I Can See The First Amendment From My Front Porch: Palin's Botched Defense of Dr. Laura

Sarah Palin recently defended Dr. Laura Schlessinger after she had a sudden bout of N-word diarrhea during her radio show. After the public outcry, Schlessinger ended her radio program, but she screamed foul play, arguing that her constitutional rights were violated.

Professor Palin offered her trademark "common sense" advise to Schlessinger in a series of Twitter posts. In so doing, Palin proves, yet again, that common sense is merely an excuse for not reading.

Palin sent the following message to Schlessinger:

“Dr.Laura: don't retreat ... reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence"isn't American,not fair")"

She then posted a follow-up:

“Dr.Laura=even more powerful & effective w/out the shackles,so watch out Constitutional obstructionists. And b thankful 4 her voice, America!)"

Apparently, the Bloggacuda does not know much about the First Amendment, because Schlessinger's right to free speech remains fully intact. The First Amendment Center, a nonprofit organization devoted to free expression, has fully rebutted Palin's botched constitutional analysis. The organization also makes the interesting argument that while Palin often criticizes the government for trampling upon the Constitution, it is clear that she lacks a basic understanding of some of its central principles.

As a Professor of Constitutional Law, I could write more on this issue, but the First Amendment Center does a great job. Here is a clip from the article:

• The First Amendment protects us from the government, and not from other Americans who disagree with what we have to say. “Congress shall make no law” — the first five words of the First Amendment — say it all: No government body can limit our rights to speak out. In this case, there’s no government action, just public outrage and pressure.

• Boycotts are also protected by the First Amendment. Dr. Laura complains about being “bullied” by those who might pressure her radio affiliates or advertisers, but boycotts are a time-honored use of the First Amendment. . . .

• Efforts to punish controversial speech comes from the right and the left. It’s true that liberal organizations are attacking Dr. Laura for use of the racial epithet, just as conservative organizations burned Dixie Chicks CDs when Natalie Maines told a London audience that she was embarrassed that President Bush came from Texas. . . .

• Dr. Laura’s First Amendment rights are alive and well. Although she’s leaving her radio show, she says she’ll continue to share her views through public speaking, TV interviews, in print, online, and in a new book due in January, all made possible by the First Amendment.

So, is Palin wrong again? You betcha!

Sarah Palin's Two-Faced Arguments Regarding "Ground Zero Mosque"

The so-called Ground Zero Mosque occupied the headlines over the weekend, following President Obama's endorsement of the group's right to build the mosque. Although Obama plainly limited his comments to a discussion of religious freedom and equality, the media reported the story with a much broader sweep. According to most media reports, Obama had, in fact, endorsed the decision making behind the location of the mosque.

Yesterday, he clarified his remarks, which led to another round of botched media reporting. Now, Obama has supposedly "walked back" or "narrowed" the scope of his comments. He did no such thing.

The Bloggacuda Enters the Fray

Liberals and conservatives alike have criticized Obama's imaginary walk-back. Conservatives, however, now argue that Obama should express his opinion regarding the "wisdom" of the project. The Bloggacuda herself -- Sarah Palin -- scribbled out a Facebook entry demanding that Obama state whether mosque proponents should build the mosque near ground zero.

Palin, like other conservatives, claims that she agrees that the mosque proponents have the right to build the mosque, but she argues that they should not. She claims that building the mosque will cause religious tension, and she wants Obama to enter this thicket. This is a contradictory position.

Religious Freedom Means The Government Does Not Make Decisions For Religious Groups

Religious freedom is guaranteed by the First Amendment. The US Constitution allows mosque proponents to construct the mosque if they, as Obama stated during his speech, comply with local and state laws. Generally, it is not the role of government to tell religious individuals and organizations whether and how they should exercise their constitutional rights, particularly when, as here, the government's input could have a decisive impact.

If Obama told Palin that he respects her First Amendment right to post hate essays on Facebook, but that she should not do so because she is divisive, she would not appreciate the interference. In fact, she and her minions would probably (re)accuse Obama of being a socialist, radical, communist. Nevertheless, Palin wants Obama to comment on the wisdom of a religious group's decision to locate a mosque in lower Manhattan.

Palin has a two-faced view of constitutional liberty -- as do all of the other commentators who want Obama to go more deeply into this conflict. Religious freedom means that so long as people comply with laws of general application then the government should not interfere with their religious practices. I suspect that Palin and other opponents of the mosque would cheer a decision by local authorities to block the mosque project. This, however, does not reflect an embrace of religious freedom.

