Newspaper column: High court should stand firmly for free speech

Jack Phillips decorates a cake. (Reuters pix via WaPo)

It has long been agreed that the First Amendment right to free speech includes the right to not be compelled to speak, but this past week the U.S. Supreme Court appeared to skirt this simple premise, though it ruled in favor of a Colorado cake baker who refused in 2012 to create a wedding cake for a same-sex couple for a different reason.

The court’s 7-2 ruling in favor of Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., instead hinged on the fact the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion.

Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.

“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”

Kennedy added that the commission’s disparate treatment of Phillips violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

“The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion. … Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs,” Kennedy said.

As usual, Justice Clarence Thomas countenanced no tolerance for such nuanced, too-narrow rulings and tackled the matter head on in a concurrence that was joined by Justice Neil Gorsuch. Thomas said Phillips rightly prevailed on his free exercise claim, but the court failed to address his free speech claim.

Thomas wrote that the appellate court rationalized that Phillips was defying Colorado’s public-accommodations law and not acting as a speaker. “This reasoning flouts bedrock prin¬ciples of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak,” he concluded.

Thomas said public-accommodation laws may regulate conduct, but not expression of ideas, citing a case in which the high court ruled unanimously that the sponsor of a St. Patrick’s Day parade could not be forced to include a group of gay, lesbian, and bisexual Irish-Americans, because that violated the sponsor’s right to free speech.

“While this Court acknowledged that the unit’s exclusion might have been ‘misguided, or even hurtful” … it rejected the notion that governments can mandate ‘thoughts and statements acceptable to some groups or, indeed, all people’ as the ‘antithesis’ of free speech …” Thomas explained.

He further noted that the court has held that communication of ideas can be conveyed by symbolism as well as words — such as nude dancing, burning the American flag, flying a flag upside-down, wearing a military uniform, wear¬ing a black armband, conducting a silent sit-in, refusing to salute the flag and flying a plain red flag.

Thomas said that the court’s previous ruling that the Constitution protects the right to same-sex marriage does not mean those who disagree are not entitled to express that opinion.

“Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day,” Justice Thomas concluded. “But, in future cases, the freedom of speech could be essential to preventing (the right to same-sex marriage) from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

There are cases waiting in the wings that might afford an opportunity to fully recognize freedom of speech when it comes to whether a business may be compelled to offer its services for same-sex weddings — these include a florist in Washington state, a web designer in Colorado and a calligrapher in Arizona.

Hopefully, the court will be more forthright and specific in favor of free speech in on of those or some other case.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Advertisements

Editorial: Let Trump decide who stands on his soapbox

The First Amendment prohibits the federal government abridging one’s free speech, but it does not, as a federal judge has ruled, require anyone to provide the soapbox for that speech.

U.S. District Judge Naomi Reice Buchwald of New York ruled recently that President Donald Trump may not block Twitter users who criticize him because that violates their right to free speech.

“While we must recognize, and are sensitive to, the president’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him,” the judge said in her 75-page ruling, somewhat exceeding the 140-character limit of Twitter.

Any Twitter user can block people from accessing their online posts and replying to that user and their followers. Trump reportedly has posted 4,000 times on his personal @realDonaldTrump account to nearly 32 million followers. How that cacophony constitutes a public forum in which anyone can be heard strains credulity. But why should the president be obligated to give someone else unfettered access to those who have agreed to follow him?

The president should be treated no differently on his personal @realDonaldTrump account. His official presidential Twitter account, @POTUS — and why there is one of those is a mystery to us — is another matter entirely. He certainly may not block people from commenting on their own social media apps, but he is hardly obligated to accommodate anyone who wants to glom onto his personal Twitter account and use it as platform for their views. It is his soapbox. Create your own.

But the judge said Trump could not block people from following him on Twitter just because they had posted comments to which he objected, because that amounted to “viewpoint discrimination” by a public official in a public forum.

As Ronald Reagan once said: “I am paying for this microphone, Mr. Green!”

If Trump were to make a televised speech from the Oval Office, should the networks be required to keep the cameras rolling while any clown with a rant can piggyback on the speech by dashing up to the microphone? 

It is like freedom of the press, which belongs to anyone who owns one.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Free speech does not require one to provide someone else a soapbox

The First Amendment prohibits the federal government abridging one’s free speech, but it does not, as a federal judge has ruled, require anyone to provide the soapbox for that speech.

