A Chance To Poke Rev. Fred Phelps in the Eye

A Chance To Poke Rev. Fred Phelps in the Eye

You may recall that the Rev. Fred Phelps, who runs the Westboro Baptist Church in Kansas, decided that showing up to picket the funerals of gay people wasn't sufficiently annoying, so he started picketing the funerals of soldiers. His claim is that 9/11 is God's punishment of America for allowing homosexuality.

A number of states has passed laws setting limits on how close such protesters can get to a funeral. I don't have a problem with such laws at all. The father of Lance Corporal Matthew A. Snyder filed a civil suit against Phelps and his band of crazies for emotional suffering caused by their incredibly offensive signs. At trial, Mr. Snyder won his claim for damages--but predictably enough, the U.S. Court of Appeals decided that this was protected freedom of speech--and stuck Mr. Snyder with a more than $5000 bill for legal fees.

I find this argument utterly specious. As I have repeatedly discussed, the nearly anything goes notion of "freedom of speech" that the ACLU has largely managed to get the courts to buy into is not originalist. It is a curious mixture of the post-Sedition Act broad view of freedom of speech that was not generally held in 1791, with liberalism's current enthusiasm for the notion that almost anything is okay: virtual child pornography, for example. (But, at times, not political speech, if said by a business--one category of speech that in 1791 would have been generally recognized as protected.)

You can help Mr. Snyder by making a contribution here. I've already made a modest contribution. If 20% of my regular readers kick in $10, we'll be well on our way to wiping out this debt. I'm not sure what to do about the bigger problem of the Supreme Court's often bizarre misreading of history.

New PajamasMedia Article

New PajamasMedia Article

On Citizens United and corporate free speech.

I'm Impressed

I'm Impressed

The same crowd that is full of defenses and excuses for why the First Amendment protects virtual child pornography, flag burning, live sex shows, is all upset that it also protects political speech! Wow! What a stretch! Who would have ever guessed that the Framers intended it to protect political speech!

First Amendment Protection For Sexually Graphic Materials

First Amendment Protection For Sexually Graphic Materials

I've been trying to track down the first case where anyone made the argument that the First Amendment protected sexually explicit materials. As near as I can tell, it is Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). Even this case barely does so.

The post office at the time extended second class mailing privileges to magazines that were "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers." In short, strictly advertising flyers had to be sent fourth class--the second class mail rate was to promote something that has a value above the strictly commercial.

Esquire magazine was denied the second class mailing rate because it had a lot of

smoking-room type of humor, featuring, in the main, sex. Some witnesses found the challenged items highly objectionable, calling them salacious and indecent. Others thought they were only racy and risque. Some condemned them as being merely in poor taste. Other witnesses could find no objection to them.

I suspect that these days, the objectionable materials would be too tame to put on television. The government did not claim that Esquire qualified as obscene; that would have made it unmailable. More importantly, it would have been outside the protections of the First Amendment, which has never been considered to protect obscene material. Justice Douglas wrote the opinion arguing that for materials that were not obscene, the government had an obligation to give equal protection of the law.

It is amazing how rapidly our understanding of the First Amendment's protections of freedom of the press has changed--from arguing whether somewhat salacious materials enjoyed the same right to a governmental subsidy as National Geographic, and upholding a state law that punished racists for libeling a race, as happened in Beauharnais v. Illinois, 343 U.S. 250 (1952), to finding that because some virtual child pornography might have "serious literary, artistic, political, or scientific value" the statute prohibiting it was unconstitutional.

UPDATE: I should explain that the late attempt at arguing that sexually explicit materials are constitutionally protected is in stark contrast to early points of view. There are constitutional commentaries by William Rawle and Joseph Story that are quite clear that the freedom of the press is a guarantee of no prior restraint. Similarly, with later Associate Justice James Wilson's comments about freedom of the press and libel during the ratification debate in Pennsylvania [Elliot’s Debates, 2:449]. Rawle's treatment is a bit more crisp:

But the liberty of speech and of the press may be abused, and so may every human institution. It is not, however, to be supposed that it may be abused with impunity. Remedies will always be found while the protection of individual rights and the reasonable safeguards of society itself form parts of the principles of our government. A previous superintendency of the press, an arbitrary power to direct or prohibit its publications are withheld, but the punishment of dangerous or offensive publications, which on a fair and impartial trial are found to have a pernicious tendency, is necessary for the peace and order of government and religion, which are the solid foundations of civil liberty. [William Rawle, A View of the Constitution, 2nd ed. (Philadelphia: Philip H. Nicklin, 1829), 123-4.]

You could be punished after the fact for what William Blackstone characterized as "improper, mischievous, or illegal" speech, and until the Sedition Act of 1798, there didn't seem to be much argument about that. The Sedition Act was fundamentally constitutional; it punished only "false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States...." The problem was that Federalist judges and juries punished mere opinion, skipping over the requirement that a statement be "false." Still, in the digging that I have done, I have yet to find any of the seeming absolutists of the post-Sedition Act period arguing that sexually graphic materials were protected free speech. The focus is on political speech.

What impresses me is how even a lawyer defending a person charged with blasphemy in 1834 Boston admitted that "grossly indecent pictures and descriptions" did not enjoy the protection of the First Amendment. Andrew Dunlap did not even try to argue that freedom of the press protected his client's publications; instead, he argued that the First Amendment's protection of religious beliefs (and the analog in the Massachusetts Constitution) overrode a blasphemy law. He never argued that freedom of the press protected blasphemous publications.

Next Time, Use Spray Paint

Next Time, Use Spray Paint

They won't put so much energy into finding you. From the August 13, 2009 Orlando Sentinel:

CLERMONT - Clermont police have interviewed one suspect who is admitting to putting up the dozens of posters pasted around the city depicting President Obama as the Joker character from the Batman film The Dark Knight, city officials confirmed.

Assistant City Manager Darren Gray said city officials have an individual "admitting to putting up 500" of the posters.

Clermont Police Capt. Eric Jensen said the male individual has admitted to putting up some signs, but investigators suspect others were involved and their investigation is continuing.

"We have talked to an individual," Jensen said. "He only admitted to some of it...We're still tracking down leads and talking to folks. We have not arrested anybody."

At this point officials are not sure how much damage was caused by the signs or the dollar amount associated with the clean-up.

Dozens of the posters were pasted around the city earlier this week. A pair of the posters were pasted to a Clermont Post Office collection box. They prompted the postmaster to contact the Postal Inspector's office, which is looking at potential federal crimes for defacing federal property.

City officials, meanwhile, are trying to determine what local crimes might be associated with the posting of the images on public and private properties. They've also been busy ripping down the sticky signs because they're a violation of city ordinance regarding illegal signs.

Yes, this is illegal. But if they had been spray painting gang tags, instead of a funny, but not terribly thoughtful attack on Obama, would there have been an "investigation"? Of course not. Unless the police actually caught someone in the act, it would have been ignored.

Now, I don't think much of this poster as political commentary. (As humor, it is quite well done.) But you could make a case that putting up these posters is a form of protected free speech--at least as much as burning an American flag. I'm not expecting the ACLU to come to the defense of these jokers putting up these Jokers, however.

The Arab Festival in Dearborn

The Arab Festival in Dearborn

I mentioned the struggle over free speech. Here's a YouTube video of what happened when the thugs in charge decided that they didn't want a street festival filmed.

