How did Oliver Wendell Holmes in less than a year switch from saying arguing against the draft — that it was tantamount to falsely shouting fire in a crowded theater — to arguing that free speech is necessary for a marketplace of ideas seek out the truth.
In March 1919 Holmes wrote the unanimous opinion in Schenck v. U.S. Charles Schenck was convicted of violating the Espionage Act of 1917 for writing a pamphlet arguing that the draft violated the 13th Amendment prohibition against involuntary servitude.
Holmes reasoned that the pamphlet posed a “clear and present danger” and: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
In October 2019 Holmes did an about face and wrote a dissent in the 7-2 conviction of pamphleteer Jacob Abrams, a Russian immigrant, for writing that workers should go on strike to prevent the U.S. from going to war against Russia. In the case of Abrams v. U.S., Holmes wrote:
The NPR Radiolab recently broadcast a nearly hour-long discussion of the reason Holmes changed his stance so quickly. Scroll down to “What up Holmes.” It makes a compelling argument as to why a man in his late 70s made such an abrupt change in stance on the First Amendment right of free speech and changed how the courts and American treats speech and press rights.
“At a time in their lives when their days and nights should have been filled with innocent adventure, love, and the lessons of the workaday world, they were fighting in the most primitive conditions possible across the bloodied landscape of France, Belgium, Italy, Austria, and the coral islands of the Pacific. They answered the call to save the world from the two most powerful and ruthless military machines ever assembled, instruments of conquest in the hands of fascist maniacs. They faced great odds and a late start, but they did not protest. They succeeded on every front. They won the war; they saved the world.” — Tom Brokaw in “The Greatest Generation“
My father joined the Army when he was 16. He lied about his age.
He knew what was coming and was there when it came. He was in Pearl City that Sunday morning in 1941 when World War II began.
He spent the rest of the war hopping from island to island with his artillery unit. He said he chose artillery because he wanted to make a lot of noise.
I know he was in the Philippines about the time the survivors of the Death March of Bataan were rescued. The rest are a blur in my memory, though I recall him telling about how they censored letters home lest they fall into enemy hands and give away troop locations — you couldn’t write that the food was “good enough,” because the ship was at Goodenough Island.
He was a decorated hero, but said he refused to wear the Purple Heart so he wouldn’t have to explain exactly where the wound was located.
When he and his war buddies got to together they seldom talked about the fighting, only the antics, like climbing on the hood of a truck and stealing eggs out of the back of another truck as it slowly climbed a steep hill.
But one of his friends once let slip that Dad, a bulldozer operator, actually did that scene from a John Wayne movie in which the bulldozer operator raised the blade to deflect bullets while rescuing pinned down soldiers.
To hear him and his friends talk, it seemed like they spilled more beer than blood, but somehow still managed to win the war and save the world.
A report out this month from the International Energy Agency (IEA) points out an aspect of the Biden administration’s green energy ambitions that the green energy proponents will have a hard time swallowing — it will require a massive increase in the mining of minerals such as lithium, graphite, nickel and rare-earth metals.
In an op-ed piece in today’s Elko Daily Free Press, Michael Stumo, CEO of the Coalition for a Prosperous America, summarizes key points from the 287-page IEA report.
“According to the IEA, the production of lithium-ion batteries alone could drive up the global demand for lithium by more than 40 times through 2040,” Stumo writes. “Supplies of other key minerals — including graphite, cobalt, and nickel — would need to increase by at least 20 times as well.”
Environmentalists are already trying to block mining of lithium at the Rhyolite Ridge mine here in Nevada in order to protect the rare Tiehm’s buckwheat, which only grows on the public lands where the mining is to occur.
According to Stumo, the U.S. is now heavily reliant on China and other nations for these raw materials. “In fact, America’s mineral-import reliance has doubled in just the past two decades. And thanks to aggressive, mercantilist policies, China now controls 70 percent of the world’s lithium supplies, 80 percent of rare earth metals, and roughly 70 percent of the world’s graphite,” he writes.
While China utilizes extremely toxic practices to extract minerals, Stumo observes, the U.S. has some of the world’s most stringent environmental standards, meaning mine permitting can often take up to a decade.
If it takes a decade to get up to speed on mineral production, that will leave the U.S. in the thrall of China if the Biden green energy goal is to be met.
“To meet soaring demand and reduce imports from China, the United States must start mining more of these resources at home,” Stumo concludes. “The good news is that the U.S. possesses more than $6 trillion in mineral reserves. It’s time for federal policies to change in favor of U.S. mining and materials processing. Otherwise, President Biden’s clean energy agenda could fall short of its goals — and leave the U.S. dependent on China’s reckless mining industry.”
