Daily Archives: April 2, 2021

In a victory for free speech, the rule of law, and common sense, a three-judge panel of the U.S. Court of Appeals for the 6th Circuitrecently ruledthat a philosophy professor at Shawnee State University in Portsmouth, Ohio, could not be forced to use a transgender students preferred pronouns, and that his suit against the university for violation of his First and 14th Amendment rights could proceed.

The courts decision is the first of its kind, and establishes a needed boundary against American cultures new, brutish sexual orthodoxy.

At least within academia, one can no longer be compelled to say things one doesnt believe.

The incident that precipitated this suit occurred in January 2018, when Shawnee State philosophy professor Nicolas Meriwether responded to a male students question during a Socratic dialogue in his political philosophy class by saying, Yes, sir. After class, the student approached Meriwether, stated that he was transgender, and demanded that the professor refer to him as a woman, with feminine titles and pronouns.

Instead, Meriwether offered to use the students last name, or any other name of the students choosing, but politely declined to use the transgender students pronouns. The student became belligerent and promised to get Meriwether fired.

The student then filed a complaint with the university, which launched a formal investigation through the universitys Title IX office. Meriwether again offered various compromises in an attempt to protect his rights of conscience while being respectful to the transgender student, but the university rejected any arrangement other than the use of preferred pronouns, or the elimination of sex-based pronouns altogether (a virtual impossibility in a scholastic setting).

When Meriwether refused, the university formally charged him with a violation of Title IX, claiming he [had] effectively created a hostile environment for the student. The university placed a written warning in Meriwethers personnel file and threatened further corrective actions unless he articulated the universitys groupthink.

Two years prior, in 2016, Meriwether had received a faculty-wide email from Shawnee State leadership, directing all faculty to refer to students by their preferred pronouns. At that time, Meriwether, a devout Christian, had approached his department chair, Jennifer Pauley, with concerns about the policy. Pauley was not only dismissive of Meriwethers concerns,she was patently hostile.

Knowing Meriwether had successfully taught courses on Christian thought for decades, Pauley claimed Christians are primarily motivated out of fear, and should be banned from teaching courses regarding that religion. In her view, even the presence of religion in higher education is counterproductive.

Meriwether was told that even if a professor had moral or religious objections to the use of preferred pronouns, the policy would still apply.

Two years later, Meriwethers spotless record was marred by a disciplinary note, and he was teaching under the threat of further discipline, including suspension without pay or termination, unless he agreed to fall in line with Shawnees pronoun policy.

In November 2018, Meriwether sued the university in Ohio federal court for violation of his rights of free speech and religious liberty under the First Amendment, and violation of his due process and equal protection rights under the 14th Amendment. U.S. District Judge Susan Dlottthrew out Meriwethers lawsuiton Feb. 12, 2020, and among other things, held that a professors speech in the classroom is never protected by First Amendment. Meriwether appealed to the 6th Circuit.

InMeriwether v. Hartop et al., an impatient panel for the 6th Circuit wasted no time with perfunctory legalese or institutional pandering. It cut right to the chase in its frustration with Shawnee States stamping out of debate and open dialogue vis-a-vis its malignant speech policy.

Theopinion, which was written by Judge Amul Thapar and joined by Judge Joan Larsen and Senior Judge David McKeague, begins:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

The district court dismissed the professors free-speech and free-exercise claims. We see things differently and reverse.

The court went on to clarify that theSupreme Court has recognizedthat the government may not compel a speaker to affirm a belief with which the speaker disagrees. It added that courts haverecognizedthat the free speech clause of the Constitution applies at public universities, and that professors do not shed their constitutional rights to freedom of speech or expression at the [university] gate.

Thapar, the first South Asian federal judge in American history, and the son of self-made immigrants from India, seemed hard-pressed in containing his displeasure at the universitys looseness with long-standing judicial principles. Its clear he doesnt take kindly to Shawnee States loutish attempts at conformity.

In relaying a dizzying body of precedent, Thapar stressed that the court has rejected as totally unpersuasive the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.

Simply put, the judge wrote, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship because the need for free exchange of ideas in the college classroom is unlike that of other workplace settings.

In a critical discussion on the use of pronouns themselves, Thapar wrote:

[T]itles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students.

Thats not a matter of classroom management; thats a matter of academic speech Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeones perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity

Shawnee State allegedly flouted [a] core principle of the First Amendment. Taking the allegations as true, we hold that the university violated Meriwethers free-speech rights.

The courts opinion in Meriwether v. Hartop is long overdue comfort to those who refuse to bend the knee on leftist groupthinkthe kind that forces a subjective and manipulable view of one persons self to become a defining reality for everyone else. It is a stake in the ground on behalf of religious dissenters and academic freedom.

