplorable.” One can be civil and tolerant with another and still avoid discourse.
DeGeneres’s monologue is an important message that is so simple yet so easily forgotten in the modern political environment, but is imperative to healing the nation. DeGeneres’s speech is a good reminder for many that life should not be defined by one’s political preferences.
The day when universities are forced to rediscover their historic role as guardians of open inquiry and debate is coming, whether they like it or not.
There was a time, in the recent past, when universities were in the grip of a kind of speech-code fever. Even as recently ten years ago, after a wave of litigation striking down campus speech regulations, the vast majority of American colleges and universities still kept clearly unconstitutional speech codes on the books. They kept losing in court, yet they still couldn’t quit their codes.
Fast-forward a decade and that’s changed. Between 2009 and 2019, the portion of surveyed American universities with what the Foundation for Individual Rights in Education classifies as “red light” speech codes has shrunk from 74.2 percent to a mere 28.5 percent, and a total of 17 states have enacted some form of campus free-speech legislation. But the impulse to censor dies hard, and some schools have been nothing if not creative in their efforts to control speech without explicitly and clearly running afoul of the law. Witness, for example, the phenomenon of the “bias-response team.”
While the system varies from university to university, in general a bias-response team represents an institutional effort to identify alleged student bias and bigotry and eliminate it through some form of reeducation. Students report speech they find discriminatory or otherwise problematic, a university team investigates the “incident” — including sometimes meeting with the alleged offender — and then often creates a report describing the events. Sometimes bias-response teams can and will refer conduct to university disciplinary officials or university police if they feel more substantial punishment is warranted.
Last year, a group called Speech First filed an important lawsuit against the University of Michigan, challenging the content of the university’s bullying and harassment policy and its bias-response team’s procedures. The district court denied Speech First’s request for an injunction, holding in part that the group lacked standing to challenge the policy. Under the law, a court will not grant standing to a plaintiff in the absence of what’s called an “injury in fact,” and the question was whether the members of Speech First had suffered an “objective chill” to their free-speech rights or a mere “subjective chill.” For the chill to be objective, there must be proof that a “concrete harm” (enforcement of a statute or regulation) “occurred or is imminent.” If the plaintiff is concerned merely with the defendant’s “data-gathering activity,” and can’t meet the “concrete harm” standard, then the chill is subjective.
Make sense? To put it as plainly as possible, Michigan argued that the courts should move along — that there was nothing to see here because the bias-response team itself couldn’t punish anyone. Speech First said that actually, there was a problem, because the bias-response process itself could act as a form of punishment, and the team could still refer incidents to those with power to explicitly punish students.
Yesterday, in a decision with national implications, the Sixth Circuit Court of Appeals sided with Speech First, reversed the district court and ordered it to reconsider the group’s request for an injunction. Its ruling recognized the obvious power of the bias-response team:
The Response Team’s ability to make referrals — i.e., to inform OSCR or the police about reported conduct — is a real consequence that objectively chills speech. The referral itself does not punish a student — the referral is not, for example, a criminal conviction or expulsion. But the referral subjects students to processes which could lead to those punishments. The referral initiates the formal investigative process, which itself is chilling even if it does not result in a finding of responsibility or criminality.
This is quite right: There isn’t a student alive who wouldn’t find the bias-response team’s investigative process intimidating. But the problem extends beyond the team’s ability to refer students for punishment; it reaches to the team’s power to request a meeting with an accused student, as the court went on to explain:
Additionally, the invitation from the Response Team to meet could carry an implicit threat of consequence should a student decline the invitation. Although there is no indication that the invitation to meet contains overt threats, the referral power lurks in the background of the invitation. It is possible that, for example, a student who knows that reported conduct might be referred to police or OSCR could understand the invitation to carry the threat: “meet or we will refer your case.” Additionally, the very name “Bias Response Team” suggests that the accused student’s actions have been prejudged to be biased. The name is not the “Alleged Bias Response Team” or “Possible Bias Investigatory Team.” It is the “Bias Response Team.”
