The Weaponization of Free Speech

The Westboro Baptist Church (“WBC”) has a date with the Supreme Court. The Church – better identified as a hate group – is known for its vitriolic protests at funerals of US servicemen and various institutions across the country. The small group, mostly relatives of its founder and pastor, Fred Phelps, preaches a vicious anti-homosexual message. They claim that America’s supposed depravity is continually punished by an angry god – hence their frequent presence at the funerals of servicemen killed in action. They applaud these deaths as evidence of America’s wayward nature.

In the past, the majority of their targets have chosen to ignore the protestors, who have always been in compliance with the proper regulations for assembling. Even so, a few years ago a group of bikers, The Patriot Guard Riders,  – many of whom were veterans themselves – coalesced and began showing up at protests to drown out the hatred with their motorcycle engines.

But one father, Albert Snyder has fought back. After the WBC picketed outside of his son’s, Marine Lance Cpl. Matthew Snyder, funeral in 2006, Snyder launched a lawsuit against the Church. The case is now on the docket to be heard before the Supreme Court this fall.

The case, which Snyder originally won before it was overturned by a Federal Appeals Court, pits Snyder’s privacy against WBC’s claim to First Amendment freedoms. Some legal scholars argue, that as heinous as WBC’s behavior is it nevertheless should be protected as free speech.

This argument, however, is rife with flaws. The right of free speech is predominantly to prevent oppression by the government. It is necessary not to allow sounds to come from individuals’ mouths, but to allow ideas to flourish and prevent those with power from silencing the minority. As has been argued on ANR before, free speech is not a concept that is synonymous with talking but one of expression of ideas.

In this regard, every spoken word is not deemed allowable. Certain speech, such as the classic “fire in a movie theater,” is deemed harmful and thus prevented. The logic behind such restrictions is that by yelling “fire” in a public place physical harm may be caused. However, harm need not be limited to the physical. WBC’s actions indubitably create harm, albeit often of the emotional kind.

The proper role of the government, when overseeing the interactions between individuals, is to serve as a referee to prevent unjust harm, or encroachment by one party on another. Whenever the desires of individuals come into inevitable conflict, the government should have well defined rules as to whose actions have un-righteously harmed the other. In all other instances, individuals should be left to their own devices. American’s possess the right to free speech to limit the government’s ability to encroach on their private domain – to prevent tyranny of the government. But that does not mean the concept of free speech should be weaponized to inflict harm on others. The WBC should be entitled to preach their dastardly views to those who wish to be party. They should not be prevented from having or expressing their opinions. But there is a time and place for any act. When such expression moves into the public sphere and causes intolerable harm, it has crossed a line. Free speech must be coupled with freedom to avoid speech.

If the Supreme Court allows WBC’s actions to stand, it will greatly miss the mark on how America should be structured. To disavow the direct harm that comes from a misappropriation of this right in no way diminishes the concept of free speech, but rather strengthens it. This is not an issue of establishing a slippery slope, as some claim, but one of clearly defining the concept. Without such definition, the concept of free speech becomes a mockery, where any individual can cloak himself in its guise – not to speak but to cause damage. If preventing such damage is not the responsibility of government, then there is little for it to do.

A Supreme Political Scuffle

The Obama-Alito controversy has been gathering steam in the blogosphere and mainstream media. Setting aside the correctness of the Supreme Court’s decision for the time being, there are a number of interesting issues that have arisen. First of all, there is the issue of etiquette and precedence. Second, is the issue of the media’s and the Democrats’ treatment of the scuffle-by-proxy.

During the President’s State of the Union address, Obama criticized a recent Supreme Court ruling regarding campaign financing.  He stated, "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections." (See video at Real Clear Politics). In response, Supreme Court Justice Samuel Alito, one of the justices who voted in favor of the ruling, shook his head in disagreement and apparently mouthed “not true”.  What was "not true" from his perspective is not clear.  According to etiquette, the members of the Supreme Court (SCOTUS) are separated from general politics-as-usual. They and their decisions are never directly attacked and they refrain from displays of political support or disdain.