Andwith poetic suitability to a Socratic dialoguethe decision reminds us that there are no personal truths, but only truths immemorial: realities that exists independent of our wishes to the contrary.

This piece originally appeared in The Daily Signal.

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The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org

Douglas Storys white supremacist street cred was easy to find. He had a white pride tattoo and a neo-Nazi license plate. In extremist online forums he made ominous, N-word-filled posts about President Obama: If someone puts a 30.06 round into the base of his skull, huh ya think?" The Aryan Nations even booted Story from its website when he sought help for converting his AK-47 rifle into a fully automatic machine gun a federal crime.

But none of that factored into his 2012 sentencing after the FBI arrested him in Virginia for possession of that modified gun. A federal judge blocked prosecutors from discussing Storys white supremacist views, because the First Amendment protects speech, no matter how offensive. Prosecutors could only focus on Storys illegal weapon.

Storys path to a prison cell reveals a common workaround that police and prosecutors use when investigating those who spew white supremacy, far-right or violent anti-government rhetoric. Its easier to send someone to prison for traditional crimes, often involving guns or drugs, than to convince a judge that repulsive hate speech breaks the law.

In the wake of the Jan. 6 attack on the Capitol, federal law enforcement is fending off complaints that it goes easy on white supremacists while monitoring Black and Muslim activists. These frustrations escalated after last months mass shooting in Atlanta that killed six Asian women. Many Democrats, advocates and even some within the ranks of law enforcement have long criticized the FBI and federal prosecutors for not doing more to crack down on white extremists. Some are now pushing again for a law that labels such crimes as domestic terrorism, but civil rights proponents worry that would also increase policing of communities of color.

On Tuesday, Attorney General Merrick Garland acknowledged the increasing problem with hate crimes and ordered a 30-day review of how the Justice Department combats it.

To understand how white supremacists are policed and punished, The Marshall Project analyzed nearly 700 federal prosecutions from 2012 to 2020 that involved what the FBI calls racially and ethnically motivated violent extremism and hate crimes. Academics at the University of North Carolina mined Justice Department press releases for cases involving extremism. Almost all the cases involved White men.

The research did not include Black extremist groups because few exist, said Ashley Mattheis, a communications expert at the University of North Carolina who studies violent extremism and propaganda. Its an incredibly small percentage, she said.

Two-thirds of the 671 cases The Marshall Project analyzed involved gun and drug charges against white supremacist gangs that formed in prison and spread to the outside world. Convictions and lengthy prison sentences were common.

But when we dug into the remaining 194 cases, we found that:

A third of the non-prison gang cases involved guns, silencers and bombs. Given the First Amendment complications, prosecutors say they prefer to bring these easier-to-win criminal charges as a workaround. Often these investigations featured lone wolves flagged for advocating ethnic hatred. If they had a criminal past, federal prosecutors slapped them with charges such as a felon in possession of a firearm. "Federal firearm laws are the Achilles heel of white supremacists," said Tom Brandon, recently retired acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

A quarter of the cases involved threats made online, in person or on the phone but not carried out. The victims were diverse: Tulsas district attorney and his daughter, who are White, received death threats; a Black city council candidate in Charlottesville, Virginia, was pressured to quit the race after a torrent of racist vitriol; a pair of halal grocers in Florida complained that law enforcement ignored threats to blow up their stores.

In a handful of threat cases, prosecutors resorted to other workarounds, such as accusing people of lying on federal job applications or failing to disclose mental health histories to the military.

Our analysis reflects only a portion of the FBIs work: investigations that ended with charges filed. It doesnt include the untold hours agents spend watching people they think could end up breaking the law.

FBI guidelines prohibit launching any investigative activity solely on the basis of someone's race, religion or identity. The guidelines allow agents to explore publicly available information such as social media posts and to do knock and talks unannounced visits where agents ask people to talk voluntarily.

The FBI doesnt release data on knock and talks and other surveillance activity. Nor does the agency share information about its investigations unless charges are filed in court.

We are not seeing that full picture, said Hugh Handeyside, an attorney for the American Civil Liberties Union, which is suing the FBI for surveillance files on Black demonstrators.

Activists in the Muslim community and the Black Lives Matter movement say these knock and talks are terrifying and all too common. The Council on American Islamic Relations said the FBI visited more than 100 Pakistani families across the country in 2016 on the grounds agents were investigating threats to the election, said Zahra Billoo, who heads the organizations office in the San Francisco Bay Area.

The bar for prosecutions is much higher. While Black Lives Matter activists and Muslim communities have sued the government over what they say is unfair surveillance, we found that criminal charges for racially motivated extremism which require probable cause, a much higher standard of proof involved almost exclusively White men.