U.S. District Judge Naomi Reice Buchwald of New York ruled today President Donald Trump may not block Twitter users who criticize him because that violates their right to free speech.

“While we must recognize, and are sensitive to, the president’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him,” the judge said.

Any Twitter user can block people from accessing their online posts. The president should be treated no different. He certainly may not block people from commenting on their own social media apps, but he is hardly obligated to accommodate anyone who wants to glom onto his Twitter account.

Just because he is president does not change things.

As Ronald Reagan once said: “I am paying for this microphone, Mr. Green!”

Trump addresses the media at the White House today. (Getty pix)

 

Newspaper column: Court case is about free speech, not abortion

This past week the U.S. Supreme Court heard arguments in a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on certain professionals is a violation of the free speech clause of the First Amendment.

NIFLA is the National Institute of Family and Life Advocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices informing pregnant women about state-subsidized free or low-cost abortions.

The law also requires pro-life, religious-oriented unlicensed centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services, significantly increasing their cost to advertise. The law exempts abortion providers, hospitals and other healthcare facilities.

The Ninth Circuit upheld the law.

The case could reverberate in this year’s Nevada gubernatorial election, because Attorney General Adam Laxalt, who is running for the Republican nomination to be governor, signed onto to an amicus brief in the case with 21 other states, challenging the law as an unconstitutional burden on free speech.

According to the donation-funded news website The Nevada Independent, the two leading Democratic gubernatorial candidates, Clark County Commissioners Steve Sisolak and Chris Giunchigliani, have sharply criticized Laxalt for taking sides in the lawsuit, calling him “anti-choice.” Sisolak and Giunchigliani are both donors to the website.

The amicus brief argues the California law is not “an informed consent” law, which the courts have upheld.

“Informed consent is required specifically so that the patient can assess the risks and consequences of a procedure that a doctor is seeking to perform. …” the brief in question argues. “In contrast, a State’s desire to compel clinics to disseminate information about the availability of state funding for procedures those clinics do not perform has nothing to do with allowing a patient to assess the risks and consequences of a medical procedure about to be performed.”

The targeted clinics provide pregnancy tests, ultrasounds, referrals and consultations, which involve little, if any, risk.

The brief concludes, “If there is evidence of wrongdoing on behalf of any of the medical clinics, California may unquestionably enforce those standards through the power of its regulatory authority, like any other State. But enforcing standards does not necessitate a blanket requirement compelling medical clinics to advertise state- subsidized services they do not provide.”

During oral arguments this past week, the questions asked by both liberal and conservative justices indicated they thought the law an overreach.

“If — if it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” asked the court’s newest conservative member, Neil Gorsuch. He later added, “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Conservative Justice Samuel Alito asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech.

“I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences. …” Alito said from the bench. “But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?”

Justice Elena Kagan, one the markedly liberal justices, questioned the way the law was “gerrymandered” to target a select group for the content of their speech.

“Because if it has been gerrymandered, that’s a serious issue,” she stated. “In other words, if, you know, it’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”

The question to be resolved in California is about free speech, not abortion.

Laxalt did join a 25-state amicus brief a year ago defending a Texas law banning “dismemberment” abortions, in which fetuses are torn apart in the womb.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Both sides of the national abortion argument, plus free-speech rights, are at the center of Supreme Court case NIFLA v. Becerra. (AP pix).

We are still waiting for the voice of Nevada voters to be heard — 22 years and counting

Facebook has this algorithm that pops up something you’ve shared online in the past and asks if you’d like to repost it. It might a cute pix of your dog or a vacation remembrance.

This time it turned out to be a reminder that the will of the voters of Nevada had been ignored for 16 years. It was a link to a blog based on a column that appeared in the Battle Born Media newspapers. Oh yes, it was first posted in February 2012, six years ago, so now the will of the Nevada voters has been ignored for 22 years.

Here is the column appeared in the newspapers but has long since disappeared into the ether:

By Thomas Mitchell

This is not federalism. It is feudalism.

As most Nevadans know, the federal government holds sway over somewhere between 83 and 92 percent of the land in this state, depending on which official government source you cite. That is the highest percentage of any state in the union, including Alaska.