I'm Used To Christians Not Being Allow To Proselytize in Muslim Countries

I'm Used To Christians Not Being Allow To Proselytize in Muslim Countries

I'm just not used to it being in the United States. From the June 18, 2009 San Jose Mercury-News:

DETROIT — A federal judge today denied an evangelical Christian group's request for permission to hand out literature on sidewalks at an Arab festival in the heart of the Detroit area's Middle Eastern community.

U.S. District Judge Nancy Edmunds denied Anaheim, Calif.-based Arabic Christian Perspective's request for a temporary restraining order.

The group describes itself in its court filing as "a national ministry established for the purpose of proclaiming the Holy Gospel of Jesus Christ to Muslims ... (that) travels around the country attending and distributing Christian literature at Muslim festivals and mosques."

A lawyer for the group said it would seek a permanent injunction against the city of Dearborn.

"It's not over," said Robert J. Muise of the Thomas More Law Center, an Ann Arbor-based Christian rights advocacy group.

Another lawyer on the case said the Dearborn officials action could be part of what he described as a broader Muslim legal attack on critics of Islam in our "Judeo-Christian nation."

"Muslims are using the courts in this country to stop our free speech rights," said William J. Becker Jr., a Los Angeles attorney who has represented a number of prominent critics of Islam.

The 14th annual Dearborn Arab International Festival is expected to draw hundreds of thousands of visitors Friday through Sunday to the city that has the Detroit area's greatest concentration of Arab-Americans.

Wow. How many parts of the First Amendment can this judge violate at once?

1. Public streets can't be used for a protected form of free speech.

2. And this is a violation of the freedom of religious exercise clause, since proselytizing is a fundamental part of the Christian faith.

3. And arguably a violation of religious establishment clause, since it would appear that there is a distinct penalty assessed against a particular religion.

And what makes this especially silly is that even by progressive notions of not offending, this doesn't make sense. A lot of Arab-Americans are Christians; that's one of the reasons that a lot of them came here. I have attended church with Arab-Americans in the past, and I know that they aren't particularly unique.

UPDATE: Professor Volokh in email points out that the restrictions in question are content-neutral; at this point, there is no evidence that Christians are being especially disfavored. I confess that I am a bit sensitive on this subject, simply because Islam is favored by the left (because they have imagined that Bush was making war on Islam), and Christianity an especially disfavored religion for the left (because we won't get with the program on homosexuality, abortion, and Gaea worship).

And while it is true that prohibiting leafleting does not preclude other available means of expressing an opinion--it is also true that the ACLU doesn't seem to ever recognize the validity of this approach when it comes to something like virtual child pornography, where they argued that because the law was overbroad, and therefore might apply to some serious artistic works, that therefore the law was unconstitutional. (There were no alternatives in making a film that wouldn't run afoul of the law?) I mean, you don't have to burn a flag to express your opinion, do you? According to the ACLU, alternate means of expressing an opinion just aren't adequate. (Except, of course, when wearing a T-shirt might offend homosexuals--then you have to shut up--at least, according to Judge Stephen Reinhardt, who is married to the ACLU of Southern California's director.)

I also find the notion that leafleting can be forbidden because of crowd control issues--but going out into the crowd to talk to people isn't--is absurd. Go into a crowd and start talking to people about something as emotional as religion, and I suspect that it is going to produce some pretty heated discussions--which will slow the flow of traffic. Leaflets, on the other hand, get stuffed into a pocket, producing no real change in traffic flow.

This street festival is supposedly different from a public street because there's some sort of public event being carried on. Somehow, I'm hard pressed to see how this makes it equivalent to a courthouse, a legislative body, a jail, or one of the other places where government is ordinarily granted additional power to restrict speech because they are performing a landlord function. Considering that the Supreme Court ruled in the Pruneyard decision that a private property owner may not exclude persons gathering signatures in a shopping center, because this is a form of public forum, it is hard to see how the government has authority to prohibit leafleting on public streets.

The Liberals Are Promoting Totalitarianism Again

The Liberals Are Promoting Totalitarianism Again

Over at CBS's web site, this op-ed piece by Bonnie Erbe (who has her own show on PBS, apparently), calling for locking up people before they commit crimes because they don't share liberal values:

Three incidents and counting.

If yesterday's Holocaust Museum slaying of security guard and national hero Stephen Tyrone Johns is not a clarion call for banning hate speech, I don't know what is. Playwright Janet Langhart Cohen appeared on CNN yesterday right after the shooting, as she wrote a play that was supposed to have been debuted at the Holocaust Museum last night. Her play is about Emmett Till, whose lynching helped launch the Civil Rights Movement, and Ann Frank, whose diary told the story of Holocaust victims in hiding in the Netherlands during World War II.

She said something must be done about ridding the Internet and the public dialogue of hate speech. I agree. Not only have we had three hate crime murders within the last two weeks (Mr. Johns, as noted above, Dr. George Tiller a week ago last Sunday, and Pvt. William Andrew Long by an American-born Muslim convert outside a recruiting station just before that.)

...

It's not enough to prosecute these murders as murders. They are hate-motivated crimes and each of these men had been under some sort of police surveillance prior to their actions. Isn't it time we started rounding up promoters of hate before they kill?

No surprise; liberals are always looking for an excuse to send people to re-education camps. It's a good thing for liberals that conservatives don't have that same liberal instinct.

Count On Liberals To Suppress Political Speech

Count On Liberals To Suppress Political Speech

From the May 29, 2009 Inside Higher Education:

Late last month, Brashier, a student at the Community College of Allegheny County, in Pennsylvania, created a three-page flier highlighting information about Students for Concealed Carry on Campus, a national gun-rights group with more than 38,000 members in chapters at college campuses across the country. The literature indicated that Brashier intended to form a chapter of the organization at Allegheny, and it included space for interested students to provide their contact information.
According to Brashier, she was called into the dean’s office on April 24 to discuss the brochures. Brashier said she was told that pamphlet distribution constituted solicitation, which is prohibited on the Allegheny campus.
“I retorted that it was not solicitation due to the fact that I am not attempting to ‘sell’ anything, and you answered that it was solicitation because I was trying to sell people on the idea of this organization,” Brashier wrote in her letter to the two deans of student development. “I answered that getting people to register to vote, or sign a petition would not be solicitation and you told me that this would also not be allowed on campus but only out on the street in front of the campus.”
Brashier said the deans also asked whether she owned a gun – to which Brashier replied that she does, but would not bring it on campus until the law barring weapons on campus is changed, as she believes it should be. The deans, Brashier said, stressed how it could be a “disaster” for the college to allow students to have guns on campus, and asked if she had considered alternative means of self defense. Brashier also reported that Dean Yvonne Burns told her the issue of guns on campus might be something Brashier wants to discuss, but it is not something the college wants to discuss. Finally, Brashier reported that Burns instructed her to cease all activities related to bringing Students for Concealed Carry on Campus to Allegheny.

I never cease to be amazed at how liberals are so willing to ignore the First Amendment's guarantee of freedom of speech when it doesn't fit with their narrow worldview. Higher education today is among the most intolerant and fascist of all parts of American society, doubtless because liberals so utterly control it.