The Justice Department shared an annual tally of people charged with either a federal hate crime, or threatening someone over state lines whether in person, online or by phone. But that tally also includes incidents that dont involve political or racist motives. A spokesperson said the agency didnt have a nationwide breakdown detailing if a suspect had ties to any racist extremists or anti-government groups.

In a recent letter to Congress, the FBI said half its 120 domestic terrorism arrests for the year ending Sept. 30 were linked to racism, with a vast majority involving people who advocate for the superiority of the White race. And 45% were listed as anti-government or anti-authority.

Tom OConnor, a retired FBI agent who specialized in domestic terrorism for 23 years, said the 2012 case he led against Douglas Story in Virginia was a textbook example of the challenges of investigating white supremacists.

Storys vanity license plate, 14CV88, alluded to a white supremacist slogan and a Hitler salute. He hung out on white extremism forums where he vowed to kill police if martial law was ever declared or if a neo-Nazi race war erupted. Story posted that a 30.06 rifle bullet was his preferred way to remove then-Attorney General Eric Holder, the first Black person to hold the office.

Citing such language, the FBI opened a preliminary investigation, but the threats against Obama and Holder were not specific enough to file criminal charges.

Hes not saying hes going to do something, hes not telling someone else to do something, said OConnor. Hes saying that if someone is shot in the head theyre going to die.

The FBI managed to work around the free speech obstacles after Story posted a message on a neo-Nazi website, wanting to convert his AK-47 to a fully automatic machine gun, a felony that could bring up to 10 years in prison.

An FBI agent posing as an underground gunsmith got the job done, leading to Storys arrest.

But when prosecutors detailed Storys hate speech in court documents, his defense lawyer acknowledged it was inflammatory language, but said it had nothing to do with his client owning a machine gun.

The judge ordered prosecutors not to talk about Storys white supremacist posts or his vitriol toward Obama at sentencing. The judge gave him one year in prison, a sentence OConnor described as a heartbeat.

Story did not respond to requests for an interview, but in an email denied being an extremist. I wasn't some wild eyed white supremacist, he wrote. My arrest, in my head, anyway, I consider a combination of FBI entrapment plus stupidity and naivete on my part.

Former federal officials say workarounds are inevitable because threat cases are hard to win. They are certainly more legally complicated than a gun case or a drugs case, said David J. Freed, the former U.S. Attorney in central Pennsylvania who left the post in January.

His office generally chose to forgo threat charges if there were more typical crimes involving violence or vandalism, Freed said. Prosecutors want to avoid courtroom debates over whether threats were a crime or protected speech. Any responsible prosecutor will know, you are buying yourself a fight, he said.

The Marshall Projects analysis showed that prosecutors generally pursued the most severe winnable charge, usually those involving guns and drugs. At least in one case, however, the opposite happened.

In 2016, Omar Rabbo, a halal grocer in Fort Myers, Florida, was angry that local police wouldnt arrest James Benjamin Jones, a 35-year-old White man who threatened to blow up Rabbos store, according to court records.

Frustrated, the Palestinian immigrant called the FBI; an agent was at his shop within an hour.

When the FBI went to Jones home, a psychedelic mushroom farm and illegal moonshine distillery were in plain sight. State prosecutors slapped Jones with felony drug and alcohol manufacturing charges. He faced up to 20 years in a Florida prison.

Prosecutors had a sure win with the drug and alcohol charges, according to Jones defense attorney, Christopher H. Brown, who described what happened next as the strangest swaps in history. Instead of pursuing the state felonies, the U.S. attorneys office told county prosecutors to drop the case, as part of a deal that let Jones plead guilty to two federal hate crimes instead which Brown saw as a way for the feds to win a hate crime prosecution.

In my personal opinion, the U.S. attorney saw it as a statistical thing, to say in this district we have a threat conviction involving Muslims, Brown said. I did the best interest for my client.

The best criminal justice reporting from around the web, organized by subject

A spokesman for the U.S. Attorneys Office in the Middle District of Florida said the Justice Department is still reviewing facts of the case. The crimes Jones admitted to carried a maximum of 10 years in prison for someone with a long criminal history. That was not the case for Jones, who got probation in the deal.

The plea agreement didnt bother Rabbo, the store owner, who believes Jones was mentally ill and brainwashed by people on the internet. I asked the judge for mercy, he told The Marshall Project.

That was an unusual sentence. Out of the nearly three dozen suspects convicted of federal threat crimes in the eight-year period analyzed, only five were placed on probation. The average prison sentence was 2.5 years, the longest being 10 years.

