Tag Archives: First Amendment

Culture, Current Events, History, Politics

Number One

The Supreme Court has certainly received a lot of attention lately: hearings, pending decisions, leaked drafts and partisan splits.  We tend to focus a lot on partisan splits, but 9-0 unanimous decisions occur more often than 5-4 and 6-3.  And those are just announced decisions.  I suspect they are also quite common on procedural things, like which cases to hear.

Shertoff proposed flag

Last week the Court announced a 9-0 decision on an interesting case, Shertleff v Boston.  Quickly: Shertoff was a free speech case in which a citizen (Shertleff) was denied flying a Christian flag (red cross on blue patch with white background) on one of three masts at the Boston city hall.  The city had never denied such a one-day request before.  But the court considers such facts not so much as the law. [1]

Regarding the law, the court has always bent over backward to protect free speech.  And the right to have that free speech heard – or, in this case, seen.  It’s not the first time Boston and the area has been so severely spanked by SCOTUS on speech.

In 1993 the Irish Gay, Lesbian, Bisexual Group of Boston (GLIB) wanted to participate in the St Patrick’s Day parade.  They were denied (although not by the city, rather by an independent organization running the parade).  GLIB sued and Hurley v Irish-GLIB, Inc went to the highest court.  These things usually take a while to wend through the court system.  The court decided again, in 1995 and unanimously 9-0, that free speech gets pole position.  Gays et al must be allowed to march in public parades.

Another unusual 9-0 decision came in 2014 in McCullen v Coakley.  A Massachusetts law was passed in 2007 mandating an anti-protest “buffer zone” around entrances to abortion clinics – even if that buffer extended to public areas like sidewalks. Protestors sued. Free speech won unanimously, again.  The whole law was stricken.

In every case above the most progressively liberal and conservative justices united to rule in favor of the most liberal interpretations of free speech, even if it went against their personal social principles in the specific cases.

This even applies to burning the flag, see Johnson v Texas, decided in 1989.  Although narrowly decided at 5-4, it’s interesting that conservative-leaning Kennedy and most-conservative Scalia voted with the majority to permit flag burning.  [Kind off odd, as the specific flag burning incident was a protest against Ronald Reagan, done just outside the Republican convention of 1984 — and by 1989, when the case was finally decided, Reagan had recently appointed Justice Anthony Kennedy].

Not long after Johnson, above, the court heard a very similar case.  In response to Johnson Congress quickly passed the Flag Protection Act, which prohibited flag desecration and mistreatment.  They basically dared the courts to take up the issue again.

This got to SCOTUS quickly, dying a 5-4 death in 1990, in United States v. Eichman.  Again, with conservatives Scalia and Kennedy concurring: flag burning is speech.  Speech is protected.

Antonin Scalia, SCOTUS Judge 1986-2016

Years later Judge Antonin Scalia stood by his votes.  “If I were king, I would not allow people to go around burning the American flag.  However, we have a First Amendment, which says that the right of free speech shall not be abridged…”

Scalia’s reference to the First Amendment to the Constitution gives us a good chance to review this very important part of the US Constitution.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

One thing that’s interesting right from the start is that this Amendment, as written, is directed at “Congress” — not to the states, or to the state legislatures, or to city governments.  Yet the Supreme Court, and lower courts by precedence, have determined for a long time that these rights (religion, speech, press, assembly) are so very important that they apply to all branches of government.

These rights are indeed important.  Let’s consider Freedom of the Press.  This points to just one reason why I personally did not really react much to the great fear-stoking regarding the tenures of, let’s say, our last two presidents: Obama and Trump.  What’s that you say?  Because they were pummeled and attacked by the press, and cartoonists, daily.  None of those publications or voices were silenced, arrested, or “disappeared” by a government response.  We can extend this to the many anti-this and pro-that demonstrations that happened during each presidency.  Free press and free speech all.  [Presidential claims of “fake news” and a bible walk to St John’s notwithstanding].

Freedom of the press is so important it should cause us to consider how contemporary events would have played out if such a valuable and cherished freedom truly existed in, say, China and Russia.

Would there be an atrocity-filled war in Ukraine right now if Russia had such a court-protected freedom?  How might the Covid pandemic have played out if China had freedom of the press?  Reporters Without Borders (RSF) rates China 175th and Russia 155th (out of 180) in the world in Press Freedom.

By way of comparison, the US gets an overall top-grade score of “Good”, and “Satisfactory”, but still comes in at only 42nd, per RSF.  Saying the “US is better than most” is not anything like saying “Russia and China are better than North Korea” (dead last). They are so very low because of authoritarian government interference and censoring. Although we (the US and much of Western Europe) can do better, we are in pretty good standing regarding press freedom.