Chris Pentico's Sentencing

Chris Pentico's Sentencing

I showed up at the courthouse--and found a sign on the second floor, where Judge Swain's courtroom is, announcing that the Chris Pentico sentencing had been moved to courtroom 504. I suspect that they moved the sentencing because of the anticipated crowd--and it was a crowd. There wasn't a seat free, and the aisles were filled with folding chairs and standing people. I noticed Dan Popkey of the Idaho Statesman present, taking notes.

Rep. Pete Nielsen (R-ID) testified in mitigation of the sentence. (Essentially, arguing why the sentence should be light.) One of the claims made by the prosecution was that the governor's staff had asked to have Pentico banned. Nielsen testified that when he first heard about this ban, he contacted both Captain Rogers, of the capitol security detail of the state police, and Clete Edmondsen of the governor's office. Rogers at first didn't know who gave the order, and Edmondsen claimed to know nothing of it. (I believe that Nielsen passed this word back to Pentico at some point, which would at least give Pentico reason to be unsure if he was banned or not.) Later, Captain Rogers got back to Nielsen, and told Nielsen that Edmondsen had ordered Pentico's ban.

Nielsen also testified that in the almost four years that he had known Pentico, through Elmore County Republican Party activities, and at the legislature, he had never known Pentico to be anything but honest and polite in his dealings with others. Nielsen also turned over a letter to the judge to this effect signed by a number of other members of the legislature. (And remember: one of the original reasons for banning Pentico was that he made members of the legislature "nervous.") I don't know how many other members signed that letter, but I don't get the impression that it was more than a couple.

The prosecutor claimed that the reason Pentico was banned was that had repeatedly harassed staff in the Board of Education offices, and requested that Pentico be given a $500 fine ($300 suspended), 90 days in jail (85 days suspended), and a no-contact order with the governor's office, Idaho department of education, and a couple of other branches of the government, for some significant period of time. (I don't have the period in my notes, but I think it might have been two years.)

Pentico's attorney, Derr, is pretty old--beginning to get the shakes associated with Parkinson's. His statement wasn't spectacularly well delivered, and at one point, he called a witness out of the crowd, Wayne Hoffman of the Idaho Freedom Foundation, who had apparently worked at the Board of Education during the time Pentico was supposedly harassing staff (although he was never arrested or ordered to leave the premises during that period). After a few words between them, Derr changed his mind. Derr should have talked to Hoffman first before calling him as a witness, I think.

Where Derr did best was point out that the statute prohibiting trespass requires you to be told to leave and not return--and when Officer Pattis claims that he told Pentico that there were places that he was not welcome, and was not to return, these were not places that he had been at that day, and was not at them at the time of notice. More importantly and more eloquently, Derr asked if any officer could tell any citizen they can only exercise their First Amendment rights in writing, or with a police escort to and from a government office? There's an obvious chilling effect when you have to give 48 hours notice to the police that you wish to deliver a complaint to a government official. (This was the circumstances under which Officer Pattis says he told Pentico that he could hand deliver complaints to the governor's office.)

Judge Swain argued that the statute under which Pentico was convicted is defective, in that it treats both public and private property the same, but that he was obligated to "apply the laws to the facts." He also acknowledged that there was a First Amendment conflict in a situation like this--which suggests to me that he didn't read the Korsen decision as carefully (or perhaps as broadly) as I did. He did acknowledge that Pentico's conduct, assuming all the facts that he obviously believed to convict him, constituted a de minimis violation of the statute. Because of "the unusual facts of the case," such as Pentico's community standing, lack of criminal history, indeed, lack of any evidence of dangerousness, "no jail time" "no fine" "no court costs" and "no no-contact order." All of this was a withheld judgment for thirty days. If Pentico can stay out of trouble for that period of time, the conviction disappears.

I don't know if Judge Swain was influenced by the large crowd of well behaved people that showed up to make sure that justice was done. In one sense, I would hope that Swain was not influenced. Justice shouldn't be determined by popular sentiment. On the other hand, if there's something fishy about a case, and a defendant has this much of the public concerned about it, maybe it should influence a judge to rethink his position.

Clearly, Judge Swain was putting it back on the legislature to fix what he acknowledged was a defective statute. I approached Rep. Nielsen after adjournment, and indicated that he needs to introduce a bill next session to fix this. He agreed, and asked me to suggest some language. I told him I would think about it for a few days, and do so.

Pretty clearly, there are circumstances where it is appropriate to exclude someone from governmental offices. But those circumstances need to be pretty extreme--not just to make government officials and their employees comfortable. I would suggest that requiring a judge to issue a restraining order should be the first step, or perhaps the second step--something that provides for due process, and an impartial observer to decide whether a citizen's legitimate reason to enter public parts of government offices is exceeded by the legitimate needs of government to operate without intimidation or physical danger. Any ideas that you have: let me know.

UPDATE: Dan Popkey's article about the sentencing hearing was mostly correct, but what was left out is no surprise, consider Popkey's political leanings. The comments by the liberals that dominate the Idaho Statesman's comment board are unsurprising: lots of personal insults to Pentico, and general contempt for the First Amendment right of free speech and right to petition government officials for redress of grievances. If you aren't engaged in nude dancing, Idaho liberals aren't big on those protections.

Chris Pentico & The First Amendment

Chris Pentico & The First Amendment

I mentioned several weeks ago that an acquaintance had been convicted of trespassing for dropping off a letter complaining of what he considers unlawful activity by Boise State University with respect to funding of student clubs. I now have the transcripts of the trial and pre-trial hearings. The trial itself is astonishingly uninteresting, except for the March 25, 2008 incident in which Officer Pattis told Pentico that he was not welcome in state government buildings. If you believe Pattis, he was orally warned that he would be arrested for trespassing. If you believe Pentico, he was told that he wasn't welcome. There was no written warning to Pentico. From the cross-examination by Pentico's attorney of Officer Pattis, on p. 25:

BY MR. DERR:
Q You did not provide any written orders to Mr. Pentico on March 25, did you?
A No, sir. I did not.
Q Nor any other statements, except what you’ve testified to, I mean as far as trespassing and coming back, not welcome?
A Not to -- not that I remember, sir.

In a criminal case (as this is), there's a requirement for a guilt beyond a reasonable doubt--and whether Mr. Pentico was formally warned that he would subject to arrest if he returned to the state office buildings seems to be Officer Pattis's word versus Chris Pentico's word. While there was a recording of Pentico's arrest on April 2--the only recording of what happened March 25, when Pattis claims to have to told Pentico that he was subject to arrest if he returned, seems to have some problems. From p. 32 of the trial transcript, is this exchange between the prosecutor (Wallace) the defense attorney (Derr), and Judge Swain:

MR. DERR: Well I’m looking for a tape, a video, that I wanted to show of 3/25.

THE COURT: Does state have it?

MS. WALLACE: Well, Your Honor, we previously disclosed a tape from 3/25. There’s no audio on it and it’s an encrypted CD that doesn’t play, and that’s previously been disclosed. Mr. Derr called me about it yesterday and mentioned that it doesn’t play well, and it just doesn’t play well. That’s what we’ve disclosed and we gave what we had.

THE COURT: Alright. Well there we go. Ball’s in your court, Mr. Derr.

(Off-record colloquy of defendant’s counsel)

MR. DERR: I don’t know how to run this machine.