This is the result of something known as a Disclaimer Clause included in the statehood act admitting Nevada as a state. As a condition of entry into the union, the state was required to “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

The federal government, not the state, controls the land known as Mount Wilson. (Pix by Jo Mitchell)

Putting aside the extortionate nature of the demand and that it was agreed to under duress and that it encumbered generations not yet born, nowhere in the Constitution is the federal government granted an enumerated power to deny any state sovereignty over its own lands. Even sharecroppers have more rights than that.

Over the years it has been unsuccessfully argued that the Disclaimer Clause violates the spirit and letter of the Equal Footing Doctrine under which every new state admitted to the union does so under the same conditions as the 13 original states.

On Oct. 31, 1864, the president proclaimed:

“Now, therefore, be it known, that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original states.”

In fact, in 1911 the U.S. Supreme Court in Coyle v. Smith opined, “No prior decision of this court sanctions the claim that Congress, in admitting a new State, can impose conditions in the enabling act, the acceptance whereof will deprive the State when admitted of any attribute of power essential to its equality with the other States.”

That seems clear enough, but it has been roundly ignored.

Grazing rights are routinely canceled for arbitrary reasons. Roads are closed in order to protect some minnow or bug no matter how much it inconveniences the residents. Permission to obtain rights of way and mining permits languish for decades in the federal bureaucracy. All should be responsibilities of the state of Nevada.

It is estimated that 13 Western states forgo $4.2 billion a year in property taxes due to the vast holdings of untaxed land by the federal government.

In 1993 Nye County Commissioner Dick Carver wrote a lengthy letter to the governor and the various heads of the federal agencies controlling public land in the state. He convincingly argued:

“The people of the Nevada Territory had no authority to pass this act. Research has shown that first, the people of the Territory of Nevada had to give up all their ‘interest’ in the unappropriated lands of the Nevada territory to the Congress of the United States so Congress could pass said lands to the State of Nevada upon acceptance of Nevada into the Union. Then Nevada would become a free sovereign state as the original thirteen states relating to land.”

What many have forgotten is that in 1996 the citizens of Nevada voted to change the Nevada Constitution and strike the Disclaimer Clause. It passed with more than 56 percent of the votes.

Ballot Question 4 read simply: “Shall the Territorial Ordinance of the Nevada Constitution be amended to remove the disclaimer of the state’s interest in the unappropriated public land?” Yes or no.

Nearly 16 long years later, the state Constitution still contains a footnote explaining that the amendment was “proposed and passed by the 1993 legislature; agreed to and passed by the 1995 legislature; and approved and ratified by the people at the 1996 general election, effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary.”

Congress has not consented. There has been no legal determination.

Speaking of feudalism, the right to petition for redress of grievances was first embodied in the Magna Carta in 1215.

The Founders thought this so fundamental they included it in the First Amendment as one of five key rights delineated there.

For the voters of Nevada, this right has not been denied, just simply ignored.

In the subsequent blog I noted that I had emailed the office of Gov. Brian Sandoval and asked what he would do, if anything, to address the vote of the citizens of Nevada taken nearly 16 years earlier, but roundly ignored ever since.

I wrote, “I’ve had no reply yet. Just like the voters. I wonder if I will still be waiting 16 years hence.”

Well, it has been six years, only 10 more to go.

YouTube video posted with the blog six years ago:

 

 

Editorial: A day worthy of celebrating: Constitution Day

This Sunday, Sept. 17, marks the anniversary of one of the most propitious days in the history of this country. On that day in 1787, the representatives at the Constitutional Convention in Philadelphia signed the Constitution. It was ratified by the states and went into effect on March 4, 1789.

You remember the Constitution don’t you?

That’s the document that says the president “shall take Care that the Laws be faithfully executed …” Not waive, delay or ignore parts of laws the president doesn’t like, such as immigration laws, which the Constitution says: “The Congress shall have Power To … establish an uniform Rule of Naturalization …”

The Constitution also says, “All Bills for raising Revenue shall originate in the House of Representatives …”

But when it came to ObamaCare, which is replete with a panoply of revenue generating taxes to offset its expenses, the Senate grabbed an unrelated bill that had passed the House, cut the existing language and substituted the ObamaCare verbiage. The bill number was the only thing that originated in the House.

Yes, it’s those four-handwritten pages that give Congress the power “To regulate Commerce with foreign Nations, and among the several States …” Not to force people to engage in commerce by buying health insurance or pay a fine or a tax for not doing so.