First, there is room for discussion on whether the historical procedures of etiquette are worthwhile or should be followed. Should the SCOTUS and its decisions be respected and left independent? Or like the majority of our government are they fair game for political attacks? ANR tends to believe that the Supreme Court should maintain a position above politics to assure the objectivity of its decisions. This has historically been the norm, forcing Presidential disagreements to be at most muted and often unsaid. Particularly, this has been true in large, public announcements or speeches such as the State of the Union. Obama clearly breached this etiquette by becoming the first President to attack the SCOTUS in a State of the Union address. If one ascribes to the view that this etiquette is important than Obama’s breach is particularly worrisome. If, on the other hand, one has no concern for such precedent then one should simply shrug their shoulders and move on.

However, this has not been the response of the Democrats or some in the MSM. This brings us to the second point. The Democrats have gone on the attack, targeting Justice Alito for his response. Senate Judiciary Committee Chairman Patrick Leahy, D-VT attacked Alito by stating “There were days when judges stayed out of politics. It would be nice to go back to those days.”  NBC, which spoke to Leahy, supported this storyline in the very title of their article, “Justice openly disagrees with Obama in speech.” NBC’s story focused on how this was Alito’s “Joe Wilson moment”, yet diminished Obama’s greater breach of etiquette.

Now, as said before there is room for debate on the importance of such etiquette; but if anyone is to blame it is Obama, not Alito. Obama was the first to break ‘the rules’. It is only understandable that Alito, who most likely did not expect to be attacked, would momentarily lose his composure. Yes, Alito broke etiquette, but it was in a far less severe and public fashion than Obama. All eyes and ears were on the President; everyone heard what he said. Alito was merely an observer who responded in arguably an unfortunate way.

The Democrats’ response and the very fact that Obama took the unprecedented step of criticizing the SCOTUS displays the outrageous arrogance and rampant populism of the administration. The arrogance comes from Obama’s unrelenting quest to attack anyone and everyone with whom he disagrees, regardless of position, etiquette, or precedent. All of this is in the name of his populist bent, appealing to ‘the people’ as a Washington “outsider”. In this instance it is particularly damning given the history of Presidents (eg FDR) who have had much more serious issues with Supreme Court decisions yet remained mum. If the etiquette is important, Obama is the culprit; if it is not then no one should be to blame. Attacks on Alito are just downright inappropriate.

Firemen-1; Sotomayor and Racism - 0

In its final decision of this session, the Supreme Court overturned Supreme Court nominee Sotomayor’s controversial ruling in the New Haven reverse racism case (See the opinion here: http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf). In a blow to racist preferential policies, the court ruled that basing employment decisions on skin color violates Title VII and is unacceptable.

While the decision did not go far enough in overturning outdated racial policies, it is a huge step in the right direction. It facilitates the creation of a truly color blind America. It also makes it more difficult for the word ‘racism’ to be misused as a proxy for preferential treatment. (See earlier discussion here: http://anewrepublican.blogspot.com/2009/05/what-race-is-your-fireman.html).

The decision is also a blow to Sotomayor, who is looking to be confirmed in the near future. It further emphasizes how out of touch she is with the proper role of the judiciary. Her flippant approach to legislating from the bench and assertions regarding the supremacy of her female, Latina background are further highlighted by the Supreme Court’s decision. The ruling will serve as prime fodder in her confirmation hearings. She most definitely will, and should, be questioned in depth.

Hopefully this decision will lead to a general overhaul of the policies and thought-processes that outline race relations in America. As discussed earlier, (See here: http://anewrepublican.blogspot.com/2009/05/reverse-racism-sotomayor-and-some.html ) it is high time America stops thinking in binary, divisive terms. Decisions based on the color of someone’s skin are racism, any way you cut it. With any luck, through this decision and with the upcoming grilling, Sotomayor will realize that it we are entering a post-racial time. Since she is most likely to be confirmed, one can only hope that she will step out of the 1960s and into modern America.