THE COURT: Well Mr. Derr, I’ll tell you what I tell all the young lawyers that come before me to practice. Presentation of evidence is the responsibility of the proponent of the evidence. We’ll give you a little time to figure it out and then we’ll -- do you if it -- will it even play?

It appears from the rest of the transcript that Derr never got it to play--and if this audio confirmed Officer Pattis's claim about the March 25th conversation, you would have expected the prosecution to have played it, because it would have demonstrated that Pentico had been warned not to return, at risk of arrest. Whether Pentico knowingly violated the law hinges entirely on whether he was warned that he was risking arrest for a crime if he returned--and all the state is Pattis's word vs. Pentico's word.

More troubling is that the judge had ruled in pretrial motions that no First Amendment challenge to the charge would be allowed. From the April 20 pretrial motion, pp. 4-6:

THE COURT: Well I’m concerned about the late disclosure, but I’m also concerned about the proffered testimony in your motion which states that Mr. Parker will be a character witness, and knows among other things, of his valuable and extensive activities in First Amendment matters, which is specifically not relevant to this trial, Mr. Derr. That’s a legal question, and I’ve already ruled. We’re not going to have testimony about Mr. Pentico’s actions were justified under the First Amendment.

MR. DERR: I see. And of course, the Court understands we’ve argued that before. We think that’s the basic element of this case.

THE COURT: Well Mr. Derr, I’m very concerned. You don’t have to agree with my ruling --

MR. DERR: I know.

THE COURT: -- but you do have to follow it. You can appeal, but we’re not going to have testimony about the First Amendment in this trial. There are only two issues here. One is whether Mr. Pentico was properly advised that he could not be present on certain specified locations, and number two, was he present, physically, on certain specified locations. The state is not going to be allowed to present testimony about why he was excluded. On the other hand, Mr. Pentico is not going to be allowed to present testimony regarding the content of his communication or assert that it’s protected by the First Amendment. That’s a legal question and I’ve ruled. I don’t see that based on your motion, Mr. Parker has character testimony of a pertinent nature to the trial, that in combination with the late disclosure, I’m going to grant the state’s objection. Mr. Parker will not be allowed to testify.

And yet being able to petition for redress of grievances is a fundamental human right, recognized by the First Amendment. The testimony of the Claudia Nally, under direct examination by the prosecutor, is pretty clear about Pentico's behavior at the time he dropped off the letter on April 2, pp. 27-29 of the trial transcript:

Q And do you recall -- well, you must get to know people pretty well working in that office. People coming and going. Are you familiar with a man by the name of Christopher Pentico?

A Yes. I am.

Q And how do you know that person?

A He has been in the office, to the best of my recollection, five or six different times, not necessarily at this location, but at the Capitol building also.

Q Okay. And back in -- in March and April of 2008, did you receive information that he wasn’t welcome anymore?

A I did, actually.

Q And after you received that information, did you see him again?

A I did, actually. He came in on April 2nd and dropped off a letter.

Q Okay. And when you say April 2nd, was that April 2nd of 2008?

A 2008. Mm-hmm.

Q And tell us about when he came in.

A He -- he just came through the front door and I was actually kind of surprised to see him, and he came in and said he had a letter he’d like to drop off. And I said I’d take the letter. And he left it on my desk and then he went out the door.

Oddly enough, even though there seems to have been some claim that Pentico was harassing people working there--there was no testimony at trial about this, and it seems that the judge had decided not to allow it--and yet this would seem to be the only legitimate basis for denying Pentico his First Amendment right to go into government buildings, and leave a letter complaining about improper governmental actions.

Now, Mr. Pentico is a somewhat intense person--but no more intense than I am. He's not someone that anyone would have much reason to fear--he's not 6'4" with bulging muscles. He's fairly slight of build. To deny someone their First Amendment rights should require some pretty strong evidence--but the judge seems to have decided that it was irrelevant to the question. It's unfortunate that the ACLU here isn't interested in First Amendment questions.

Mr. Pentico is supposed to be sentenced on Monday; I guess that I will go to see what happens.

UPDATE: Wayne Hoffman at Idaho Freedom Foundation interviewed some of the players in this matter, and has some interesting reporting:

On March 25, 2008, two Capitol security officers blocked Pentico's entry to the Legislative Annex and told Pentico not to enter the annex, the third and fourth floors of the Borah Post Office (the temporary home of the governor's suite of offices), and the state Department of Education.
"I was asked not to have (Pentico) come back, and I relayed that information to him," Idaho State Police Corporal Jens Pattis told me Wednesday. Pattis said he consulted with Otter adviser Clete Edmunson and House Sergeant-At-Arms Judy Christensen on how to handle Pentico.
Edmunson said Pentico wanted Otter to inject himself in Pentico's dispute involving Boise State University and the State Board of Education, and persisted even after being told Otter would have no part of it.
"He just kept coming back to us," Edmunson complained.
Was Pentico belligerent? I asked Edmunson.
"I wouldn't say belligerent," Edmunson answered. "Obstinate might be the right word for it."
"He wouldn't take no for an answer," added Mark Warbis, the governor's communications director.
...
Equally troubling is that a very small number of government employees proclaimed three public buildings off-limits and then compelled Pentico to obey - not because they were afraid of him, but because they were tired of dealing with him. They alone determined the point at which a diligent constituent became an obstinate one. And they alone determined that Pentico's obstinance had crossed an imaginary line requiring their action.
For such a severe action, there seems to be little or no real record of the events leading up to the decision to bar Pentico from state offices, as evidenced by several competing stories. Edmunson and Pattis said the House of Representatives' Judy Christensen was included in a chat about barring Pentico, but Christensen said she doesn't know who Pentico is and doesn't recall having a discussion about him.
"He's not barred from the building by any means," Christensen said unsuspectingly last week.
At the Department of Education, officials were under the impression Pentico was banned because he had threatened State Board of Education members. He had not. And while Pentico was banned from the Department of Education, he was not forbidden from going to the State Board offices one floor up. Yet the Board is an original source of the conflict that soured the relationship between Otter's aides and Pentico.

There are at least two cases in which the Idaho courts have attempted to define the limits of the trespassing statute under which Pentico was convicted with respect to public property. The Idaho Supreme Court decided State v. Korsen (2003) and an Idaho district court decided State v. Stonecalf WarriorWoman (2008). Neither is exactly on point, but Korsen in particular should have given Judge Swain some guidance.

In the WarriorWoman case, a New Ager announced that she was

planning on attending a concert at NIC, on February 27, 2007, for the purpose of making a political statement. NIC learned of this through a posting placed on the internet by Warriorwoman. Tr. p. 2, Ll. 16-25; p. 2, Ll. 8-11. NIC also received a telephone call from Warriorwoman saying she was going to be at the Raining Jane concert that night, and she was going to bring a “Tomahawk with a 30-million-year-old part to it, that she planned to dance and would be wearing too tight of clothing, and she wanted a black student and a yellow student to dance with her.” Tr. p. 5, Ll. 1-8. The stated reason was “She was holding the four corners of the earth to save the evil American.” Id., Ll. 24-25.

