Judge blocking Trump immigration order can read minds

That federal judge in Hawaii who issued a temporary restraining order blocking President Trump’s latest executive order on immigration from six Middle Eastern countries can read minds and knows Trump is a liar. He is not temporarily barring immigrants from those countries until proper vetting can take place because they might be terrorists. No, he is banning Muslims and that is religious discrimination and contrary the Establishment Clause in the First Amendment.

Judge Derrick Watson writes:

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” … The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]”… Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order …” (TRO on travel ban)

The judge then quotes Rudolph Giuliani as saying on television that Trump called him and said he wanted a “Muslim” ban and wanted him to help find a way do it legally.

Never mind that Trump and Giuliani may have actually found a way to protect Americans from potential terrorists by avoiding any religious test, it is the ulterior motive that counts and trumps anything else.

Never mind that Giuliani later said he and others focused on “instead of religion, danger. The areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible …” and “not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.”

It was what was in Trump’s heart that counts. Remarks from the campaign trail also were quoted in the ruling.

Never mind that the Establishment Clause was meant to protect Americans from religious discrimination and not everyone in the world, especially where they have a propensity to behead those not of their own religion. Never the fact the immigration order does not affect the countries in which 90 percent of Muslims actually live.

Trump signs new executive order on immigration.

 

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Senator spending money to restrict rights of others to express themselves by spending their own money

Nevada’s freshman U.S. Sen. Catherine Cortez Masto has uncovered a new right in the penumbra of the Constitution. In an email sent out this morning, the senator is seeking support for a constitutional amendment that would reverse the 2010 Supreme Court decision known as Citizens United v. FEC, which said individuals, nonprofits, corporations, unions and other organizations have the right to spend money at any time to express their political opinions under the First Amendment.

Cortez Masto’s email seeks support for a constitutional amendment — called Democracy for All — that would allow Congress and the states to restrict how much money anyone may spend to support candidates or election issues.

Catherine Cortez Masto (Las Vegas Sun pix via USA Today)

Catherine Cortez Masto (Las Vegas Sun pix via USA Today)

In bold-faced type, the email declares: Citizens United defies the very principle on which our country was founded: that every person has an equal say in our democracy.”

An equal say? Sounds like everyone could be restricted to one 140-character Tweet a day.

Never mind that at the time of the Founding, the “say” that constituted the right to vote was reserved for only those who owned property and black males could not vote until after the Civil War and women not until the 20th century. But what’s a little revisionist history when you are begging for contributions so you can spend money to create a constitutional amendment to limit how much money others may spend?

It also sounds like the senator has an ax to grind:

We all remember the disgusting amount of money right-wing groups, like those in the Koch brothers’ network, spent to defeat me in our race for the Senate: over $70 MILLION! And with the Koch network pledging to spend as much as $400 million this cycle, it’s high time we get dark money out of our election process. We cannot continue to allow the deep pockets of special interests to drown out the voices of the average American.

It must not be very dark if she knows how much they spent and how much they plan to spend.

Apparently she is referring to the part of the amendment that would allow lawmakers to “regulate” free speech, which is newspeak for forcing the disclosure of all donors to any given cause.

Actually, Citizens United did not overturn laws requiring disclosing of donors, as witness a dissent by Justice Clarence Thomas:

Now more than ever, (the law) will chill protected speech because — as California voters can attest—“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes.   Thus, “disclosure permits citizens … to react to the speech of [their political opponents] in a proper”—or undeniably improper —“way” long before a plaintiff could prevail on an as-applied challenge. …

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’ ” … Accordingly, I respectfully dissent from the Court’s judgment …

If we may be so bold as to remind those who attribute false precepts to the Founders, the Federalist and Anti-Federalist Papers were penned anonymously by men familiar with the anonymous works of Thomas Paine, John Locke and Montesquieu.

Cortez Masto’s screed concludes:

The level of influence from billionaires and millionaires in our electoral system is unprecedented. And it’s ridiculous. We need to end the unlimited and dark contributions of big corporations and special interests if we’re going to have a democratic process and a government that will truly work for all Americans – not just the richest few. How big your bank account is should not permit you to have a louder voice in our democracy.