In absolute freedom of speech, the US does rank #1 in the world (World Economic Forum rankings). [2]

“I disapprove of what you have to say, but I defend your right to say it” has long been a maxim of US law and principals. [3] Recent Rasmussen polls regularly show over 80% of Americans believe free speech is more important than offending someone, and prefer it to giving government control of speech content. [Caveat, among younger Americans this number is dwindling.]

In reviewing the RSF’s Free Press evaluation criteria the US seems to lose ground for a variety of non-government reasons:  there are far fewer jobs for investigative journalism than there used to be; many writers self-censor; much media fails to fairly present alternative views. [4] It’s all related and these conditions continue to morph.  All-in-all, these topics are very large kebabs to skewer. As is Free Speech, in the context of, say, Twitter and Elon Musk. I’ll leave those for others to tackle.

Here’s to #1.  The First Amendment, that is.

Peace,

Joe Girard © 2022

Thanks for reading. As always, you can add yourself to the notification list for newly published material by clicking here . Or emailing joe@girardmeister.com

Footnotes below.  Acknowledgements to recent articles by Jeff Jacoby (Boston Globe) and The Economist for stimulating the thoughts that led to this essay.

[1] More on recent Shetleff Case: https://www.scotusblog.com/2022/05/boston-violated-first-amendment-when-it-rejected-christian-flag-court-unanimously-rules/

[2] This is supported by a 2015 Pew Research poll, here.  By 2021, the US has dropped into a virtual tie with Norway and Denmark for #1 [link], which apparently has more to do with Americans’ perception of free speech than actual government or private censoring.

[3] This quote is often attributed to Voltaire, 18th century French philosopher and strong proponent of civil liberties.  It’s actually probably best attributed Evelyn Beatrice Hall, an early 20th century biographer of Voltaire, trying to capture Voltaire’s philosophy.

[4] Figure and scoring, ref: Reporters without Borders site:
Reporters Without Borders site

Reporters without Borders 2021 World Map, hard to believe Russia is red, not black.  But this was before Ukraine.

White (score 0-15) relates to a Good Situation.
Yellow (score 15-25) reflects a Satisfactory Situation.
Orange (score 25-35) represents a Problematic Situation.
Red (score 35-55) represents a Difficult Situation
Black (score 55-100) represents a Very Serious Situation

 

 

Current Events, History, Politics

We are all Citizens, but not United

Author’s note: 3/13/2016 — On the occasion of my first visit to Barr Lake State Park, Colorado

We are an organization dedicated to restoring our government to citizens’ control.
Through a combination of education, advocacy, and grass roots organization, we seek to reassert the traditional American values of limited government, individual freedom including freedom of enterprise, and national security.
Our goal is to restore the founding fathers’ vision of a free nation, guided by the honesty, common sense, and good will of its citizens. [1]

There are very, very few natural lakes in Colorado, outside of the mountain area. Probably zero. Grand Lake, from which the Colorado River flows, on the western extreme of Rocky Mountain National Park, is the only significantly sized lake in Colorado, but it is in a pretty mountainous area. Fact is: most of Colorado – particularly east of the Rockies – is parched most of the year. Hence: no lakes.

This was a problem for 19th and early 20th century farmers. Creeks and shallow draws would fill with water during spring and early summer snow-melt run-off, only to go mostly dry for most of the rest of the year. Farmers united to form cooperatives and local water management corporations to manage water so that food could be produced for Colorado’s rapidly growing population. And for its growing economy.

Even a mildly casual observer of eastern Colorado’s terrain notices that it is crisscrossed with ditches and pock-marked with man-made lakes. These provide water – with senior and junior water rights – via Western water law. Such laws can appear as twisted as the ditches and canals that were developed along with them.

One of the water gems in the Denver area is Barr Lake. Originally a buffalo wallow [2] near current Brighton and Lochbouie, it was a low draw that gathered water in the spring and early summer, allowing grasses to grow and attracting animals like the bison, rabbits, coyote and hawks. The location gained interest as a potential reservoir when the Burlington & Quincy railroad came through in the early 1880s (a well-used Burlington-Northern line still passes by there).

Over the decades a ditch was dug which drew water from the South Platte River to this low-lying area. The ditch was enhanced and — for a while — others added. A dam was added, and  large reservoirs were built that provided a huge number of benefits. Eventually the reservoirs were joined into a single large water management body of water: Barr Lake.  But the bottom line was it provided a steady supply of water. Water for farmers – at first mostly sugar beet farmers: at the time referred to as white gold. Water for native trees like Cottonwoods to grow. Water attracted waterfowl. Fish came. Eagles, osprey, even seagulls. It became an end-point and a stop-over for migrating birds. A gem.

Since the early 1900s the Barr and Milton Reservoirs have been owned and managed by the Farmers Reservoir and Irrigation Company (FRICO). FRICO was incorporated in Colorado in 1902, as a corporation with the mission of protecting the water quality, and steadying the quantity, of water available for agriculture in and on the front range of Colorado. This is the beginning of how many of the Farm-to-Table and fresh Farmer’s Markets products get to our tummies every week, every day. Agriculture is a multi-billion dollar industry in Colorado. It provides food, and jobs. Barr Lake is central to that.