WarriorWoman was arrested at the gate for refusing to allow for a search of her backpack, and was told that she was trespassing. The decision decided that while she might have a right to free speech, the tomahawk crossed the line from speech to conduct. It's not a terribly good decision, in my opinion, because it fails to answer the question of whether WarriorWoman could have been denied entry if she had said that she was going to show up and hold up a sign expressing her opinion.

The Korsen decision is again not exactly on point, but closer. The defendant, Korsen:

David Korsen appeared at the office of the Idaho Department of Health and Welfare in Boise to discuss his child support obligations. He informed personnel at the office that he might get loud and that he was not going to leave until he obtained some relief regarding his support requirements. He learned from the social worker that only the court could grant the relief he was seeking through making adjustments to child support payments he owed. The discussion grew louder and louder and, although Korsen did not use profanities or make any threats, he refused to leave the offices. The police were called, and Korsen was arrested at the scene on a charge of trespass under I.C. § 18-7008(8), because he refused to leave after being asked by the regional director of the department, who was in charge of the offices, to vacate
the premises.

At trial:

The magistrate concluded that the statute violated the Constitution because it was void for vagueness as applied to public property and because the statute failed to properly inform a person on public property about the specific conduct prohibited by the statute.

The Idaho Supreme Court overturned this ruling. With respect to vagueness:

Neither the magistrate nor the district court examined the constitutionality of I.C. § 18-7008(8) as it applied to Korsen’s specific conduct in this case. Nor did they examine the statute in toto. Rather, they applied a hybridized form of the facial test, which ordinarily is used to determine if a statute is void in all its applications, by considering the statute only in its application to public property. By finding the statute vague, not as applied to Korsen’s conduct, but as to all applications on public property alone, the magistrate and the district court used an improper standard for determining whether the statute was facially vague. It was improper to conclude that the statute is invalid on its face as applied to public property, because the standard to sustain a facial challenge requires that a statute be held impermissibly vague in all of its applications. See Hoffman Estates, 455 U.S. at 497. Furthermore, because the magistrate failed to examine the individual conduct of Korsen, consideration of the “as applied” standard with respect to only public property was in error.

This argues that Judge Swain should have considered evidence of whether Pentico's conduct constituted constitutionally protected activity or not. He apparently did not allow it. The Idaho Supreme Court also found that the lower court had erred because they had concluded that any free speech was protected on public property from such a trespassing charge, rather than looking at the specific conduct of Korsen. And this paragraph seems to fit Pentico's case rather well:

As an example of the statute’s reaching constitutionally protected speech, the district court pointed out the situation of people entering the Capitol to meet with legislators, asserting that, because the threat of prosecution under the trespass statute “potentially chills such clearly protected activity, the Court finds that the statute is unconstitutional in a substantial portion of the cases to which it applies.” This conclusion, however, illustrates the district court’s erroneous application of the facial overbreadth doctrine. A statute will not be invalidated for overbreadth merely because it is possible to come up with a hypothetical situation in which the statute is
unconstitutional as applied. Taxpayers for Vincent, 466 U.S. at 800. Rather, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court. . . .” Id., at 801-02.

Okay, Pentico's situation isn't hypothetical. The following paragraphs indicate that Korsen's conduct ceased to be free speech when he was informed that he was barking up the wrong tree:

The facts in Korsen’s case do not provide a situation where the exercise of free speech was impinged. Rather, Korsen showed up at the Health and Welfare office to conduct legitimate business, i.e., to discuss his child support obligation with the agency charged with overseeing collection of child support. When it appeared that his desire to obtain modification of the obligation could not be obtained at that office but, as he was informed, was a matter that properly should be addressed to the court where the obligation was established, the purpose of his visit to the Health and Welfare office came to an end.

Assuming that a criminal trespass prosecution is filed pursuant to I.C. § 18-7008(8) against a person on public property who is exercising his or her free speech rights, the statute could be attacked as applied to that constitutionally-protected conduct. This does not render the statute substantially overbroad. A reasonable reading of I.C. § 18-7008(8) shows that the statute does not reach a substantial amount of constitutionally protected conduct. The district court therefore committed reversible error in determining that the statutory language is overbroad.

There seems to be no claim that Pentico was doing anything but freedom of speech and petition of public officials for redress of grievances. Persistent, yes. The governor may not have wanted to involve himself in the dispute that Pentico was raising. But it was within the governor's power to do so. Banning Pentico seems a pretty clear violation of the First Amendment.

First Amendment Being Ignored In Idaho

First Amendment Being Ignored In Idaho

I mentioned last year the weird case of Chris Pentico, who was charged with trespassing at the state capitol. I tried to get to his trial on these charges earlier in the week, but an email telling about the trial "tomorrow" turned out to be a day late. I'm still gathering data about this, but in brief, Chris (who is the Republican Party chair for the 22nd district, and a really nice person), brought some evidence of at least questionable legal practices involving Boise State University to the attention of the governor, in the form of a written complaint. (It may be worse than just questionable, perhaps rising to the level of illegal, but I'm still waiting on some documents before I commit myself.)

After Chris left the building where the governor's office is located (while the capitol building is renovated), an Idaho State Police officer told him that he was making some legislators "uncomfortable" and he was not to return to the state office buildings. There was no allegation that he was a threat, or had broken any laws. He just made some legislators "uncomfortable."

Chris contacted his representative, Pete Nielsen, who made some inquiries, and couldn't find any evidence that Chris had been banned from the capitol. So Chris returned with some more papers related to his concerns, and dropped them off. A block or two from the state office buildings, he was arrested and handcuffed for violating Idaho Code 18-7011. (You can see the ticket here.)

So what does that section prohibit?

18-7011. CRIMINAL TRESPASS -- DEFINITION AND PUNISHMENT. (1) Any person who, without consent of the owner or person in charge of any lands which are inclosed by fences of any description sufficient to show the boundaries of the land inclosed, shall go upon such lands and shall leave open any gates on or about said premises, or who shall tear down or lay down any fencing, or who shall willfully remove, mutilate, damage or destroy any "No Trespassing" signs or markers, or who shall go through cultivated crops that have not been harvested, or who shall damage any property thereon, or who without permission of the owner or the owner's agent enters the real property of another person where such real property is posted with "No Trespassing" signs or other notices of like meaning spaced at intervals of not less than one (1) notice per six hundred sixty (660) feet along such real property, is guilty of a misdemeanor and on conviction thereof shall be punished by imprisonment in a county jail not exceeding six (6) months or by a fine of not less than twenty-five dollars ($25.00) and not more than one thousand dollars ($1,000) or by both such fine and imprisonment. Where the geographical configuration of the real property is such that entry can reasonably be made only at certain points of access, such property is posted sufficiently for all purposes of this section if said signs or notices are posted at such points of access.

There are no "No Trespassing" signs at the state office building. And indeed, it was so obviously wrong, that I understand that they had to refile the case against Chris three times, trying to find a section that would fit. Chris was convicted this week under Idaho Code 18-7008:

18-7008. TRESPASS -- ACTS CONSTITUTING.

A. Every person who willfully commits any trespass, by either:...

8. Every person, except under landlord-tenant relationship, who, being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses to so depart, or who, without permission or invitation, returns and enters said property within a year, after being so notified; ...

Is guilty of a misdemeanor.

Chris' attorney attempted to argue before Judge Swain that there were First Amendment problems with this charge. (I can see both free speech and right to petition for redress of grievances issues.)