Writing on today’s opinion page of the Elko Daily Free Press, Cheyenne, Wyo., attorney Karen Budd-Falen warns of some of the consequences of the Biden administration’s so-called 30×30 Plan to conserve in its natural or unproductive state 30 percent of the nation’s land and water by 2030. The plan’s stated objective is to avert “a profound climate crisis.”
Budd-Falen notes that by 2030 the world’s population is expected to increase to 8.5 billion people. “To feed all those people, the world needs farmers and ranchers,” she writes. “According to the American Farm Bureau Federation, the average American farm feeds 166 people, but with the increase in the world’s population, the world’s farmers will have to grow 70% more food than they did in 2019.”
The Biden plan would “use Department of Agriculture programs, funding and financing capacities, and other authorities … to encourage the voluntary adoption of climate-smart agricultural and forestry practices …”
Budd-Falen aptly compares this voluntary compliance to the 1970s “voluntary” 55 mph speed limit. States that did not “voluntarily” lower their speed limits to 55 were denied federal highway funds. Most volunteered.
The attorney notes that the “Department of Agriculture has just significantly increased its ‘payment rates and financial incentives’ to convince landowners to enroll additional acres into the Conservation Reserve Program (CRP). While landowners have the right to do with their land what they want, I worry about paying agriculturalists not to produce.”
The administration has already canceled its federal oil and gas lease sales under the theory that wind and solar can replace oil, gas and coal, Budd-Falen notes, adding, “I have not found a lot of affordable commercial all-electric tractors that could be used on farming or ranching operations today.”
She concludes with a question no one in the Biden administration seems to be asking: “How are farmers and ranchers going to feed 8.5 billion people in 2030 if there is no American oil and gas for tractors, we are paying landowners not-to-produce or produce less, and multiple use on federal lands is curtailed or eliminated to reach the 30 X 30 Plan goals? And what I am really warning is that the history of the federal government’s ‘voluntary’ 55 mph speed limit NOT be repeated today.”
Profound climate crisis or starvation? Some choice.
Joe Biden graduated law school 76th out of 85 students in 1968. Maybe he hasn’t bothered to keep up with the status of jurisprudence since.
During his remarks to a joint session of Congress Wednesday evening, he declared, “And no amendment to the Constitution is absolute. You can’t yell ‘Fire!’ in a crowded theater.”
Maybe those words with improvised on the fly, because they do not appear in his prepared text.
Yes, in 1919 in the case of Schenck v. U.S. Justice Oliver Wendell Holmes declared, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
And just what was tantamount to “falsely shouting fire” and constituted what was labeled the “clear and present danger” test?
Charles Schenck was convicted under the 1917 Espionage Act for distributing pamphlets urging resistance against the World War I Selective Service Act — the draft. His pamphlet argued that conscription was tantamount to indentured servitude, which was barred by the Thirteenth Amendment following the Civil War. He was making a legal argument, Holmes compared that to causing a panic.
Even Holmes himself backed off this stance in a later case:
“Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
This was pointed out in the case of Brandenburg v. Ohio, which essentially overturned Schenck and established a much stricter free speech standard. The court held, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Imminent lawless action.
Of course, that case was concluded in 1969, a year after Biden finished low in his graduating law school class. Perhaps he’s not bothered to keep up since.
Just finished David Baldacci’s latest mystery novel, “A Gambling Man,” another in the author’s long string of intriguing, deftly woven tales of odd characters facing long odds while making moral decisions.
Released this past week, “A Gambling Man” is the sequel to Baldacci’s “One Good Deed,” about recent World War II vet Aloysius Archer who was trying to put his life back together after being imprisoned for the “crime” of being involved with a young lady who could not refuse the entreaties of her law enforcement father. It is another world, one in which everyone is chain-smoking unfiltered Lucky Strikes and Camels while taking frequent swigs of hard liquor from ubiquitous flasks that seemed to populate every pocket and purse, often joined by small-caliber pistols.
To accomplish this life mending, Archer — who always avoided the use of his rather anachronistic mouthful of a given name and answered to his surname, as is customary in the military — took a bus west to meet up with the “very private investigator” Willie Dash about a possible job as a PI with Dash in his California coastal town. During an overnighter in the biggest little city of Reno, Archer befriended a gambling addict too deep into debt to the wrong crowd. After some fisticuffs, a car chase punctuated by small arms fire and the presumptive demise of the gambler, Archer wound up the custodian of a red, 12-cylinder, 1939 French convertible and in the company of a comely singer-dancer with the convenient post-war stage name Liberty Callahan, who had Hollywood ambitions.
Together they made it out of Reno alive and arrived in Dash’s corrupt town in time to become ensconced in an attempted blackmail investigation that evolved into bodies tumbling like dominoes.