Thank you for joining me to help restore transparency and fairness to our democratic system.

¡La lucha sigue! The fight continues!

Catherine

Below this is a button one may click to contribute money, as well as a disclosure: “Paid for by Catherine Cortez Masto for Senate.” How would she like it if her speech were restricted?

The problem is that free speech is not free if the incumbent government satrapy can curtail its dissemination.

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”).

By the way, the amendment has an exception for the press, which happens to be owned and operated by big, powerful, and oft times rich corporations.

Freedom of the press belongs to those who own them.

The Democracy for All amendment:

SECTION 1.  To advance democratic self-government and political equality for all, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2.  Congress and the States shall have power to implement this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

SECTION 3.  Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

 

Trump still disparaging the very document he must swear to protect and defend

trumpflag

Quick, somebody get Donald Trump one of those pocketbook copies of the Constitution and Bill of Rights and read it to him aloud, slowly, starting with, “Congress shall make no law …”

On the campaign trail Trump has repeatedly disparaged the rights contained in the First Amendment and several others.

“We’re going to open up those libel laws,” Trump said in February. “So when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they’re totally protected,” paying no heed to Supreme Court rulings such as Times v. Sullivan, which said public figures such as him had to show actual malice or reckless disregard for the truth to win damages.

He also suggested closing mosques because really bad things happen in them — another First Amendment diss.

Now, this week the president-elect took to his favorite forum, Twitter, to call for jailing and revoking citizenship for flag burners, paying no heed to 1989’s Supreme Court decision in Texas v. Johnson, which declared unconstitutional a Texas law making flag burning a crime or 1990’s U.S. v. Eichman, which did the same for a federal law passed after the Texas law was struck.

Justice William Brennan, who wrote for the majority in both cases, concluded in the Eichman ruling:

We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets … vulgar repudiations of the draft  and scurrilous caricatures …

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.

Someone should read that to Trump, too, though it is more than 140 characters.

The oath of office also exceeds Twitter limits:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” — Article II, SectionN 1, Clause 8

 

 

 

 

Deuling editorials: Right thing to do, wrong way to do it

The New York Times editorial said the Supreme Court’s gay marriage ruling “fits comfortably within the arc of American legal history.”

The editorial continued, “As Justice Kennedy explained, the Constitution’s power and endurance rest in the Constitution’s ability to evolve along with the nation’s consciousness. In that service, the court itself ‘has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.’”

The decision may fit in the arc of changes in attitudes and politics, but it grasped never intended power for five of nine unelected justices.

Justice Atonin Scaliea called it a putsch.

The editorialists at The Wall Street Journal put it this way: “The revolution in mores about gay and lesbian participation in the institution of marriage is among the most dramatic cultural shifts in U.S. history. Justice Anthony Kennedy’s opinion in Obergefell v. Hodges is a declaration of social inclusion whose outcome is welcomed by ever-more Americans. The complication is that the Constitution is silent about marriage and social-policy preferences, which are supposed to be settled by the people and the political branches.”

Nevada voters approved a constitutional amendment banning gay marriage by a voted of 69.6 percent in 2000 and 67.1 percent in 2002. The 9th Circuit Court of Appeals in 2014 struck the amendment as unconstitutional. It is questionable whether it would pass today, if it were on the ballot.

The Washington Post editorial also mentioned changes in attitudes. “Yet the fact that it’s foreseeable to Mr. (Justice John) Roberts that same-sex marriage bans would fall, state by state, to popular pressure shows how far the country has come, and quickly. In states where lower courts had already ordered same-sex marriages to commence, the transition has been generally calm. We expect to see the same maturity and acceptance across the country now.”

The editorialists at Investor’s Business Daily also questioned the power of the court to do what it did. “Do five men and women believe they can rewrite traditions dating back thousands of years with a few strokes of their mighty pens?” they wrote.

“Apparently so. So much for our democracy.”