The dissent argues that Speech First did not present any evidence of actual or imminent interaction with the bias response team, but — as the majority notes — that’s the entire point of the chilling-effect analysis. When the spectral threat of government action looms, private actors will refuse to engage in any speech that could even potentially result in state investigation.
The university will now be required to defend its response team on the merits, and it is highly likely to lose. But even this standing ruling alone is likely to spawn additional litigation, including in different federal circuits. Once again, universities will find themselves on the defense — at least until the day comes when they at long last rediscover their true historical purpose, to serve, in the court’s words, as “guardians of intellectual debate and free speech.”
Think corporate suppression of speech isn’t a problem? Think again. Silicon Valley is just getting warmed up in its efforts to shape public opinion for the 2020 elections.
YouTube on Monday banned three more independent commentators: James Allsup, “The Iconoclast,” and “Way of the World.” Their crime? Outspoken defense of Western Civilization, which apparently now is considered “hate speech.” Taken together, the videos posted by these three commentators had been watched more than 100 million times.
The most prominent of the newly banished, James Allsup, had over 450,000 subscribers. Thanks to this latest move by YouTube, America’s de facto Ministry of Truth, nearly a half-million Americans now have less reason than ever to believe their First Amendment rights will be respected, or, by extension, any of their constitutional rights.
Do the masters of YouTube fear “right-wing extremism?” Then they need to stop taking extreme measures that provoke extreme resentment. They need to stop engaging in fascist censorship.
For those of us who have never considered ourselves extremists, and who don’t necessarily agree with everything Allsup and these other banished commentators ever did or said, this is nonetheless a matter of principle. It is intolerable to let private business interests lobotomize our collective consciousness in pursuit of their corporate political agendas. That should not be happening here, in a nation that considers freedom of speech to be one of its fundamental principles.
One independent commentator who hasn’t yet had his tongue ripped out by the YouTube overlords, Vincent James, posted a scathing reaction to this latest act of corporate censorship:
The CEO of YouTube recently came out and talked about how they have an obligation to bring you the news, how they have an obligation to push down fake news and prop up authoritative news sources, and this sounds a lot like a publisher, and not like a platform.
Later in his video, James elaborates:
This is a matter of free speech in a new public town square that is the internet. There is no soapbox in the middle of the town square any longer, “town square” is social media. These social media companies have gotten by far too long with this protection and immunity by the federal government for what their users post.
There’s a whole community of people who smoke meth and film themselves on YouTube. This is illicit material, and those videos aren’t being taken down. If YouTube and Facebook and Twitter and all these different media companies were responsible for the content we post, they would be sued into absolute bankruptcy a long time ago. They have this blanket immunity from the federal government because they promote themselves as platforms, as a blank piece of paper where anyone can post anything as long as it follows the law of the land where they reside.
The law of the land in the United States does not include hate speech, as a matter of fact the supreme court has ruled on this multiple times unanimously. The “hate speech,” the “unpopular speech,” is the speech that needs to be protected the most.
Many free speech advocates may disagree with some of the commentaries Vincent James has offered, but he is absolutely right about the First Amendment, and he is absolutely right about these social media companies. They are either platforms or they are publishers. They cannot be both at the same time. This is a matter that requires executive action, or an urgent court battle, or legislative remedy. Don’t hold your breath.
Silencing online commentators takes many forms. They can be completely terminated, which is something occurring with increasing frequency. But they can also be deboosted, or shadowbanned, where the traffic to their sites is reduced.
Some of the ways this is done are through manipulated search results, removal from “recommended videos,” removal from trending topics, or by throttling down their bandwidth. Sites can also be demonetized, where ads are no longer served onto their pages, or, even more insidiously, partially demonetized, where ads still arrive, just fewer of them.
Unwanted commentators can also be attacked by throwing them off of subscription platforms such as Patreon, or even by expelling them from the payment processors such as PayPal.