If liberals and conservatives actually support religious freedom, they must accept the building of the mosque -- regardless of whether they believe it is a good idea or not. This is all Obama said during his speech. For this, I commend him. On this issue, all sides must accept a "wall of separation between mosque and state."

UPDATE: This essay was edited for clarity.

Also on Dissenting Justice:

Media Continues to Misstate Obama's Position on Mosque (Updated)

Media Misstates Obama's Position on Mosque; Obama Clarifies Stance

Media Continues to Misstate Obama's Position on Mosque (Updated)

The back-and-forth over the so-called Ground Zero Mosque continues. Yesterday, President Obama endorsed the constitutional rights of individuals who want to build a mosque near the former site of the World Trade Center. The media, in an apparent desire for controversial headlines, reported that Obama supported building a mosque at ground zero.

Today, President Obama clarified his comments, emphasizing that he endorsed the rights of the mosque proponents and that he remained neutral regarding the wisdom of the project. This is an important distinction. Upholding the US Constitution is a duty of the President. Deciding local construction policy is not.

Now that President Obama has clarified his position, some media commentators are arguing that he is shifting or backtracking. Ben Smith of Politico offers the most egregious example of this in his blog post: Obama narrows mosque defense. Smith argues that:

The signal Obama sent with his rhetoric last night wasn't that he had chosen to make a trivial, legal point about the First Amendment. He chose to make headlines in support of the mosque project, and he won't be able to walk them back now with this sprinkling of doubt. All he'll do is frustrate some of the people who so eagerly welcomed his words yesterday as a return to form.

Signal? Rather than using subliminal messaging to decode what Obama was saying, try looking at the transcript and judge for yourself.

Smith's description of the First Amendment as "trivial" is shocking. That same legal document allows him to blog on political issues -- even if incorrectly. The speech and religion clauses of the First Amendment are very important parts of US constitutional law. It is commendable that Obama embraced these concepts for a disparaged religious community.

Finally, the notion that one could embrace a person's right to do something -- without necessarily advising that person to do anything specific -- is not complicated. For example, many people are pro-choice, even though they say they would not have an abortion themselves. Some people are atheist, but they support religious freedom (including the freedom not to believe). One can believe in the First Amendment, but also believe that the news media is becoming a worthless part of American culture. Similarly, Obama can endorse the rights of the mosque proponents, while remaining aloof to the controversy about its location.

Anyone who reads Dissenting Justice knows that this blog is a fearless critic of Obama. This, however, is not a moment to criticize him.

UPDATE: The evolving commentary on this subject brings two issues to mind. First, many leftists are upset and believe that Obama is compromising or going back on his word. During the Democratic primaries, many progressives projected leftwing values onto Obama based on things he said that, if interpreted broadly, could mean he was a progressive. Apparently, many of them have not learned to construe his words narrowly (and even then, he sometimes falls short, like all politicians).

Second, this situation looks like the Shirley Sherrod matter. Although Obama's actual words are available for all to see, people are still misreporting them.

Also on Dissenting Justice:

Sarah Palin's Two-Faced Arguments Regarding "Ground Zero Mosque"

Media Misstates Obama's Position on Mosque; Obama Clarifies Stance

Maryland Teacher Called Police to Remove Student From Class for Refusing to Recite Pledge of Allegiance

In January, a Maryland school teacher called two police officers to escort a student from her classroom because the 13-year-old exercised her constitutional rights and refused to stand and recite the Pledge of Allegiance. The student also refused to stand for the Pledge of Allegiance on the previous day of school.

The teacher's attempt to force the student to recite the Pledge of Allegiance violates the constitutional doctrine stated by the Supreme Court in the 1943 ruling West Virginia Board of Education v. Barnette. In Barnette, the Court overruled prior caselaw and held that forcing students to salute the flag and recite the Pledge of Allegiance "transcends constitutional limitations on [the school officials'] power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control" (emphasis added).

The teacher's conduct also violates state policy. A Maryland student handbook states that: "You cannot be required to say a pledge, sing an anthem, or take part in patriotic exercises. No one will be permitted to intentionally embarrass you if you choose not to participate" (emphasis added). The other students in the class mocked the defiant student as police escorted her away from the classroom.

On the first day that the student refused to recite the Pledge of Allegiance, the teacher yelled at her. Now, the teacher must apologize -- thanks to a settlement negotiated by the ACLU.

OK, Kids: Protests = Good; Disrupting Meetings, Punching People, Hurling Racial Slurs, Etc. = Bad

Just added: Sarah Palin Is Latest Heartless Person to Attack Protestors.

