When ‘A Clockwork Orange’ becomes reality

Forced speech is not free speech — even if the motives appear admirable.

This week the U.S. Supreme Court, without comment, refused to hear an appeal of a 6th Circuit Court of Appeals ruling upholding a Kentucky law requiring doctors, prior to performing abortions, to have ultrasounds prepared and shown to the woman seeking the abortion, along with the playing of audio of the fetal heartbeat — no matter the wishes of the doctor or the patient.

These are dubbed informed consent laws. Consent is certainly best obtained from the informed, but by force?

A doctor failing to do so faces fines and the possible loss of medical license.

Frankly, it sounds rather like the brutal aversion therapy prescribed in “A Clockwork Orange.”

The AP says the woman may avert her eyes and cover her ears, but how long before that is prohibited by law in the name of informed consent?

 

Free speech includes the right to be silent

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political view might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flowing arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in a matter of days.

Today the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree. Justice Samuel Alito writes in the 5-4 opinion:

The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” … The right to eschew association for expressive purposes is likewise protected. … (“Freedom of association … plainly presupposes a free­dom not to associate”) … (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constella­tion, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy 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 was an unconstitutional impingement on free speech. The ruling overturned a 9th U.S. Circuit Court of Appeals ruling.

Justice Clarence Thomas wrote in the majority opinion:

Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly “alters the content” of petitioners’ speech.

A little more than a week ago in a 7-2 ruling the court held the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion and free speech.

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 (Masterpiece Cakeshop owner Jack) 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.”
Shortly thereafter the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.
The state of Nevada, under the direction of Attorney Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.
Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

Lame-duck Democratic Rep. Ruben Kihuen sent an email saying, “It is disappointing that today’s Supreme Court decision will allow unlicensed facilities to continue misleading women about the health care services they provide. No woman seeking accurate information about her health care options should be lied to, shamed, or denied access to basic medical care. This ruling is a huge setback in our nation’s fight to protect and advance women’s rights and will make it harder for women to access the health care services they need. We must continue fighting to ensure that every woman has the right to make her own health choices and has access to the full range of options.”

Laxalt’s political campaign sent out an email crowing about the two most recent court ruling and rubbing Sisolak’s nose in it:

The Supreme Court has reaffirmed that the government cannot force Nevadans to advocate political positions against their beliefs. We know Steve Sisolak disagrees. Steve said it was “shameful” when Adam visited a Nevada pregnancy care center, and he favors zero restrictions on abortion — a position to the left of most Nevada Democrats. He is benefiting from the government union in this case, AFSCME, that is running over a million dollars in attack ads against Adam right now — attack ads that PolitiFact has called “false.”

These were great victories for free speech. Adam protected pregnancy care centers from a radical California law that would have forced these pro-life centers that offer care for pregnant women to advocate for policies they disagree with. Adam protected workers from being forced to give up their wages to a government union that pays for political lobbying and advertising that they may disagree with.

Steve Sisolak’s fringe agenda is being exposed. This is a great week for freedom of speech in Nevada, and a terrible week for Steve Sisolak’s radical political machine.

Anti-abortion activists celebrated outside the Supreme Court on Tuesday. (Reuters pix via NYTimes)

 

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).

Justices ask questions about California law requiring abortion information

On Tuesday the U.S. Supreme Court heard arguments on the constitutionality of a California law requiring pro-life pregnancy clinics to inform women about the availability of state-sponosored abortions.

The lawyers were frequently interrupted by the justices asking pointed questions. One by Justice Samuel Alito was particularly concerning. He 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.

And I — I — I’d like you to explain why that is consistent with Stevens and other cases where the Court has recently said we are not going to recognize any new categories of unprotected speech and how you would define the boundaries of professional speech.

And there have been a lot of cases on — there have been some cases on this in the lower courts. 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?

The lawyer replied that the such laws would not not include economists or journalists, but would include doctors and lawyers and maybe accountants.

And why the distinction? The state is commandeering the free speech of pro-life pregnancy centers to convey its message, why not journalists?

Justice Neil Gorsuch offered this:

Well, if it’s the first kind of statute, then why shouldn’t this Court take cognizance of the state’s other available means to provide messages? 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?”

Justice Anthony Kennedy asked whether a pro-life clinic that posts a billboard saying “Choose Life” would have to comply with the law. The answer was, yes. Actually 29 words in the same size font. It was not made clear whether that included posting the message in 13 languages.

Would this billboard have to include a message on where to get an abortion under California law? Yes.

Newspaper column: On Planet Harry the GOP is evil incarnate

In the movie “After Earth,” starring Will Smith and his son Jaden, spacefarers crash land on an Earth that humans have long abandoned and everything on the planet has evolved with the singular purpose of killing humans.

On another fictional planet in a far off galaxy is Planet Harry, where the GOP has evolved with the singular purpose of killing everything Nevada’s senior senator thinks worthy of foisting on his subjects. It is a place where, with his linguistic contortions, logic is upside down, black is white and all Republicans are evil incarnate.

On Planet Harry the IRS scandal is the fault of Republicans who blocked passage of the DISCLOSE Act, which would have required private groups to disclose their donors.

Harry Reid on another planet

“Not a single Republican voted with us on the DISCLOSE Act,” Reid explained. “So again I ask where was the outrage of the Republicans then? We should take another look at the DISCLOSE Act. While we need to stop those abuses by the IRS, we must also crack down on efforts by Karl Rove and others to exploit our tax code and pour unlimited amounts of money into our political system.”