Reverse Racism, Sotomayor, and Some Firemen

The term “reverse racist” is about a meaningless term as one can get. What’s the difference between a racist and a reverse racist? The artificial distinction seems to imply that someone who is prejudiced against minorities is a racist, while someone who is prejudiced against whites is a reverse racist. But why is a distinction necessary? Racism is racism, pure and simple. If one is discriminatory based on race, it is racism. That’s it.

It seems that the use of “reverse racist” is mired in a philosophy that systematically separates races and automatically defers to the Democrats’ talking points and language. Racism is often an accusation hurled at the right from the left. Whites have historically been pegged as racist (often because they were). However, it is seemingly un-PC to call a minority racist. It touches on some sort of sensitivity to use the language of victimhood for the supposed [historical] perpetrator. So instead, the right soft-toes around the Democrats’ feelings and coins a new term- “reverse racism”.

This is at best inane and worst outright harmful. Racism, to whomever it is directed at, should be labeled as such. By having two terms, the argument is still one of white vs. black- not one between discrimination and non-discrimination. It is foolish for America’s conservatives to give the Democrats free rein to structure the debate around skin color and claim that only one or two groups in America are truly victims. Rather, Republicans need to brand racism propagated against whites not as reverse racism, but simply as racism. It is the same beast.

This is essential to shifting the focus of the equality and discrimination debate in America from one of skin-color to one of tolerance. In this day and age, skin-color should not matter. The so-called Civil Rights movement should no longer be one of emancipation for blacks and other minorities, but one of eradication of race based thinking, regardless of the racial category of the victim. The emancipation movement for blacks has already succeeded. It is high time we recognize this. The Left is very reluctant to do so, as there are a milieu of special interests and politicians (Jesse Jackson, Al Sharpton) whose existence is based on racial tensions. The Republicans only fuel this mode of thinking by acquiescing to Democrat standards of language use.

This issue has been widely prevalent in regards to Sotomayor’s appointment to the Supreme Court. While I would not go so far as to call her a racist, Judge Sotomayor’s decision in Ricci v. DeStefano is clearly racist and discriminatory (See my prior discussion here http://anewrepublican.blogspot.com/2009/05/what-race-is-your-fireman.html). She approved of a system that blatantly and unfairly signaled out (and failed to reward) individuals based on skin color. Republicans have been doing a great disservice by terming it reverse racism. It implies that Sotomayor’s decision does not have the same gravity as it would have if the races of the firemen involved were inverted. In fact, the Ricci decision is as heinous as if New Haven refused to promote any black firefighters simply because of their skin color.

It is time to take charge of the debate. Republicans have to move the focus from the partisan, racial agenda set by the Democratic Party to a new post-Civil Rights conversation. We have to appeal to the notions of equality and fairness. We have to seek to eradicate racism and raced-based thinking. We have to stop automatically terming any differences between blacks and whites as racism and focus on true discrimination- regardless of who it is targeted at. Defining the debate not as skin-color versus skin-color, but as discrimination versus non-discrimination will broaden the appeal of the Republican Party to minorities who previously bought the demonized racist image broadcast by the Democrats. Until we do that, the Republican Party will continue to suffer by playing the game under the Democrats’ rules

What Race is Your Fireman?

A landmark reverse discrimination case, Ricci v. DeStefano, was heard by the Supreme Court on April 22. (See here for a list of relevant documents http://www.abanet.org/publiced/preview/briefs/april09.shtml#071428). The outcome of this case could have a profound impact on the current state of racial policies in America. Hopefully, the Supreme Court will put a dent in the racist affirmative action policies that have become the accepted norm in America.