I want to have a heart-to-heart conversation with the Left and the Right. Last week was truly one of those moments when shocking behavior by others made me feel like I was stuck in some horrific episode of the Twilight Zone (the ones where some unsuspecting person suddenly loses the ability to communicate with others).

The spooky feeling resulted from the headline story of the week: The, um, passionate behavior occurring at various healthcare reform forums. I blogged about the highly unsatisfactory nature of the public discourse even before the Tampa/St.Louis outbursts occurred. The same day, the Pew Center released a study demonstrating that 70% of the public believed that media coverage was poor or fair. That night, "the people" took to the streets in Tampa and St. Louis.

The Messy Details
The news from Tampa, Florida (my home state) emerged first. Apparently, opponents of the Democrats' healthcare proposals, many of whom are conservative, stormed a townhall meeting conducted by Representative Kathy Castor, a Democrat. As soon as she started speaking, protestors shouted and made it impossible for others to hear what she was saying.

Responding to my harsh criticism of the circus, several of my loyal conservative readers defended the protestors on free speech grounds. Today, the immensely popular and very open-minded Glenn Reynolds (of Instapundit), mockingly reminded commentators that "protest" was a form of patriotism, a line often employed by anti-war activists to justify their protests against charges of treason and demands that they "support the troops."

News from St. Louis arrived later (much of it after I had analyzed the Tampa mayhem). Apparently, Democratic operatives and Democratic voters sparked much of the madness in St. Louis. In response to the anticipated presence of conservative protestors, liberals mobilized and brought out their supporters. During the meltdown, a black conservative was assaulted. Liberal media have not really covered this aspect of the event, although though they have portrayed conservative protestors as racists. And while many conservatives have used the racial assault in St. Louis to stigmatize liberals, a lot of these same commentators very recently decried "race cards" and vigorously dismissed allegations of racism by blacks themselves as nonsense and as continued victimology.

Hello, Kids. Today's Lesson Is. . . .
Since people are acting like kids and because I feel that meeting them on their own terms is probably more helpful, I will break things down in mental-age appropriate language for both liberals and conservatives.

1. Racism = Wrong. Racism is a pathology. Nevertheless, our society has denied its existence or the harms it causes even during slavery and Jim Crow (see Racial Exhaustion). But current events demonstrate that it persists.

Being liberal does not excuse a person of his or her racism, nor does it mean that other liberals should refrain from criticizing the person. In addition, being conservative does not mean that it is fine only to acknowledge or see racism when it impacts conservative people of color. If liberal racism exists (which it does), then so does conservative racism. Condemn it on all sides and assist, rather than impede, causes that seek to rid the country of racism and racial inequality.

2. Protest = Good; Disruptive Behavior and Violence = Bad. The First Amendment guarantees the right of individuals to engage in speech and to come together for expressive purposes. And while this includes a right to engage in boisterous speech, the constitutional guarantee of free speech is not absolute. Instead, so long as the government is not attempting to alter the content of speech, it can nonetheless regulate the "time, manner and place" of the speech (that takes place in a public forum).

Making governmental venues or other public spaces available for a townhall discussion is not the same thing as permitting groups to hold marches, parades, rallies, carnivals or other expressive activities. The townhall discussion requires a back-and-forth between participants. This can only occur when participants listen while others are speaking. This is not what the conservative protestors did in Tampa. This is not what liberals did in St. Louis. Both sides were wrong.

Commentators who attempt to justify the protestors' disruptive behavior by calling it "speech" are missing the point. Yes -- the protestors were engaging in speech, but their speech silenced the expression of others. The Constitution does not give us a private right to silence participants in a public political debate.

I have always been consistent on this issue. In fact, unlike many liberal bloggers, I never condemned the "tea party" movement. Granted, I found the groups' protests peculiar because their sudden concern for fiscal soundness seemed unprincipled -- or as Ron Paul would say, it made them look like "born-again fiscal conservatives." Nevertheless, the tea party protestors have the right to organize, mobilize, protest and criticize fiscal policy -- even in a way that is unprincipled -- until they collapse from exhaustion. The protests, however, were self-contained; they took place in locations where they did not silence the speech of others; the groups did not seem to break any laws with their activities. Rather than flooding local government and shouting down proceedings, they staged their rallies in appropriate venues and brought public attention to their cause. That is a model of advocacy. I do not agree with the advocacy, but the form in which it occurred is sound! The healthcare protestors used a different and unacceptable model.

Final Thoughts
I invite people to toss aside partisanship for a moment and actually begin the process of having a real discussion about healthcare reform. Due to lack of space, I will not delve deeply into the substantive issues of healthcare reform, but I will isolate two things that bother me on the Left and the Right.