FRICO manages Barr Lake in coordination with the State of Colorado’s Wildlife and State Park departments. Eagles nest and winter there. Osprey spend their summers there. It is host to an education center and a raptor center. It is the locale of some of the best birding in Colorado. Barr Lake is central to the wonderful wildlife of Colorado’s front range prairies.

Birding at Barr Lake, Brighton, Colorado

Birding at Barr Lake, Brighton, Colorado

Now, I want you to imagine a situation wherein a legislator or executive of the state of Colorado (or the Federal Government) wished to do something to harm the interests of the farmers, nature enthusiasts, and birders of Colorado. Perhaps they wish to allow a little more industrial effluent into the canals that feed the lake. Perhaps lay state’s claim to the water for some use they deem could help raise more tax dollars; like more suburbs.

Would we allow FRICO to speak in defense of the lake? If the politician had a shady past and questionable judgment, would we allow FRICO to allege that the politician had ulterior motives … that they didn’t hold the best interests of our citizens in high priority? Would we allow them to produce a documentary movie?

Hold that thought.

I live in the town of Erie, which is an incorporated Town in the state of Colorado. Naturally, it has a Chamber of Commerce, which is an incorporated corporation in the state of Colorado with the mission to promote the community; to promote its economics, businesses, environment and culture.

Imagine a situation wherein the state has legislators, or candidates for office, who wish to impose their own visions on Erie. More fracking, less fracking. Taking 10% of our water rights for state needs. Revoking access to commercial areas. Limiting annexation possibilities.

Would we allow the Chamber of Commerce to speak in defense of the interests of Erie?

To point out where said politicians had demonstrated poor judgment in the past? To produce and market a movie about said politicians?

_____________________________

For almost all groups of individuals who have some common interest … corporations are formed. Be they Home Owner’s Associations, Labor Unions, Kiwanis Clubs, Optimists Clubs and Rotary Clubs, or Wal-Mart and Home Depot.

Some groups, like from the quote atop this essay, wished to inform the public about a candidate for president whom they found especially egregious. The year was 2007 and her name was Hillary Clinton. Do we allow people to express their concern about her qualifications and history? They made a movie about their concerns and were subsequently sued.  The suit ended up in the Supreme Court. In the end — long after the election — they won their case: the freedom to express their views.

You might recognize this as the famous/notorious “Citizens United” case. (Actually Citizens United vs. Federal Election Commission). Perhaps not. But the claim (mostly from the Left) is that “corporations aren’t people.” At least insofar as freedom of speech is concerned.

Many are very agitated that “corporations” have a free voice in politics. About how our country is run. I can’t completely disagree with that. I’m concerned too.

Great. Let’s go with that. Let’s shut down free speech for corporations. If free speech and access to deliver a message is bad for Citizens United, and Nabisco and Hersheys and Exxon and Chevron and Monsanto … then it’s bad for the Farmers Irrigation and Reservoir Company, most Chambers of Commerce, most community service organization, Home Owners’ Associations, Unions and …

Let’s hold on a minute. Magazines, and Newspapers and TV stations are corporations. Or they are parts of corporations. They often do the hard legwork of investigative journalism that tells us what is wrong with US politics.

Think early 1970s: Woodward and Bernstein at the Washington Post. Deep Throat. Exposing a sitting president (Nixon) as obstructing justice. A defiled president then resigns in ignominy. And rightfully so!!

If we shut down political free speech by corporations, we are effectively saying that magazines and newspapers and radio programs and TV programs and even on-line blogs have no right to express their opinion. Or attempt to express their opinions. Or make movies …

Because … OMG! … they might be corporations.

Maybe all these “Citizens United” worry-warts are all correct. But it is a very, very slippery slope. Here in the United States we protect freedom of speech, even if it is from a corporation, or from someone whose message we really don’t like.

And if it’s money in politics we’re actually afraid of, remember this: for the 2016 election … no one was better funded than Jeb Bush. After that, it’s the same Hillary Clinton, who has had no problem tripping all over that money and — perhaps fumbling the ball directly into Bernie Sanders’ arms.  Or worse: Donald Trump’s.

I admit to being conflicted. I might be wrong. Yet, even in this case I choose to cling tightly to expansive interpretation of First Amendment rights, which includes freedom to express thoughts and freedom of press — whatever we might construe “press” to mean in this digital era. I welcome your comments, either below or via emails.

Joe Girard © 2016
joe@girardmeister.com

[1] My adaptation of the mission statement of Citizens United.

[2] Officially, there are no “buffalo” in North America. Any such animals are actually Bison. Still, terms like Buffalo Wallow are commonly used.