I do not dispute that there might be circumstances under which a person could be ordered to not return to a government office--perhaps if there were threats of violence, or actions that constituted harassment. However, prohibiting a person from entering a state office building to complain about improper or illegal behavior by the government requires something more than legislators feeling "uncomfortable." For many years, there was a kook wandering around inside the California capitol holding signs with rather rude language, and the state lacked authority to remove him. A capitol tour guide (who sounded so much like Father Guido Sarducci that I had to resist laughing the whole time) made a point to warn about this, before starting our tour.

This seems at least a clear constitutional question that a judge should not arbitrarily refuse to allow a lawyer to raise: can a peaceable citizen be prohibited from entering a state office building to file a complaint? And what sort of conduct would justify such a prohibition? Chris tells me that Judge Swain would not allow Chris' attorney to even raise this clear First Amendment question.

Nor would Judge Swain allow Chris' attorney to call Rep. Pete Nielsen to testify that Nielsen had informed Chris that he could not find any evidence that Chris was prohibited from entering the state office building. This, at least, would have established that Chris had a good faith basis for believing that he was not prohibited from entering.

Nor would Judge Swain require the prosecution to say who, exactly, prohibited Chris from entering a state office building. The building didn't make this decision; someone who works for the state made this decision--and gets to hide behind the anonymity of "the people."

Now, you may be wondering: Where's the ACLU? Chris contacted the ACLU last year when this first started. You know, First Amendment question: freedom of speech; redress of grievances. But the Idaho chapter wasn't interested in it. (I guess that Chris should have been trying to perform an abortion in the governor's outer office, or demanding a right to marry another man.)

Anyway, it's an interesting problem. I wish that I had been present for the trial. Chris, who is a college student, is really not a position to pay an attorney to appeal this, and the ACLU, at least in Idaho, doesn't do free speech civil rights questions anymore. (At least, they don't do cases like this.) The sentencing date is currently scheduled for May 11, and Chris could get as much as $1000 fine and six months in jail for exercising the right to petition for redress of grievances.

At the Pachyderm Club meeting last night, this miscarriage of justice was brought to the attention of three members of the legislature, who promised to look into this. One member of the lower house and I spoke for a few minutes about this, and about whether Judge Swain's actions might rise to the level of an impeachable offense--but such actions are so rare here that he didn't know if the legislature had the authority to do that. Idaho Const., Art. V, sec. 3, seems to do so.

Freedom of Speech & The Press

Freedom of Speech & The Press

Professor Volokh asked a question over at Volokh Conspiracy about evidence of what the Framers intended the First Amendment's freedom of speech and press provisions to mean, in the context of the famous case New York Times v. Sullivan (1964), which almost gutted libel law if it involved a public figure.

I recalled reading a paper about the subject when I was an undergrad to the effect that the original intention was to prevent prior restraint; it did not mean that you could not be held responsible for the abuse of those freedoms. I remembered that Ben Franklin had quoted Shakespeare about how a person who steals his purse steals trash, but that if someone destroys his good name, it was far worse.

So I did a little digging, and found some interesting remarks by either Framers or at least early Republic legal commentators on the subject. James Wilson, Associate Justice of the U.S. Supreme Court at the time it was formed, and noted legal scholar of his time, has a lengthy discussion of libel law, both civil and criminal, exploring where he thinks Blackstone went wrong. Wilson seems not to have a problem with his statement of criminal libel's punishment:

The punishment of a libel is a fine, or a fine and corporal punishment. [Works of the Honourable James Wilson, 3:76]

Yes, America had laws that made it a criminal offense to libel a person. About twenty states still have these laws on the books. From what I have read, they are seldom used, and when they are, it is often to punish someone for accusing a police officer of wrongdoing. (Just because a law is constitutional, doesn't mean that it still makes sense.)

Joseph Story is another early U.S. Supreme Court Associate Justice. His Commentaries on the Constitution of the United States (1833) is pretty clear that freedom of speech is a protection against prior restraint:

That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen.... It is plain, then, that the language of this amendment imports no more, than that every man shall have a right speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. [Commentaries on the Constitution of the United States (1833), 3:731-2]

I would call this the anti-ACLU understanding of the clause.

Similarly, William Rawle's 1829 A View of the Constitution is quite clear on this as well:

But the liberty of speech and of the press may be abused, and so may every human institution. It is not, however, to be supposed that it may be abused with impunity. Remedies will always be found while the protection of individual rights and the reasonable safeguards of society itself form parts of the principles of our government. A previous superintendency of the press, an arbitrary power to direct or prohibit its publications are withheld, but the punishment of dangerous or offensive publications, which on a fair and impartial trial are found to have a pernicious tendency, is necessary for the peace and order of government and religion, which are the solid foundations of civil liberty. [pp. 123-4]

William Waller Hening's The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace (Richmond: Johnson and Warner, 1810), which seems to be Virginia Justice of the Peace for Dummies, as a discussion of criminal libel starting on page 373 that is pretty devastating to anyone that wants to argue that public officials deserve less protection than private citizens from defamation. The First Amendment wasn't applied to the states yet, but it would passingly odd if the First Amendment created a substantially different standard with respect to libel than the existing state laws.

Whatever might be said for the ACLU's view of freedom of speech and of the press, I can't find any Framers or early Republic assertions of the ACLU's position of effectively unlimited authority to publish virtual child pornography, obscenity, libelous attacks on public figures, and broad definitions of speech that include burning flags, topless/bottomless dancing, etc.--quite the opposite.

Ten Commandments

Ten Commandments

Those of you in the Boise area, or regular readers of this blog, know that several years ago, the city of Boise removed a Ten Commandments monument from Julia Davis Park. They did so because the Rev. Fred Phelps, a long-time liberal political activist before he was disbarred, and became Mr. Homophobe, demanded the right to put up a monument filled with anti-homosexual materials in the same park, unless Boise removed the Ten Commandments.

Boise chose to remove the Ten Commandments monument--even though there was case law that established that Phelps didn't have a leg to stand on, and there were lawyers prepared to defend Boise pro bono. But Mayor Bieter, who is a Democrat, used this as an excuse to remove the Ten Commandments monument, since this has become something of a symbol to local Democrats of our benighted state here--allowing something identified with the religion of 80% of the population of Idaho to survive.

The U.S. Supreme Court subsequently upheld the Texas legislature having a Ten Commandments monument on the grounds of the statehouse in Van Orden v. Perry (2005)--a situation even more fraught with potential Constitutional problems than its presence in a city park. And a couple of days back, a case exactly on point was decided by the U.S. Supreme Court in Pleasant Grove City v. Summum (2009). The Court held that there was no obligation for the city to add any monument that a crackpot group wanted in the park, just because the Ten Commandments monument was there.

What is astonishing about this case is that while there was some difference of opinion about why, there was complete and total agreement from all nine justices--even the raging liberals--about the result. Justice Alito's opinion explained that when the government speaks (as opposed to providing a public forum), it is expressing its opinion, and is under no Constitutional obligation to present all points of view.

We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

...

The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.