First, when conservatives condemn the Democratic plans as "socialism," they are making a "nonargument." First, the assertion is purely descriptive -- and, given the definition of socialism espoused by people like, say, Karl Marx, the description is grossly inapplicable to this setting. Even if the liberal reform amounted to a "socialist" policy, this alone does not tell us whether the plan is desirable or not. Conservatives could replace the word socialist with "crazy," "zany," "liberal," "bad," "harmful," or "nasty," but these adjectives do not provide details. Instead, they simply seek to stigmatize the plans.

Second, to my fellow liberals, I share the opinion of those of you who want a public plan option (this is not the same as a "single payer" regime that eliminates private insurance altogether). The public plan option would likely reduce costs. I have not seen any reliable literature that disputes this. In fact, much of the conservative opposition to new public sponsorship assumes that a public plan would reduce costs and make private insurance nonviable.

Although I believe that conservatives are overstating their position, there are other implications of a public plan that warrant debate. In particular, the mix of services under a public plan seems highly relevant to these talks, but liberals do not want to engage this issue. Part of the cost reduction under a public plan would result from the government using its power to negotiate cheaper care from providers. Cost reductions will also occur if uninsured people begin to receive preventive care and, rather than obtaining expensive emergency room treatment of their illnesses, visit a primary care physician who can attend to their health needs.

Some of the cost reductions, however, could (and perhaps should) involve a changed mix in covered services. Congress could diminish this tradeoff potentially if it reduced its enormous subsidization of employer-sponsored (supposedly "private") plans. Nevertheless, the mix of services subject to governmental financing seems like a legitimate subject for these debates. Liberals have run from this issue, but evading an issue by running is as unhelpful as evading it by yelling. Liberals have also neglected to get input from nurses, who could play a much larger (and less expensive) role in the delivery of health care.

Here's hoping for a better week.

Cutting Through the Rhetoric Regarding Hate Crimes Legislation

The House of Representatives recently passed H.R. 1913 -- "The Local Law Enforcement Hate Crimes Prevention Act of 2009." Now, this bill and a similar measure ("The Matthew Shepard Hate Crimes Prevention Act") are currently pending in the Senate. The proposed legislation has triggered partisan support and opposition. The House measure, for example, passed by a vote of 249-175. Only 18 Republicans supported it.

The American Thinker has published an essay that condemns the proposed measures. The article, written by John Griffing, makes many familiar arguments, including that the proposed law would violate freedom of expression. Griffing's article, however, contains many distortions that greatly undermine his analysis.

Freedom of Speech
Griffing argues that, if passed, the hate crimes measure would violate the First Amendment, and he likens the proposed law to the notorious Sedition Act of 1789, which made it a crime to "write, print, utter or publish" material criticizing the President, Congress or the United States. The proposed legislation, however, provides no support for Griffing's claim.

The measure that recently passed in the House, for example, would create federal criminal liability when a person "willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person" due to the "actual or perceived race, color, religion, or national origin of any person" or "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person." The proposed statute also contains language stating that its terms shall not "be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution."

As the Supreme Court held in the 1993 Wisconsin v. Mitchell decision, laws that prohibit acts of bias-motivated violence generally do not violate the First Amendment. The Court's unanimous opinion, authored by staunch conservative Chief Justice Rehnquist, concluded that Wisconsin's hate crimes statute did not impermissibly punish speech or thought because the measure reflected the state's finding that bias-motivated crimes "inflict greater individual and societal harm" than ordinary violent crimes. The Court also analogized the hate crimes statute to federal employment discrimination laws, which had already survived a First Amendment challenge.

The Court's second observation is worthy of elaboration. Consider the following hypothetical scenarios. One year, a company refuses to give any employee a pay raise due to financial constraints. Unless the decision violates an employee contractual provision, then it likely constitutes an unassailable business decision.

Suppose, instead, that the same company refuses to give any employee a pay raise because only white workers passed a performance test that the company used to determine who would qualify for the salary increase. Without additional information, most people would not believe that the second scenario constitutes a legitimate business decision shielded by the First Amendment. Instead, as conservatives have passionately argued with respect to Ricci v. DeStefano, the racially motivated employment decision might violate federal antidiscrimination laws. Racial motivation, however, is the only factor that separates the two hypothetical scenarios and that transforms an ordinary business decision into a violation of federal law. If conservatives truly believe laws that punish behavior motivated by discriminatory ideas or thoughts violate the Constitution, then they should withdraw their objections to Ricci and to affirmative action.