In short, Ricci v. DeStefano pits white and Hispanic firefighters against city officials in New Haven. The firefighters’ claim is that they were denied promotions due to their race. After a promotion exam yielded a racial disparity, leaving no black employees eligible for promotion, the city tossed out the results of the exam. They bypassed the highest scoring individual (who was white) in favor of promoting a more ‘diverse’ group of firefighters. (See ABC http://abcnews.go.com/TheLaw/SCOTUS/Story?id=7393908&page=1 and MSNBC http://www.msnbc.msn.com/id/30346519 for further discussion).

This is an atrocious overreach of a policy, affirmative action, which is supposedly designed to remove racial inequities and ease America’s history of racial tension. Not only are New Haven’s actions unfair, but they are quite counterproductive. America is supposedly runs on a merit based system. We award promotions, bonuses, and raises to those who have performed well. Gains that are made in spite of merit are frequently disparaged. Look at the criticisms of Wall Street bonuses. Critics of large bonus always argue that the bankers did not deserve them. America operates on nearly every level as a meritocracy.

This is good for a number of reasons. First and foremost it incentivizes. It gives individuals reasons to be good at what they do- and get better. It encourages people to be hardworking and efficient. Secondly, through these incentives it helps to create a better society for all. The best-of-the-best rise to the top, forming stronger and more stable institutions. Most people would agree that they want the most qualified firemen and women leading the fire company. Few people would care what skin color the person has who saved their life. Presumably, New Haven felt this way too. After all, they originally developed and used a merit-based test to decide whom to grant promotions too.

However, this all fell apart when, for some reason, the racial makeup of the fireman did not match up with the merit-based hierarchy. It is unclear why the city felt the need to place racial diversity over merit. One possibility is that they believe the system would be much better with a broad swath of races at every level. Alternatively, they were overly concerned of charges of racism by the minorities who scored at the bottom of the exam. In order to avoid the standard litigation that would result if no blacks were promoted, New Haven probably felt that an affirmative action program was the safest recourse.

Unfortunately, this is far too common a problem in our society. We have moved far in the past forty years from a society steeped in racism. Much of this is because brave men and women fought against injustices that prevented people from rising, despite their merit. However, as we achieved this great success, we rapidly moved into overreach. Proponents of affirmative action are not looking to have equal access based on merit, but rather a greater number of ‘minorities’ present at higher levels. This is simply based on skin color. We are now too often left with an unfortunate reverse discrimination such as what we see in New Haven. Black individuals were promoted not because they were more qualified, but because they had better skin color. This is turning the corrupt system, prevalent in America prior to the 1960s, right on its head.

This is absolutely unfair. Just as the pre-Civil Rights system was unfair to blacks, this system is unfair to whites. Martin Luther King and his ilk fought for justice and equality, not a new color-coding of the system. Unfortunately, we have become so hypersensitive to discussions of race that we are unable to have open discussions about it. This allows bullies, such as Al Sharpton, to push their partisan, self-interested agendas with little impedance. Any arguments to the contrary are dismissed as racism.

This non-merit system is disastrous for our country. Not only does it give disincentives to work (after all why would I work hard if I know I am just going to passed over for promotion because my skin color is wrong), but it creates sourness and discord between Americans. The Civil Rights movement’s aim was to create reconciliation between the races (this is why MLK succeeded as its leader and not Malcolm X). We have swung the pendulum to the middle; we need to stop it from swinging too far to the other side.

Everything should be based on merit. Race should not be a consideration in the hiring, firing, and promotion process. There may very well be a reason behind the discrepancy in the scores of blacks, whites, and Hispanics on the New Haven promotion exam. We need to investigate why blacks performed worse. However, simply ignoring the reason for this discrepancy and covering up a possible deeper problem is not the answer. Affirmative action is not a solution, but a purposeful self-blinding. It prevents us from seeing the solutions to real problems; and frustrates America’s forward progress. Hopefully, the Supreme Court will take the steps necessary to end such practices.