That Commerce Clause also has been stretched to prohibit a farmer from growing grain to feed his own cattle because that affected demand for grain on the interstate market. The same rationale allows Congress to set minimum wages for jobs that have nothing to do with interstate commerce.

It also gave Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Some wars get declared, while others are just military exercises.

The instrument also says the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Not decide for himself when the Senate is in session. At least the judiciary slapped Obama’s wrist on that one.

During ratification the Founders added the Bill of Rights, including the First Amendment that says Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” That probably means Congress can’t order a religion to pay for contraceptions, abortifacients and sterilization against its beliefs.

We’re pretty sure the document did not envision a president’s administration creating by regulation laws the Congress refused to pass — think immigration enforcement and rules promulgated by the EPA, FEC, HHS, HUD or USDA without the consent of Congress.

Another clause gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States …” though the foregoing powers and powers vested by the Constitution part is largely ignored.

The Constitution also gave Congress the power “To exercise exclusive Legislation in all Cases whatsoever … to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …” And just when did Congress purchase and the state Legislature consent to turning over 85 percent of Nevada’s land mass to the federal government?

As James Madison said, “I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations …”

Happy Constitution Day, while it lasts.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Who will stand up for the First Amendment?

The lede editorial in today’s newspaper rightfully thumps Democrat Rep. Jacky Rosen, who recently announced she will seek Sen. Dean Heller’s seat next year, for embracing the First Amendment-shredding effort to overturn the Citizens United Supreme Court ruling that said corporations and unions have free speech rights.

The editorial noted that this week Rosen was endorsed by the End Citizens United group and she responded by saying, “I’m grateful to End Citizens United for their support, and I will be their partner in the fight against mega-donors flooding our elections with unlimited and unaccountable dark money.”

The Citizens United ruling overturned a portion of the McCain-Feingold campaign finance law under which the Federal Election Commission barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

In the press release announcing its endorsement, End Citizens United’s President Tiffany Muller declared, “Nevada will be a top priority for ECU this cycle and we look forward to working closely with Rosen’s campaign and help her fight back against the special interests who will do and say anything to protect their handpicked candidate.”

Rosen was further quoted as saying, “Washington hasn’t been listening to the needs of Nevadans because billionaires and special interests are drowning out the voices of real people in our communities. If we’re going to make real progress on issues like climate change, gun violence and health care, then we need to bring some transparency and accountability to our broken campaign finance system. Unlike Senator Heller, I will stand up for Nevadans by speaking out for real reform and a reversal of this catastrophic Supreme Court decision.”

That press release also said Heller voted three times against the DISCLOSE Act, Democracy Is Strengthened by Casting Light On Spending in Elections. That bill was pushed strongly by Sen. Harry Reid, whois backing Rosen’s run against Heller.

Actually, in the final vote killing that bill, Heller was absent. Though he was campaigning, his spokesman said he would have voted against it.

But in an interview on Sam Shad’s “Nevada Newsmakers” in 2016 Heller called for ending of corporate and union campaign donations in federal elections, though he did not call directly for overturning Citizens United.

“I would be for eliminating both,” Heller was quoted as saying. “Lets just make it fair and let’s get it back to the grass roots, get back to letting rank and file Americans, let them participate in this process. It (money) has completely overwhelmed the process. I think we should restrict both corporations and unions and let’s get it back to the grass roots.”

How you do that without amending the Constitution and ripping apart the First Amendment was not explained.

Rep. Dina Titus, who also has indicted she might run for Heller’s seat in the Senate, also has expressed support for End Citizens united.

Justice Anthony Kennedy explained this in his majority opinion in Citizens United v. FEC: “As a ‘restriction on the amount of money a person or group can spend on political communication during a campaign,’ that statute ‘necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.’ … Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. (Government could repress speech by ‘attacking all levels of the production and dissemination of ideas,’ for ‘effective public communication requires the speaker to make use of the services of others’).”

Reid in one of his many diatribes on the subject said: “But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons. It is time that we revive our constituents’ faith in the electoral system, and let them know that their voices are being heard.”

This implies the voters are too stupid to hear an open and free-wheeling debate and not be influenced by the volume or frequency of the message.

Who will stand up for the First Amendment?

Jacky Rosen (R-J pix)