The government's interest in preventing the prohibited conduct seems even more compelling in the hate crimes context than in the employment situation. Stripped of biased motivation, the underlying decision in the employment setting is generally lawful. The removal of bias in the hate crimes scenario, however, does not render the underlying behavior legitimate. Indiscriminate acts of arson, gun violence, and fire bombings, for example, usually lack a legitimate purpose and are likely illegal.

This distinction also reveals the fundamental flaw in Griffing's effort to analogize hate crimes legislation to the Sedition Act of 1789. The Federalist Party passed the Sedition Act in order to punish Democratic-Republicans and political commentators who criticized the Adams administration in writings and speeches. Political speech is a core interest of the First Amendment.

The First Amendment, however, offers no protection for a person who tosses a bomb into a black church or a synagogue -- even if the perpetrator acts upon strongly held political beliefs. Similarly, the First Amendment would not shield an individual from prosecution if he or she, acting on political ideology, commandeers an airplane and crashes it into a national monument. Thus, if the proposed measure ultimately becomes law, the Fred Phelps congregation could still march across the country spreading the "good news" that "God hates fags." Church members, however, could not seek solace in the First Amendment if their own hatred of "fags" led them to inflict bodily injury upon GLBT people.

Special Protection
Finally, Gillings makes the factually inaccurate claim that the hate crimes measure would create "special" rights for "homosexuals." Gillings argues that: "The legislation contains provisions that will increase the penalties for acts committed against certain protected groups . . . and giv[e] special legal stature to homosexuals and those with sexually-related "disabilities" (Apparently, Gillings has misread the proposal as regulating violence motivated by the victims' "sexually-related disabilities" rather than "disability").

Gillings's argument fails in two important respects. First, Gilling describes remedies for particular societal harms as unfair "special" advantages. This is an inaccurate characterization of the law. The Constitution, for example, protects the "free exercise" of religion because the country emerged out of a particular history of religious intolerance in England -- not because the Framers wanted to give religious people "special" advantages.

Gilling's special rights argument also fails because the proposed measure is drafted neutrally and would apply to any person with a "sexual orientation," race, "gender," etc. The religious freedom analogy helps here as well. Religious freedom protects the atheist and the believer. Similarly, the neutrally drafted hate crimes legislation would protect whites and persons of color, men and women, GLBT people and heterosexuals, etc. In fact, the Mitchell decision discussed above applied the Wisconsin hate crimes statute to a black-on-white racial hate crime.

Conclusion
Even though I tend to support hate crimes measures, I am doubtful that they deter the prohibited offenses. But, as conservatives often remind us, the criminal law metes out punishment in addition to deterring offenses. I am primarily supportive of these laws because they allow the government to make an important statement about the nation's values, which I suspect many Americans believe should include disapproval of all forms of violence, including hate crimes.

In the abortion context, conservatives have argued -- and the Supreme Court has agreed -- that Roe v. Wade does not prohibit states or the federal government from passing laws that express a preference for "childbirth" over "abortion" (e.g., by denying funds for abortion-related services and requiring mandatory waiting-periods and the distribution of information intended to encourage women not to have abortions). Given this precedent, the proposed legislation does not strike me as being constitutionally impermissible or aberrational.

Selling Obama

According to Bloomberg.com, President Obama has directed White House attorneys to construct a plan to prevent the unauthorized usage of his image. Such a plan could encounter difficulties under a First Amendment analysis, as public figures receive less protection of their privacy and images.

The plan could also prove difficult from a cultural standpoint. Obama ran his campaign as the tech-savvy candidate. He made tremendous usage of the Internet to raise money and to spread his name and image around the world. Youthful supporters from Wil.I.Am. to Obama Girl invoked his name and image to his (and their own) benefit. Now, as president, Obama delivers weekly Youtube addresses, has reworked WhiteHouse.Gov to fit his own style, and apparently cannot relinquish possession of his Blackberry, despite the possibility that the public might have the right to access his communications.

The print and broadcast media have shamelessly marketed Obama. Virtually every magazine has displayed him or some other person of his immediate family on their covers multiple times. And many of the major newspapers sold "special" inaugural editions to rake in the dough (no - they were not being sentimental).

Big industry does not have a monopoly over Obamericalism. Local and independent vendors have marketed Obama t-shirts, posters, and other products.

With so many Obama-related products already available for public consumption and with Obama marketing himself as a global icon, White House lawyers will likely have a difficult time reining in the unauthorized usage of the president's likeness, even if they can devise a constitutional plan. And given the extent to which the proliferation of Obama's image helped his candidacy, the proposal to control its use seems inconsistent with past practice.

Question: After Obama authorized the DNC to put his smiling face on "commemorative coffee mugs" in order to raise money, why stop now?