Anyone who doesn’t think this is happening, and happening disproportionately to conservatives, is ignoring a mountain of evidence. Here, compiled by Vincent James, is a list of websites that have been censored by the social media companies. Here, published earlier this year by American Greatness, is a similar list of politically incorrect vloggers, and here is a list of politically inconvenient climate information websites.
There are alternative platforms, at least until the SJWs apply enough pressure to those to make them engage in similar censorship. BitChutenow hosts James Allsup, Way of the World, and The Iconoclast. But BitChute is buggy, slow, and has a bad search engine. Its global Alexa traffic ranking is 3,790. Think that’s good? YouTube ranks second, right after Google.
BitChute will improve. But it is a fantasy to pretend these alternative platforms will challenge the monopolistic reach of Google’s search algorithms or YouTube’s videos. They will be stigmatized as a right-wing ghetto, and they will barely show up on search results. As a result, they will not offer the viral, serendipitous discovery to open-minded virtual wanderers.
How many of us found many of these powerful alternative voices by accident? Unless the monopolies, who reach everyone, change their ways, that will never happen again.
When principles as fundamental as the First Amendment are violated, there are consequences. The immediate consequence is a rising fury and potential radicalization of every American who is watching this travesty unfold and sees the injustice, and sees either indifference or active misrepresentation coming from the establishment media and establishment politicians.
The more far-reaching consequence is the fact that if this isn’t stopped, right now, and reversed, moderate conservatives and moderate nationalists will develop increasing sympathies for their more extreme counterparts.
Why wouldn’t they? Every shred of content coming out of the mainstream media and entertainment, social media, corporate marketing, academia, K-12 public education, and nonprofit advocacy groups is globalist pablum. It’s sickening to watch, and now, we are expected to tolerate censorship of alternative voices found online?
An article published last month by the BBC comes embarrassingly close to revealing the motives behind escalating online censorship. Security correspondent Gordon Corera writes: “The more mainstream these narratives become, the greater the tension will be over whether they really are extreme or whether they represent acceptable political discourse, and the views of a substantial number of real people.”
“These narratives.” That is the threat. What if “real people” don’t want open borders? What if they would like the facts, not a bunch of skewed BS, regarding how immigration policies affect the economy and social cohesion? What if they want balanced opinions, or just want to hear the other side for a change, on the issues of multiculturalism, race, feminism, gender “equity” and social justice? What if “real people” sometimes find an unrepentant critic of identity politics to be a breath of fresh air? What if they believe there should be a robust and honest debate over globalism, or over climate change?
Everyone knows what these social media companies are doing. They are trying to influence public opinion in favor of a globalist progressive agenda. No national borders. Anti-racist racism. Anti-sexist sexism. Gender “fluidity.” Corporate socialism. And of course, “Trump is Hitler.”
It’s working. But they must stop. Because if they do not stop, there will be a credible case to be made that the upcoming 2020 election results are not legitimate. Remember how the Democrats made that claim in 2016, because Russian “bots” allegedly swayed a few thousand votes? Determined social media manipulation of the entire online public square will affect millions of votes.
YouTube, and all the rest—back off.
By the Editors • National Review
In the past two weeks, two different airports have blocked Chick-fil-A from the premises. First, the city council of San Antonio banned the chain because, in the words of councilman Robert Trevino, “everyone should feel welcome when they walk through our airport.” Then, two weeks later, a New York Democratic assemblyman, Sean Ryan, announced that the Buffalo airport food vendor was prohibiting Chick-fil-A from operating in its food court. Ryan was explicit about the reason, declaring in a statement that “the views of Chick-fil-A do not represent our state or the Western New York community.”
The immediate justification for the bans was a ThinkProgress allegation that the Chick-fil-A foundation supported “groups with a record of anti-LGBTQ” discrimination.” ThinkProgress was resurrecting a 2012 controversy over Chick-fil-A contributions to an affiliated foundation that gave grants to conservative Christian groups, including groups that opposed same-sex marriage, and over comments by Chick-fil-A president Dan Cathy supporting the traditional, biblical definition of marriage. There was no allegation that Chick-fil-A discriminated against gay customers or gay employees.