I was quite amused by one example of the absurdity of where this "all points of view must have an equal opportunity for expression if the government puts even one point of view up" might lead:

Respondent contends that this issue “can be dealt with through content-neutral time, place and manner restrictions, including the option of a ban on all unattended displays.” Brief for Respondent 14. On this view, when France presented the Statue of Liberty to the United States in 1884, this country had the option of either (a) declining France’s offer or (b) accepting the gift, but providing a comparable location in the harbor of New York for other statues of a similar size and nature (e.g., a Statue of Autocracy, if one had been offered by, say, the German Empire or Imperial Russia).

I have a feeling the Statute of Autocracy today would look a lot like George Soros.

As Alito's decision points out, there are limits beyond which the government may not go, for example, with respect to creating an Establishment of Religion (which the Ten Commandments monument clearly does not)--but that the major limitation is that the voters can throw the rascals out:

The involvement of public officials in advocacy may be limited by law, regulation, or practice. And of course, a government entity is ultimately “accountable to the electorate and the political process for its advocacy.” Southworth, 529 U. S., at 235. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.” Ibid.

What this means is that Mayor Bieter's claim that the city removed the Ten Commandments monument for Constitutional reasons is nonsense. They did it because Rev. Phelps gave them an excuse to do what they already wanted to do: remind the people of Boise that this is not a Christian city. Pretty clearly, the unwillingness of the voters of Boise to throw the rascals out over this--and even their unwillingness to overturn the decision by referendum--shows that Bieter was probably right. Democrats are a dominant force in Boise, and therefore, Christianity is destestable.

I'm disappointed that Bieter and the majority of the council decided to remove the Ten Commandments monument. There was no good reason for the city to spend the money that it did on removal, or on the subsequent lawsuits. This was simply an attempt to assuage the sizeable fraction of Boiseans who find it destestable and offensive to think that Christianity has any significance to this place. But they clearly have the authority to do so, as the Pleasant Grove City decision clearly finds. But if you live in a city where Christianity is not yet destestable, you can use this decision to take away the excuses of people like Mayor Bieter.

What A Surprise: Canadian Human Rights Tribunal Treats Some Religions Differently Than Others

What A Surprise: Canadian Human Rights Tribunal Treats Some Religions Differently Than Others

DaTechguy's Blog reports that the Canadian Human Rights Tribunal--which has gone after Christian pastors for writing letters condemning homosexuality--declined to do likewise with Muslims condemning homosexuality, Christianity, and Judaism. He quotes from this column in the December 19, 2008 National Post:

In April, a Quebec blogger named Marc Lebuis brought a complaint to the commission over a book published on the Internet by a Montreal-based fundamentalist Muslim, Abou Hammad Sulaiman al-Hayiti. Lebuis claimed that the book exposed gays, Jews, non-Muslims generally and other identifiable groups to “hatred or contempt” under the plain meaning of Section 13 of the act.
Mr. Lebuis’ purpose, he admits, was to “test the objectivity of the commission” in light of commission rulings against Christians for publishing equally or less strident language.
The commission failed the test spectacularly. On Dec. 5, CHRC officials told Lebuis that they would not proceed with an investigation of his complaint. They argued that Mr. al-Hayiti was free to say whatever he liked against “infidels,” and particularly non-Muslim women (what with their disturbingly wanton habits of dress and behaviour!) because they do not constitute an “identifiable group.” As for Mr. al-Hayiti’s imprecations against groups established as “identifiable,” like gays and Jews, the commission reported vaguely that these “do not seem” to meet the criteria for promoting hatred.
The first part of the finding has the tendency of permitting any kind of abusive language to be used against members of a notional majority group by a member of a minority. As for the second, Mr. al-Hayiti’s own words raise the question of what a radical Muslim writer could possibly ever do to be found guilty of arousing “hatred or contempt.”
Allah, Mr. al-Hayiti warns, has taught that “If the Jews, Christians, and [Zoroastrians] refuse to answer the call of Islam, and will not pay the jizyah [tax], then it is obligatory for Muslims to fight them if they are able.” Christianity, in particular, is denounced as a “religion of lies,” which is responsible for the West’s “perversity, corruption and adultery.”
At one point, Mr. al-Hayiti’s book refers to “the incredible number of gays and lesbians (may Allah curse and destroy them in this life and the next) who sow disorder upon the Earth and who desire to increase their numbers.” In one short passage, this combines a seeming accusation of demonic “recruitment” with an open wish for the complete elimination of homosexuals and a claim that they are a source of social chaos. It is like a mini-compendium of every form of dehumanization, in other words, to which gays and lesbians have ever been subjected. Can you imagine how a Christian who uttered a similar statement would be treated by a human rights commission?
Actually, we don’t need to wonder. A few years back, a Christian pastor named Stephen Boissoin printed some negative remarks about gays that were far tamer than those of Mr. al-Hayiti. The result: Alberta’s Human Rights Commission smacked him down, declaring that henceforth he “shall cease publishing in newspapers, by e-mail, on the radio, in public speeches or on the Internet, in future, disparaging remarks about gays and homosexuals.”

This doesn't surprise me. For a very long time, it has been apparent to me that much of the "separation of church and state" reasoning of the ACLU is actually hostility to Christianity. Perhaps if most American were Muslim, the ACLU would show as much interest in going after Islam, too. Of course, that would be difficult for the ACLU to do, since they would (at best) be sitting in prison cells in the Islamic States of America.

The First Amendment Swallowing The Prostitution Law

The First Amendment Swallowing The Prostitution Law

Professor Volokh points to some decisions in which the courts have found that film makers producing adult movies can't be prosecuted for paying actors to have sex (which is a violation of the prostitution staute), on the grounds that "the production of sexually explicit but non-obscene videos is constitutionally protected." Therefore, prostitution laws, because they conflict with the making of adult movies where the actors have sex, can't be applied to film makers. Adult movie makers are exempted from such laws.

I've long wondered why some clever pimp didn't just set up a "studio" in Los Angeles called, "Make Your Own Porn!" where customers pay $200 to someone who sets up a camera while an "actress" performs with the customer. If the police interfere, just scream, "People v. Freeman! The California Supreme Court says that this is constitutionally protected!" And indeed, someone in the comments on Professor Volokh's article makes that same point.

Why doesn't the First Amendment swallow up animal cruelty laws if the cruelty is in the course of making a movie? The same reasoning is in play. Sure, you could simulate animal cruelty for a film--you don't have to actually make an animal suffer to make it appear so on film--in the same way that you can simulate sex.

"But it wouldn't be as realistic!" the film maker and ACLU would respond. And that's true in both cases. And the same would be true for child pornography, too.

The fact is that People v. Freeman and similar cases come to the conclusion that they based on two false ideas: that sexually explicit materials are protected under the First Amendment (a position that seems not to have been noticed for a century and a half after its adoption, when publishing of a variety of indecent, scandalous, and libelous writings were punished as crimes); and that any law that interferes with production of sexually explicit materials but which is not targeted at speech, is therefore suspect.

Here's an analogy that will make clear how absurd this is. The Second Amendment protects a right to keep and bear arms. Where I live in Boise County, there's a resident who is quite upset at the moment because someone at 2:00 AM decided to deliver the coup de grace to an old Acura near her home. If they ever find the idiot who did this, and charge him with disturbing the peace, can he make the argument that the Second Amendment and Idaho Const. Art. I, sec. 11 exempt him from punishment? The disturbing the peace statute isn't aimed specifically at guns--and it is clear that the right to keep and bear arms was not a general guarantee that any possible use of a gun is protected.