To Reid it makes no difference the Supreme Court and Congress disagree with him or that the IRS illegally did the disclosing he wants — leaking confidential IRS applications, including the names of donors, to the liberal ProPublica so it could write exposés about them. On Planet Harry, Obama’s executive order banning the deportation of illegal immigrants who were brought into the country at a young age because Congress refused to pass the DREAM Act makes perfect sense. (In April, a judge ruled Homeland Security “does not have discretion to refuse to initiate removal proceedings” of certain illegal immigrants, but — as with the rulings against the illegal Gulf drilling moratorium, the illegal “non-recess” appointments, the illegal ObamaCare and No Child Left Behind waivers — that’s being ignored.)

Then Reid said of questions about Benghazi: “This is about smear politics and nothing else.”

Never mind that Obama, Secretary of State Hillary Clinton and the ambassador to the U.N. clearly lied in the middle of the 2012 political campaign and said Benghazi was just a demonstration over a video that got out of hand.

Perhaps the most bizarre comments by Reid came in reply to a reporter asking whether he’d support a bill to make abortion illegal after 20 weeks in light of the conviction of a Pennsylvania abortionist on charges of killing viable babies born during abortions:

“Listen, and I know you’re all trying hard to, what led to this, these convictions of murder for this man is the fact that people have been pushed back into these holes to do something that’s legal. I think that all this picketing of these clinics and throwing chemicals into them that make them so they can’t use them, can’t get the chemicals out. All these restrictive laws.

“The law of the land is now what the Supreme Court has said, and I think to keep pushing these clinics back into the situation where they wind up like this is wrong. I think that no matter how you stand on the issue of abortion people who make that decision should do it and not have to worry about infection and some butcher like this doing the bad things they do.”

The convicted abortionist was a licensed physician running a licensed abortion clinic.

On Planet Harry such facts are irrelevant to the chosen narrative.

The full column is available online at The Ely Times and the Elko Daily Free Press.

Harry tops even his usual linguistic contortions this week

Harry Reid is a walking, talking, brightly glowing example of muddled and utterly non sequitur thinking. Every time he opens his mouth he commits felonious assault on logic and reason, snatching conclusions out of the static.

During one his most recent fulminations, Reid rhetorically asked, “Where was (Republican) outrage when groups from the other side were under attack?” He specifically mentioned IRS probes during the Bush administration of the NAACP, Greenpeace and the All Saints Episcopal Church in Pasadena, Calif. “What the IRS did was inexcusable but this is not the first time we have seen this,” Reid was quoted as saying.

All three of those probes were initiated by complaints filed with the IRS that the groups were violating their tax-exempt status by engaging in partisan politics or, in the case of Greenpeace, money laundering. After several years, far too long admittedly, all three were cleared. Should the IRS have simply ignored those complaints in Harry’s universe?

Harry Reid on Tuesday. (AP Photo)

It was the IRS that initiated its overly exhaustive questioning of conservative groups seeking tax-exempt status while green lighting liberal groups.

The same IRS leaked confidential IRS applications — including the names of donors — to the liberal ProPublica so it could write exposés on how those groups were misleading the IRS about their political activities.

But it is all the same to Harry.

He also reached the bizarre conclusion that if was the fault of Republicans who blocked passage of the DISCLOSE Act, which would have required private groups to disclose their donors. So, Congress refuses to pass a law Harry wants, that makes it OK for the IRS to do the disclosing? That’s like it is OK for Obama to issue an executive order banning the deportation of illegal immigrants who were brought into the country at a young age because Congress refused to pass the DREAM Act. (In April, a judge ruled Homeland Security “does not have discretion to refuse to initiate removal proceedings” of certain illegal immigrants, but — as with the rulings about the illegal Gulf drilling moratorium, the illegal “non-recess” appointments, the illegal ObamaCare and No Child Left Behind waivers — that’s being ignored by Obama, the press and Harry.)

Reid was quoted as saying “there are shadowy political groups masquerading as social welfare organizations in order to solicit anonymous donations,” which under the laws passed by Congress is legal, but the IRS apparently writes its own laws.

Then Reid said of the questions raised about the lies and cavalier attitude about protecting Americans in Benghazi: “This is about smear politics and nothing else.”

And when Obama and Secretary of State Hillary Clinton and the ambassador to the U.N. were lying about the attack being a demonstation over a video that got out of hand, that was just politics to assure the president’s re-election in spite of his claiming to have al Qaida on the run. That’s OK by Harry. Nor should there be any concern about why a rescue attempt was never made during a seven-hour attack.

Reid also criticized the Department of Justice for grabbing phone records of Associated Press reporters during an investigation of a national security leak involving a foiled plot to bomb a U.S.-bound airliner. “It is inexcusable and there is no way to justify it,” he said of Justice taking the records. (I can’t help but wonder if the real reason for the probe is that it was not the CIA that foiled the plot but MI6, and the leak endangered an MI6 operative.)

This is the same Harry Reid who has been paying lip service to a reporters shield law for years but has somehow has been able to even bring it up for a vote. In 2008 the New York Times quoted a Reid spokesperson as saying: “It is on our to-do list, and we hope to get to it as soon as we can.”

Watch Harry babble on here.

But this might be the dim bulb moment of the week:

Harry should do more walking and less talking.