Baldacci keeps the pace quick and the plot twisting and tightening ever closer to the penultimately evil culprit. Along the way he drops nuggets of tortured similes and metaphors like: “They heard the sobs as they approached the garage. They cut through the still morning air like a machete through bamboo.”
Or this gem: “Dash moved slowly across the room to greet the men. Where he had been frenetic seconds before, Archer could see the man was now all cool, calm, and as collected as a preacher about to dispense an easy dose of religion and then follow that up with an ask for money.”
There is an adequate helping of casual sex along the way, but not so detailed as to border on the pornographic.
“A Gambling Man” is another satisfying and mind tingling tale from the 60-year-old author of more than 40 novels. The prolific writer is already scheduled to release another in his Atlee Pine series in November. Can’t wait.
On the campaign trail candidate Joe Biden promised to create a “fair and humane” immigration system. Instead, the Biden administration has created a system in which the criteria for being allowed into this country at the Southern border a deep, dark secret. Would-be immigrants show up at the border with no idea whether they will be allowed in or sent back to Mexico, nor why.
Is it humane for families to trek for months across dangerous, cartel-controlled expanses with no rationale expectation of being admitted?
According to an Associated Press account today, the Biden administration releases most children traveling alone to relatives in this country and gives them notices to appear in immigration court. “Nearly 9,500 such children arrived in February, up 60 percent from a month earlier,” the story relates.
But six out of 10 families picked up by the Border Patrol in February were sent back across the border. The number of family arrivals in February topped 19,200, more than double the previous month.
The anecdotal lede on the AP story recounts how one family from Honduras with children ages 3 and 5 were given bus tickets to Oklahoma to join an in-law, while a mother from El Salvador and her 8-year-old daughter was “being banished to a violent Mexican border city with no food or money and sleeping on the concrete of a plaza.”
What is our immigration law? Who knows? It is a secret.
It is time to cast off our chains and free ourselves from slavery to the clock.
On Sunday morning we are required to spring our clocks forward an hour, if we wish to remain in sync with the rest of the nation, get to church and work on time and tune in at the proper time to our favorite radio and TV programs.
Mankind once worked from can till cain’t, as my ol’ grandpappy used to say — from the time you can see till the time you can’t — and farmers and ranchers such as grandpappy still do. But to make the trains run on time, we strapped ourselves to the clock, even though the clock is uniform and doesn’t change when the amount of daylight does.
Ol’ Ben Franklin, while serving as ambassador in France, accidentally figured out that this out-of-sync arrangement was somewhat uneconomical when he mistakenly arose one day at 6 a.m. instead of noon and discovered the sun was shining through his window. “I love economy exceedingly,” he jested, and proceeded to explain in a letter to a local newspaper how many candles and how much lamp oil could be saved by adjusting the city’s lifestyle to the proclivities of the sun.
“This event has given rise in my mind to several serious and important reflections. I considered that, if I had not been awakened so early in the morning, I should have slept six hours longer by the light of the sun, and in exchange have lived six hours the following night by candle-light; and, the latter being a much more expensive light than the former, my love of economy induced me to muster up what little arithmetic I was master of, and to make some calculations, which I shall give you, after observing that utility is, in my opinion the test of value in matters of invention, and that a discovery which can be applied to no use, or is not good for something, is good for nothing.”
Then he did the math, and exclaimed, “An immense sum! that the city of Paris might save every year, by the economy of using sunshine instead of candles.”
Thus, in 1918 in a effort to be more economical during the war, Congress borrowed from Europe the concept of daylight saving time — springing clocks forward during the summer and back in the winter. From shortly after Pearl Harbor until the end of the Second World War, the nation was on year-round daylight saving time, or war time, as it was called.
Moving the clock forward in summer might well save a few kilowatt-hours in lighting, but in states like Nevada that savings is more than made up for with increased air conditioning costs and the fuel used to drive about more after getting off work.
One study found that springing forward causes enough sleep deprivation to cost the U.S. economy $435 million a year. The New England Journal of Medicine found an association between that one hour loss of sleep from daylight saving time and an increase in car accidents, as well as a 5 percent increase in heart attacks in the first three weekdays after the transition to daylight saving time, while an Australian study found an increase in the suicide rate.
In a probably futile gesture to end the charade, the state Legislature a couple of years ago passed Assembly Joint Resolution No. 4 that proposes to make Pacific Daylight Saving Time year-round.
“WHEREAS, Congress also found and declared that ‘the use of year-round daylight saving time could have other beneficial effects on the public interest, including the reduction of crime, improved traffic safety, more daylight outdoor playtime for children and youth of our Nation, [and] greater utilization of parks and recreation areas …’” AJR4 reads in part, also noting possible “expanded economic opportunity through extension of daylight hours to peak shopping hour. ”
It passed both the Assembly and Senate and was enrolled by the Secretary of State.
