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.

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)


Uneducated ‘students’ drown out speech on free speech on campus

Students protest a presentation by the American Civil Liberties Association. (Pix by The Flat Hat)

Once again uneducated hooligans used the heckler’s veto to shut down a speech on a college campus. This time, appropriately enough, it was a speech a couple of weeks ago by an ACLU executive about free speech.

Students supposedly linked to the so-called Black Lives Matter movement at the College of William & Mary in Virginia chanted, shouted and held up signs for an hour preventing anyone for hearing the speech by Claire Guthrie Gastañaga, executive director of the ACLU’s Virginia chapter.

The students chanted idiotic slogans such as: “ACLU, free speech for who?” “The oppressed are not impressed,” “ACLU, you protect Hitler, too,” “Blood on your hands,” “Shame! Shame! Shame!” and “Your free speech hides beneath white sheets.”

When students later tried to approach the ACLU speaker after it was clear the speech would not be allowed, the protesters yelled louder and prevented even that conversation.

According to Inside Higher Ed, the college out a statement saying, “We do not want any event to be ended early or shut down because someone disagrees with the views of the speaker or is attempting to prevent speech and questions by those attending. We must be a campus that welcomes difficult conversations, honest debate and civil dialogue. We are reviewing our planning and protocols and taking measures to prevent this from happening again” But the college, citing privacy laws, refused to be specific about what, if any, punishment might to handed down.


Among the more hare-brained comments from an alleged leader of the speech protesters was this: “The ACLU and liberals believe that legality determines morality. Not too long ago, the Constitution dictated that black people only counted as three-fifths of a person. The Constitution cannot be your moral compass. In contrast to the ACLU, we want to reaffirm our position of zero tolerance for white supremacy no matter what form it decides to masquerade in.”

In other words, they will not tolerate intolerance, apparently not having a clue that such tactics cut both ways and can be used against them, too. They apparently totally misunderstand the significance of the concept of free speech as a tool to win an argument instead of a war. Dismissing the precepts of the Constitution simply because its drafters had to compromise on slavery is tantamount to refusing to hear or heed anyone but the pure of heart.

The free speech the students are denying is what has allowed the mindset of the country to evolve over the years. They are fighting for civil rights that were won half a century ago. The instances of abuse are now rare, but the children have taken up a self-defeating argument under false assumptions about a handful of incidents. By gawd, they have seen injustice and it is theirs — to make their petty lives meaningful.

A little education about wise words from more than century prior to the Constitution might be in order:

And though all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter. Her confuting is the best and surest suppressing. … When a man hath bin labouring the hardest labour in the deep mines of knowledge, hath furnisht out his findings in all their equipage, drawn forth his reasons as it were a battell raung’d, scatter’d and defeated all objections in his way, calls out his adversary into the plain, offers him the advantage of wind and sun, if he please; only that he may try the matter by dint of argument, for his opponents then to sculk, to lay ambushments, to keep a narrow bridge of licencing where the challenger should passe, though it be valour anough in souldiership, is but weaknes and cowardice in the wars of Truth. For who knows not that Truth is strong next to the Almighty; she needs no policies, nor stratagems, nor licencings to make her victorious … — John Milton, Areopagitica, 1644, a speech for the Liberty of unlicenc’d Printing

Nor vulgar protesters claiming to already grasp the truth.




Editorial: Survey finds widespread campus intolerance for free speech

Welcome to the coming mobocracy.

It appears we are rearing a generation that already has all the answers, knows what needs to be said and done and will brook no deviation from the preordained norm. Debate is not an option.

In the face of a deluge of anti-free speech activities, including actual riots, on college campuses across the country, Brookings Institution researcher John Villasenor conducted a survey of 1,500 current undergraduate students at the nation’s colleges and universities in order to determine just how well the First Amendment is understood and embraced on campus.

One of Villasenor’s first questions was whether or not “hate speech,” whatever that is, is protected by the First Amendment. Fully 44 percent said it is not, while only 39 percent said it is. A distressingly high 16 percent of college students did not know one way or the other.

These answers came shortly after the Supreme Court ruled in June that a trademark could not be denied simply because it contained a racial slur. An Asian-American rock band had been denied a trademark for its name “Slants.”

Justice Samuel Alito stated categorically: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Apparently not on campus.

The Brookings survey also asked about the acceptability of the so-called heckler’s veto by setting up the scenario that a controversial speaker has been invited to campus and asking: “A student group opposed to the speaker disrupts the speech by loudly and repeatedly shouting so that the audience cannot hear the speaker. Do you agree or disagree that the student group’s actions are acceptable?”

A majority, 51 percent agreed that is acceptable, while 49 percent disagreed. Among Democrats fully 62 percent agreed to 38 percent disagreeing, while only 39 percent of Republicans agreed and 61 percent disagreed.

Perhaps even more disturbing was the next question in that scenario: “A student group opposed to the speaker uses violence to prevent the speaker from speaking. Do you agree or disagree that the student group’s actions are acceptable?”

Nineteen percent called using violence to prevent a speech acceptable, including 30 percent of males.