As I noted before in comments, the ruling opens a new chapter in the interpretation of the Free Exercise Clause of the First Amendment. WSJ also noted as much: “A better response — as practical politics and for civic comity — would be to support laws that protect the conscience rights of religious believers and faith-based institutions that do not honor same-sex marriages. The unfortunate truth is that the political left is rarely magnanimous in victory, and its activists may not be satisfied until the force of government stamps out private values and practices they find deplorable.”

Likewise IBD: “Justice Samuel Alito made plain that the decision ‘will be exploited by those who are determined to stamp out every vestige of dissent.’ Those who continue to believe gay marriage is wrong, he added, ‘will risk being labeled as bigots and treated as such by governments, employers and schools.'”

The five justices have opened a can of worms.

It will be interesting to see how the once libertarian-leaning Las Vegas newspaper opines on this topic, if it does.

 

‘Free speech aside …’?

“Free speech aside, why would anyone do something as provocative as hosting a ‘Muhammad drawing contest’?” The New York Times reporter twitted.

How does one get one’s head around the beginning of that sentence? That’s like saying life, liberty and property aside … A reporter said that?

Two men were killed over the weekend trying to assault with rifles a Garland, Texas, confab that featured a cartoon contest for depictions of Muhammad. That’s what prompted the Charlie Hebdo massacre and assorted other atrocities.

This country values its First Amendment right to free speech and the radicals perhaps now will recognize this country values its Second Amendment rights too.

 

If you plant ‘magic words,’ you’ll have to fight a giant — government bureaucracy

A Carson City judge on July 8 fined Citizen Outreach, conservative nonprofit group, $10,000, plus $7,600 in costs, for not filing campaign expense reports showing its source of funds and ordered the group to file such reports in 30 days.

In 2010 the group sent out mailers criticizing Assemblyman John Oceguera during his 2010 re-election campaign.

The complaint came from Secretary of State Ross Miller.

Anonymous speech that would be banned by Nevada law.

Chuck Muth, president of Citizen Outreach, told the Las Vegas Review-Journal the ruling was expected. “This ruling was by the same judge who had already ruled against us. We asked for reconsideration. He chose to stand by his original ruling. We will now weigh our legal options,” Muth said.

Miller argued the mailers constituted express advocacy “because there is no reasonable interpretation of these communications other than as an appeal to vote for or against a clearly identified candidate on the ballot.”

This is the old “magic words” test from Buckely v. Valeo in which the Supremes said laws could trump the Bill of Rights and restrict communications containing words of express advocacy of election or defeat, such as ‘‘vote for,’’ ‘‘elect,’’ ‘‘support,’’ ‘‘cast your ballot for,’’ ‘‘Smith for Congress,’’ ‘‘vote against,’’ ‘‘defeat,’’ ‘‘reject.’’

I did not realize the First Amendment said Congress shall make no laws abridging free speech unless the speech contains “magic words.”

This suit is similar to one brought by Miller in 2010 against Alliance for America’s Future for airing television commercials in support of gubernatorial candidate Brian Sandoval.

At the time, I wrote, “If you must obtain a government permit to do something, it is not a right, it is a privilege.”

In his restraining order against the Virginia-based Alliance, Judge James E. Wilson Jr. noted early voting was already under way and said, “Irreparable harm will occur to the voters and to the electoral process if broadcasting of the Ad is not enjoined, because voters are being deprived of the information to which they are entitled under Nevada law prior to casting their ballots.”

They are entitled to know who paid for the ads? Pay no mind to the fact the Federalist and Anti-Federalist Papers were written under pseudonyms.

Justice Antonin Scalia explained in a concurrence in the Citizens United case:

“The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

In a partial dissent Justice Clarence Thomas added:

The disclosure, disclaimer, and reporting requirements in (the law) are also unconstitutional. …

“Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information …'”

In a separate case out of Ohio, Justice John Paul Stevens wrote:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”

The voters are the only ones to judge whether to be swayed by any given message and determine whether the message is any less believable because its source is anonymous.

For a thorough discussion of this topic, read Steven Miller’s three-part series, “R.I.P., Publius,” at Nevada Policy Research Institute — Part I, Part II, Part III.