Changing to year-round daylight saving time might not save electricity, but it could increase productivity and prevent car wrecks.
Alas, as with everything else, the power to fix this lies in Washington, though I can’t seem to find this enumerated power in my copy of the Constitution. Perhaps it is outdated.
In another glaring example of the efficiency and sincerity of our elected officials, AJR4 passed, the morning newspaper reported that no one in Washington had ever heard of AJR4.
AJR4 concludes by beseeching Congress to amend The Emergency Daylight Saving Time Energy Conservation Act of 1973 and allow each state to opt out, the same as Arizona and Hawaii have opted out, but rather than sticking with standard time, AJR4 would adopt Pacific Daylight Saving Time all year. Why should it get dark at 4:30 p.m. in the winter anyway?
Washington is in another century, much less a different time zone.
But the clowns in Carson City are dutifully at it again this year, working on legislation that might — if enough hoops are leapt through and the left coast Californians also indulge — keep Nevada’s clocks from hiccupping twice a year by staying on either standard or daylight saving time.
According to the Pahrump Valley Times, Senate Bill 153, if approved, has two prerequisites. First, moving Nevada to daylight time will only take effect with federal authorization. Also neighboring California must make the change, too. California voters OK’d the change in 2018 but the Legislature hasn’t acted.
A New York Times story (accessible for subscribers only) on the cover of the Sun insert in the morning paper quoted a book writer as saying that “Trump sought to ‘remake reality through language’ during a tumultuous tenure. As she writes in her book, the former president ‘changed some of the deepest expectations about presidential language, not just when it comes to style, but also the relationship between words and reality.’
“Now officials in Biden’s administration are using Trump’s own tactics to adjust reality again, this time by erasing the words his predecessor used and by explicitly returning to ones that had been banished.”
Erasing words? Changing the meaning of words in order to change reality?
Oh come on. Will somebody come out and say it out loud?
OK, the Times writer did get around to it well down in the tale.
“It’s kind of Orwellian — that’s what it is, really,” the NYT quoted Mark Krikorian, executive director of the Center for Immigration Studies, as saying. “The war against the word ‘alien’ is a continuation of this effort to destigmatize illegal immigration that started in the mid-1970s. This is in a sense the culmination of that process.”
Orwell, who learned the propaganda trade during World War II while working for the BBC, was a prophet. The current wordsmanship is nothing new.
If you subscribe to the morning paper you should be able to read the NYT account here.
“Don’t you see that the whole aim of Newspeak is to narrow the range of thought?” Orwell wrote in “Nineteen Eighty-Four.” “In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it.”
Wall Street Journal columnist Joel Zinberg today reminds us that in 2020 the Biden campaign in general and Kamala Harris specifically “maligned President Trump’s claims about the speed of vaccine development and questioned its safety and effectiveness. New York’s Gov. Andrew Cuomo cast doubt on FDA evaluations of Covid-19 vaccines and said states should conduct their own reviews. An Aug. 27 letter from the Centers for Disease Control and Prevention asking governors for help setting up vaccine distribution elicited a statement from Senate Democratic Leader Chuck Schumer questioning the safety of the vaccines in development. Media ‘fact checkers’ said rapid vaccine development would take a ‘miracle.’”
Coincidentallu, Between April and December, Zinberg noted, the share of Americans who told pollsters they were likely to consent to vaccination declined from 74 percent to 56 percent.
Reuters quoted Joe Biden back in September as saying, “Let me be clear: I trust vaccines, I trust scientists, but I don’t trust Donald Trump. At this moment, the American people can’t either.”
In an editorial today the WSJ reported that on Monday two Democrat congressional representatives “sent letters pressing 12 cable and tech CEOs to drop contracts with right-of-center media outlets including Fox News. Two days later the Energy and Commerce Committee held a hearing about ‘disinformation and extremism’ in conservative media. The only notable extremism on display was the majority party’s appetite for regulating and policing the free press.”A Texas Democrat representative said at the hearing that he saw a tension between “the freedom of speech versus other peoples’ safety.”
Like what was said by Biden, Harris, Cuomo, Schumer and certain media fact checkers?
From Kimberley Strassel’s WSJ column today: “Right now, the greatest threat to free speech in this country is not any law passed by the government— the First Amendment stands as a bulwark,” says Federal Communications Commissioner Brendan Carr. “The threat comes in the form of legislating by letterhead. Politicians have realized that they can silence the speech of those with different political viewpoints by public bullying.”
This observation came after Twitter, Facebook and others banned prominent conservatives, Twitter locked the account of the New York Post for reporting news about the Democratic presidential nominee’s son, Google and Apple dropped Parler from their app stores and Amazon banned a three-year-old book questioning transgenderism.
There is more than one way to skin a free speech cat.