Applying The Fairness Doctrine To Public Schools

Applying The Fairness Doctrine To Public Schools

Democrats are talking about bringing back the Fairness Doctrine as a way to bring "balance" to talk radio. Air America tried to do that--and the left discovered that there was no market for hard left talk radio--even in big cities.

Now, I'm not generally impressed with talk radio. I wasn't impressed with it back when the left dominated the field back in the 1960s. If I could somehow force Americans to read for information, I would be much happier. Even liberal newspapers and magazines like the Washington Post and Newsweek do a better job than liberal broadcast media of covering multiple perspectives--perhaps because you can read a lot more words per minute than you hear.

But if the Fairness Doctrine is such an important technique for making sure that broadcast radio is "fair" and presents both sides of an issue--why not apply the same law to public schools, K-12 and universities? In both cases, the theory is the same: the airwaves belong to the public; so do the public schools. Broadcast misinformation is bad for democracy; ditto for teacher misinformation. And as much as I agree that talk radio leans to the right, it is nothing like the manner in which the educational system leans so hard to the left that it can't even get off the floor.

What would be the practical effects of applying the Fairness Doctrine to education? If you are teaching American history, for every hour you spend teaching about slavery, the Fairness Doctrine would require that you bring in a representative from one of the neo-Confederate groups to present their perspective. If you teach about the Holocaust, someone presenting the "Holocaust didn't happen" perspective (or perhaps, "the Holocaust was a good thing" perspective) would get the same amount of time with your students. Indeed, you might end up having to decide whether to split the time among these two groups, or give each of them the same amount of time that you spent teaching that the Holocaust was a bad thing.

If you are a biology teacher, and you teach about evolution, then this question of fairness gets even more interesting. The Young Earthers will demand equal time (and in geology class, too!); the Old Earth Creationists will insist that the Intelligent Design crowd really aren't on the same side (and this is true), so they will demand equal time. And the Intelligent Design crowd will demand equal time. Can you see why the biology teacher might decide just to skip the whole evolution unit?

And this is exactly what the Democrats are trying to do. The Fairness Doctrine would require that for every hour of conservative talk radio which makes money selling advertising space, the radio stations would need to run an hour of left-wing talk radio--and lose piles of money. In practice, it would make conservative talk radio so unprofitable that talk radio would largely disappear. And that's the goal: to shut down what has become the only significant counterweight to the left's domination of broadcast radio and television.

Prosecutions for Child Obscenity

Prosecutions for Child Obscenity

The fire chief of one of our local fire districts here in Boise County was just sentenced to five years for possession. (I'm not using the phrase for what he possessed because a lot of spam filters will then make this blog invisible.) According to the September 17, 2008 Idaho World, Fire Chief Larry Sherril was caught because he was using a credit to purchase downloads--and when they searched his home, they found "5,252 sexually explicit images of prepubescent minors."

Some years ago, there was a rather outspoken Libertarian at a gun rights conference I went to who went way out of his way to criticize laws about such things, making the claim that there were all sorts of ways that a person might unknowingly download this trash. For example, someone might mail it to you--and by simply opening your email, you would be breaking the law. Or you might download it on your computer without knowing it. For example, it is very easy to set up a page that has a full-sized picture, but scaled down so that it takes only a single pixel. The picture would be downloaded to your computer--but you would not even see. As an example, there's a picture of Sarah Palin with a rifle simulator at the end of this paragraph. But I have specified that the picture is only one pixel wide--so you probably can't even see it.

Just so that you can tell that I am not making this up, here's the same picture ten pixels wide.

Now you know that there's a picture there.

So the point is valid: it is conceivable that you could download illegal pictures and not even know it--but I notice that just about all the cases that I see for federal prosecution start out with credit card charges to download this evil trash--which somewhat takes it out of the, "I have no idea how that got there" category.

Now, if the federal government were prosecuting cases simply based on finding pictures on someone's computer, I would regard that they don't have a very strong case. There are a lot of ways that this can happen. The example above. Or because you have failed to adequately secure your computer system against viruses or attacks through your firewall. And oddly enough, it appears that the federal government knows well enough not to pursue cases this weak.

Obscenity Trial in Los Angeles

Obscenity Trial in Los Angeles
Warning: perhaps a bit more graphic than some of you may want to read.

This is an unpleasant article from the June 10, 2008 Washington Post. It's about something unpleasant. The First Amendment was never meant to protect obscenity--and if this doesn't qualify as obscenity, what does?

LOS ANGELES -- What violates community obscenity standards in the nation's reputed pornography capital? Federal prosecutors think they have a case.
Ira Isaacs readily admits he produced and sold movies depicting bestiality and sexual activity involving feces and urine. The judge warned potential jurors that the hours of fetish videos included violence against women, and many of them said they don't want to serve because watching would make them sick to their stomachs.
"It's the most extreme material that's ever been put on trial. I don't know of anything more disgusting," said Roger Jon Diamond _ Isaacs' own defense attorney.
The case is the most visible effort of a new federal task force designed to crack down on smut in America. Isaacs, however, says his work is an extreme but constitutionally protected form of art.
"There's no question the stuff is disgusting," said Diamond, who has spent much of his career representing pornographers. "The question is should we throw people in jail for it?"
Isaacs, 57, a Los Angeles advertising agency owner who says he used to market fine art in commercial projects, calls himself a "shock artist" and says he went into distributing and producing films about fetishes because "I wanted to do something extreme."
"I'm fighting for art," he said in an interview before his federal trial got under way. "Art is on trial."

Oh yes, it's art! That excuses everything, doesn't it? Isaacs' excuses just get better and better:

Diamond said Isaacs also will tell jurors the works have therapeutic value for people with the same fetishes depicted on screen.
"They don't feel so isolated," Diamond said. "They have fetishes that other people have."

Sorry, but I want people like that to feel isolated. Maybe, if they feel isolated enough, they will decide to seek help--instead of forming yet another identity group to which the Democratic Party can pander.

The jury selection process sounds pretty unpleasant:

When jury selection began Monday, he urged prospects to be open about their opinions and incurred an onslaught of negative statements. Within the first hour, he dismissed 26 men and women who said they could not be fair to the defendant because they were repulsed by the subject matter. By day's end, half the panel of 100 had been excused.
"I think watching something like that would make me physically ill, nauseous," said one woman. "It's affecting me physically now just thinking about it."
One man fired angry comments at the ponytailed Isaacs.
"Hearing stuff about feces made me sick and the defendant looks like my ex-business partner who did some of these things. He looks guilty as sin to me," said the man. "It turns my stomach thinking about it."
Several prospects marched up to the judge's bench for private conferences when he told them that the films also involved violence against women. They, too, were excused, as were several who cited their religious beliefs.

So, who is left in the panel? Those who aren't repulsed by this sort of thing. Those who lack the honesty to say that they are repulsed by it. Those who are sufficiently rational to be repulsed, but not let it prevent them from serving on a jury. Hmmm. That doesn't sound like a very representative panel to me.

Why Freedom of the Press No Longer Exists in Canada

The fact that a magazine publisher who reprinted the Danish Mohammed cartoons is having to answer to a Canadian bureaucrat to defend his right to do so says worlds about where liberalism has taken Canada. See the details here, including video of the publisher defending his right to political speech.