In 2012, a wave of Democratic city officials, including the mayors of Boston and San Francisco, threatened to block Chick-fil-A from opening restaurants in their cities, and Chick-fil-A’s customers responded with Continue reading
By David Harsanyi • The Federalist
In a recent op-ed, Facebook founder Mark Zuckerberg implored the state to get more involved in governing the internet. “Every day, we make decisions about what speech is harmful, what constitutes political advertising, and how to prevent sophisticated cyberattacks,” he began. “These are important for keeping our community safe. But if we were starting from scratch, we wouldn’t ask companies to make these judgments alone.”
For starters, there’s no such a thing as “harmful speech.” There might be speech that offends us. There might be speech we disagree with. There’s also speech that’s inarguably ugly, dishonest, pornographic or despicable. “We” allow these unpleasant words to go largely unregulated because we value the broader liberty of being able to offer opinions without government censors dictating which thoughts are acceptable.
But if Zuckerberg wants to rid his platform of this “hate speech,” no one is stopping him. Facebook allegedly employs a number of new mechanisms to achieve this very task. Good luck.
But Zuckerberg also claims that “we,” as society, now have a special responsibility to facilitate his efforts to keep people “safe” from reprehensible rhetoric. We have no such obligation. Facebook already offers users the ability to block or Continue reading
By Rich Lowry • National Review
The same Democrats outraged by Donald Trump’s alleged offenses against the First Amendment passed, as their first priority, a speech-restricting bill opposed by the American Civil Liberties Union.
Trump shouldn’t call the media “the enemy of the people” or inveigh against Jeff Bezos for owning the Washington Post, but Nancy Pelosi’s H.R. 1, which passed the House last week, is the true affront to the Constitution.
The wide-ranging legislation purports to reform campaign finance with a series of vague, sweeping measures that will act to chill speech when they don’t actively regulate or squelch it. H.R. 1 is called the For the People Act but would be more aptly titled the Be Careful What You Say, It Might Be Illegal Act.
Progressives can’t abide the notion that people in this country get together to spend money on advocacy outside the purview of the government — in other words, freely promote their favored causes as befits a free people living in a free country.
H.R. 1 cracks the whip. As the Institute for Free Speech points out, the current campaign-finance rules limit expenditures that expressly advocate for the election or defeat of a candidate, or refer to a candidate in public advertising shortly before an election. The idea is to have clear rules so groups can promote their views without fear of running afoul of federal regulations.
H.R. 1 blows this regime up. It seeks to regulate any speech at any time that “promotes or supports the candidate, or attacks or opposes an opponent of the candidate,” a fuzzy standard that could catch up all manner of nonelectoral messages (e.g., “Trump’s tariffs are a mistake,” or “Support Trump’s wall”).
H.R. 1 also widens the definition of coordination between a group and a candidate to encompass almost any communication. It’d still be permissible to discuss a candidate’s position on an issue, so long as there is no talk “regarding the candidate’s or committee’s campaign advertising, message, strategy, policy, polling, allocation of resources, fundraising, or other campaign activities.”
Even if a group doesn’t coordinate with a candidate under this loose standard, it could still be deemed to have coordinated if it were founded by someone who goes on to become a candidate; relies on the professional services of someone who also did work for a candidate; or is run by someone who had conversations about a campaign with the relative of a candidate.
On top of all this, H.R. 1 goes after the privacy of donors to advocacy organizations. It mandates the disclosure of the names and addresses of donors giving more than $10,000 to groups that engage in “campaign-related disbursements.” Given our toxic political environment, this would potentially subject the donors to harassment and abuse, and they might not even be aware of or support the communications in question.