The Jan. 6 attack on the Capitol reignited a debate over how the country should handle domestic terrorism. There is no official tally of domestic terrorism crimes because there is no law that expressly bans Americans from using or threatening violence for political motives.

After the Charlottesville Unite the Right rally in 2017, Mary McCord, a Georgetown law professor and former federal prosecutor, began urging Congress to create a new criminal charge without increasing police powers. The new law would plainly label racist or extremist plots and attacks as terrorism, which could help thwart future violence, she argued.

McCord pointed to The Base, a violent neo-Nazi group that was building machine guns to trigger a civil war to create a white ethno-state. Prosecutors charged them with firearm violations and harboring an undocumented resident.

"Having crimes that fit the threat you are trying to thwart drives more resources and provides a more appropriate match between the resources and the crime," McCord said. "A statute would say this is a priority."

Proponents also argue a new law would address the lack of consistent punishment when a white extremist threatens to harm someone even high-profile politicians. In recent years a New York man was sentenced to 46-months for threatening to kill Obama and U.S. Rep. Maxine Waters. Yet another New York man got a year in prison for threatening to kill U.S. Rep. Ilhan Omar, who requested mercy in the case.

Civil rights advocates who oppose a new domestic terrorism law argue that it would only increase police surveillance in communities of color.

"The real solution here is certainly not to expand their budgets or their legal authorities, said Ramzi Kassem, a law professor at the City University of New York, referring to law enforcement. Kassem directs the CLEAR project, which provides legal counseling to people targeted by national security investigations.

When asked why she requested mercy for the man who threatened her, Omar said white nationalism poses a serious criminal threat. But we must also understand that no matter how odious these acts are, taking a punitive approach will not rehabilitate white supremacists, she wrote in a statement. Instead of treating this as a purely criminal matter, we must stay rooted in respect for justice and of human rights and of civil liberties as we respond.

Steve Kunzweiler, the district attorney in Tulsa whose family received threats, still feels cheated. As his office prepared to charge a Tulsa police officer who fatally shot an unarmed Black man, a Connecticut resident began to post the online threats. The poster vowed to kill the families of Kunzweiler, the police chief and other investigators.

Kunzweiler hoped that the judge would rule in favor of iron bar therapy, referring to a lengthy prison sentence. Instead, the suspect received probation for using the internet to send threats across state lines.

We are in this world of criminal justice reform, and I guess courts can look at that and say well, it was just words, Kunzweiler said. Yes, it was just words, but those words were directed at me and directed at my daughter.

Correction: An earlier version of this story incorrectly reported the academic specialty of Ashley Mattheis. She has a doctorate in communications.

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Why It's So Hard to Prosecute White Extremists - The Marshall Project

One year into the launch of online classes, the Nackey S. Loeb School of Communications has announced a spring session of first-time topics requested by students.

Eight free online classes of a single session each will run from April 6 to May 4. They include:

-- Finding Facts in a Sea of Misinformation, with PolitiFact Senior Correspondent Jon Greenberg (April 6);

-- Getting More out of LinkedIn, with content strategist Beth LaMontagne Hall (April 7);

-- Smart Marketing: Using Emotional Intelligence to Reach Your Audience, with consultant and coach Liza Dube (April 14);

-- Introduction to Speechcraft, with Toastmasters leader Lorraine Ratchford (April 16);

-- Virtual Meeting Readiness: Setting Yourself and Your Team Up for Success, with facilitator and mediator Sasha Tracy (April 19);

-- Communicating for Social Change Telling a Well-Framed Narrative, with the Frameworks Institutes Moira ONeil, Ph.D. and Kelly Lafamme, MPA (April 21);

-- Listen Up: Starting a Podcast, with National Public Radio producer Jonathan Smith (May 3);

-- Business Writing Basics: Financial Storytelling, with Bloomberg Intelligence editorial team leader Rik Stevens (May 4).

Two online writing workshops also are open for registration:

-- Expressing Ourselves Using Poetry to Tell the Story of our Lives, with writers, poets and publishers Stacy Milbouer and Tom Long (April 24, $50 per person);

-- Are you Ready to Write Your Book? with author and writing coach Kimberly Marlowe Hartnett (April 10, $90 per person, including an individual coaching session with instructor). Both workshops have limited space available.

All Loeb School classes and workshops require advance registration. See full class and workshop descriptions for more detailed information. Register at loebschool.org/register.

The Nackey S. Loeb School of Communications Inc., promotes and defends the First Amendment and fosters interest, integrity and excellence in journalism and other forms of communication by educating students of various ages and providing them with the tools and knowledge to improve their skill. More information can be found at loebschool.org.

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Loeb School announces free spring classes and writing workshops - The Union Leader