Villasenor observed, “These results are notable for several reasons. First, the fraction of students who view the use of violence as acceptable is extremely high. While percentages in the high teens and 20s are ‘low’ relative to what they could be, it’s important to remember that this question is asking about the acceptability of committing violence in order to silence speech. Any number significantly above zero is concerning. The gender difference in the responses is also notable.”

The survey also found an incredible ignorance of what the law requires when it comes to free speech. A strong majority of students are under the impression that the  First Amendment requires that an on-campus organization hosting an offensive speaker is “legally required” to ensure the event includes an opposing view.

Not even the FCC still insists on the Equal Time Doctrine.

But 62 percent of college students thought there is — not should be, but already is — a legal requirement to provide an opposing view.

Villasenor found, as should we all, the survey result highly disturbing, especially the fact that so large a faction found violence an acceptable deterrent to speech they find offensive.

“Given these results, what should be done?” Villasenor asks. “First, I think that college faculty and administrators have a heightened responsibility to do a better job at fostering freedom of expression on their campuses. Getting this to occur will be challenging. I expect that if college faculty and administrators were asked the questions in this survey, the results would, at least in broad terms, be similar to the student results presented above. That said, I would hope that results such as these can help spur faculty members and university administrators to think about the importance of creating a campus environment in which students are exposed to a broad range of views, including some that students may find disagreeable.”

(Prediction: In this age of identity politics, the survey will be dismissed simply because it was financed by one of the Koch brothers.)

We must champion free speech before it is lost.

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.

Nineteen percent of college students called using violence to prevent a speech acceptable.

Is it a question of free speech or the content of that speech?

Protesters camp blocks oil pipeline. (AP photo)

Protesters camp blocks oil pipeline. (AP photo)

Federal officials are refusing to kick protesters off federal public land in North Dakota, saying they don’t want to harm their free speech rights.

The protesters are blocking a $4 billion oil pipeline that has been approved for right of way across federal land. There have been violent clashes.

“We don’t have the physical ability to go out and evict people — it gives the appearance of not protecting free speech,” a federal official was quoted as saying. “Our hands are really tied.”

Security guards were injured when protesters confront pipeline workers and police later arrested 21 protesters on charges that include resisting arrest, criminal trespassing on private property and possession of stolen property.

The project was expected to create 8,000 to 12,000 jobs during construction.

Meanwhile, in a federal court in Oregon, Ammon and Ryan Bundy of Bunkerville and five others are on trial for occupying federal property and the judge is refusing to allow them to argue that their occupation was a statement about who should really control the public land.

“The ownership of the refuge is not up for discussion,” the judge one of the attorneys this past week. “Please move on.”

The only violence that took place in that occupation occurred when law enforcement shot to death one of the protesters when he tried to go to a meeting and evaded a road block.

It apparently is not the free speech that is an issue but the content of that speech.

Ammon and Ryan Bundy occupy federal refuge in Oregon. (OPB photo)

Ammon and Ryan Bundy occupy federal refuge in Oregon. (OPB photo)


Your free speech right comes with a hefty price tag these days

They used to say freedom of the press belongs to those who can afford to own one.

Perhaps, we should now say the right to exercise your free speech rights before local government agencies belongs only to those who can afford to pay for sending out public notices.

I learned this the hard way a year ago, and now a Las Vegas resident who wanted to challenge a city decision to allow package liquor sales near his home is facing the price of “free” speech.

In my case, I was trying to pry loose a secret power company contract from the Public Utilities Commission. I was directed to instructions on how to file a petition with the PUC to request that the confidentiality decision be reversed. I was told there would be a $50 filing fee. That’s a bit of scratch to scratch the curiosity itch, but I figured, OK.

Redacted power contract.

I wrote up the paperwork and was assigned docket No. 12-06006 for my challenge to docket No. 09-08020.

I cited the public records law chapter and verse. I cited court case rulings. I argued the public’s right to know how such contracts would impact their future power bills. I thumped on the table.

Weeks later, I began to get voicemail messages while out of town. Apparently I had been sent a letter informing me that the utility commission was going to hear my petition, but first I had to pay for publication of a newspaper public notice. That was the first I heard of that. No one had mentioned an obscure sentence in the 60,000-word Nevada Administrative Code, Chapter 703, that says “public notice to be published in the appropriate newspapers … petitioner shall timely pay the cost of the publication.” Timely meant upfront.

One of the messages was from a lady at the Las Vegas Review-Journal informing me that I needed to pony up $277.84 prior to publication in that one paper alone.

I called and said never mind. I was still out the 50 bucks.

This is what happened to Martin Dean Dupalo, according to a Review-Journal account.

He wanted to fight a zoning change to allow liquor sales near his home.

But Dupalo was told his appeal would cost him $750 in order to send public notices to everyone living within 1,500 feet of the Walmart on N. Nellis Blvd.

“For me it is a poll tax,” Dupalo, a political science teacher, was quoted as saying. “If I want to have a say as a citizen, then I have to pay $750.”

Free speech belongs to those who can afford to round up an audience by sending out public notices.