Supporters of H.R. 1 say it is necessary to rein in super PACs, the frightening-sounding organizations that aren’t as unregulated as everyone believes (the Federal Election Commission gets reports of their expenditures and contributions). But, as the Institute for Free Speech notes, the bill affects a much broader array of “trade associations, unions, business groups, and advocacy organizations, such as Planned Parenthood and the National Right to Life Committee.”
Love them or hate them, these groups are part of the warp and woof of American public life, and they shouldn’t have to think twice before engaging in acts of persuasion that enrich and enliven our democracy, not corrupt it.
The Supreme Court has long put an emphasis on bright lines in its campaign-finance jurisprudence exactly to avoid a chilling effect on advocacy. It has said that laws must be “both easily understood and objectively determinable.” The campaign-finance provisions of H.R. 1 are neither.
What H.R. 1 makes abundantly clear is that the foremost threat to the First Amendment are the people who believe that there is something untoward about unregulated political speech and seek to bring it under control.
By Kyle Smith • National Review
The First Amendment has never been stronger. Yet freedom of speech is under dire threat. Both of these things can be true, and both are.
The kinds of corporations that frequently proclaim their dedication to the First Amendment — and are quick to denounce President Trump’s taunts of the media — are doing something Trump has not done and will not do: muzzling writers. Publishers are presenting authors with contracts containing clauses that essentially say, “We will cut you loose should a Twitter mob come after you.” It’s a revolting, shameful trend.
As Judith Shulevitz writes in the New York Times, Condé Nast, publisher of The New Yorker, Vanity Fair, and many other magazines, recently started burying in its standard writers’ contracts a landmine. If the company should unilaterally rule that the writer has become “the subject of public disrepute, contempt, complaints or scandals,” the publisher can void the contract. Shulevitz mislabels such stipulations “morality clauses.” To paraphrase Mae West, morality has nothing to do with it. “Cowardice clauses” would be nearer the mark. Continue reading
By Jeremy Carl • The Federalist
Less than two weeks ago, President Trump signed the U.S.-Mexico-Canada Agreement intended to be the successor to the North American Free Trade Agreement, which Trump has attacked for decades. The White House says the agreement will “better serve the interests of American workers and businesses” and “includes the strongest digital trade … provisions of any United States trade agreement.”
Unfortunately, an obscure article in one provision of the agreement only serves the interests of the largest tech monopolies by granting them special privilege to censor conservatives. Congress should demand the removal or amendment of this article before giving consent to confirm section 230.
How did this happen? Big Tech lobbyists orchestrated the quiet insertion of a seemingly innocuous provision (Article 19.17) into the deal that is based on Section 230 of the Communications Decency Act. Continue reading
by Ben Domenech • The Federalist
The firing of Kevin Williamson from The Atlantic on the day he was set to give an opening Q&A in their offices was sadly unsurprising given the pattern of these types of hires. It is an incident that will be referred to largely as a “media story”, meaning that Williamson is not a figure so prominent nor The Atlantic a brand so ubiquitous as to graduate this to a national story, in the way that the situations of Brendan Eich at Mozilla or James Damore at Google became national cable news stories. But they really are the same story, a story about the times that we live in and the changing nature of America. They tell a story about what happens when a talented individual has deeply held beliefs those in his profession find unacceptable.
This story is a predictable continuation of the left’s ownership not just of media but indeed of all institutions. It is depressing. It is predictable. And it is where we are as a country now. It is not confined to the realm of ideas. Eich, Damore, Williamson and others are subject to blacklists and HR reports and firing in every arena of industry and culture. If you have wrongthink, you will not be allowed for long to make your living within any space the left has determined they own – first the academy, then the media, then corporate America, and now the public square. You will bake the cake, you will use the proper pronoun, and you will never say that what Planned Parenthood does is murder for hire, and should be punished as such under the law.
Imagine what the few lonely voices that inhabit a position at a prominent publication or network to the right of Hillary Clinton on social issues if their hiring was taking place right now. Imagine what Ross Douthat would be going through if the Times hired him today (recall he was at The Atlantic before that). Continue reading