Category Archives: Free Speech

September 16, 2020 | :

Last Wednesday, the U.S. Department of Education issued its final rule on religious liberty and free inquiry, which details protections for faith-based institutions and religious student groups at public universities and seeks to bolster campus free speech.

The rule reflects and sometimes contradicts a fraught, growing body of case law about religion and free speech in higher education.

Education Secretary Betsy DeVos

The final rule, which came after 17,000 public comments, requires universities to give equal treatment to religious student groups, which means equal access to university facilities, recognition and funding from student fees, among other things. The rule also defines what it means to be a religious higher education institution so that these schools can continue to be officially exempted from adhering to Title IX where it conflicts with a religious creed. Plus, it reaffirms that these institutions can benefit from department grant programs, so long as the funding isnt going to religious instruction, worship or proselytization.

Meanwhile, if a public university violates the First Amendment, thats grounds for the department to withhold federal cash, but only if the university receives a judgement against it in a state or federal court. Private universities can face the same repercussions if they violate their own institutional policies on freedom of speech and academic freedom.

This administration is committed to protecting the First Amendment rights of students, teachers, and faith-based institutions, said U.S. Secretary of Education Betsy DeVos in a statement. Students should not be forced to choose between their faith and their education, and an institution controlled by a religious organization should not have to sacrifice its religious beliefs to participate in Department grants and programs.

To Dr. Martha McCarthy, presidential professor of educational leadership at Loyola Marymount University, the new rule falls in line with the recent trajectory of U.S. Supreme Court decisions, at least in terms of ensuring government funding can go to religious institutions.

She cited Trinity Lutheran Church of Columbia, Inc. v. Comer, which ruled in favor of a church pre-school receiving federal grant money in 2017, and the 2020 case Espinoza v. Montana Department of Revenue, which sided with parents who wanted to use Montana state government scholarships to send their children to religious schools.

These decisions make the clause separating church and state somewhat second-tier or maybe even impotent, she said. The new regulations conform in spirit with where the court seems to be going.

But the rule also conflicts with the Supreme Court case Christian Legal Society v. Martinez, said Dr. Charles J. Russo, a research professor of law and Joseph Panzer Chair in Education at University of Dayton.

In 2010, the Supreme Court upheld a lower court decision that allowed the University of California at Hastingss law school to deny recognition to a chapter of the Christian Legal Society. The student group wanted an exemption from the universitys non-discrimination policy on the basis that their umbrella organizations statement of faith prohibited sexual activity outside the context of marriage between a man and a woman.

Thats why Russo foresees legal conflict over the new rule.

Im pretty convinced that someone will bring a lawsuit challenging it, he said. I would just about bet that somebody will challenge this.

He personally likes the rule as a basic protective measure for religious student groups. For example, he cited another case, Rosenberger v. University of Virginia, in which the university wouldnt allow a religious student group to publish its newsletter using funding from a student activities fund in 1995. Here, the Supreme Court decided, in favor of the students, that this was viewpoint discrimination.

But regardless, the rule feels like a possible landmine to challenge Supreme Court precedent. Whether one agrees with the Christian Legal Society, the case in California, or disagrees, this certainly overturns it, he added. And I dont think the Department of Education has the authority to do that.

McCarthy predicts another kind of legal challenge. The final rule requires private institutions to follow their own self-determined guidelines on First Amendment rights and doesnt require them to have anti-discrimination policies. That means if, for example, LGBTQ students were barred from a religious student club at a private university, faith-based or otherwise, the institution would still be in full compliance with the rule.

In her interpretation, if [private colleges] have institutional policies that allow discrimination, thats what theyd be judged on, she said. That, to me, does not seem appropriate.

Meanwhile, public universities find themselves in a very difficult position with the impending threat to federal funding, according to Association of Public and Land-grant Universities (APLU) President Peter McPherson.

Freedom of speech on campus is an area of continuing difficulty [and] conflict within the law, he said, and different circuit courts interpret Supreme Court decisions on it differently. He thinks the fear of losing education department grants will force public universities to do one of two things: immediately fold to whoever files a free speech lawsuit against them or pour resources into fighting them because the financial stakes of losing a case are too high.

As a former president of Michigan State University, he thinks First Amendment rights are taken very seriously at public universities, he added, and he sees open and free speech as one of their core values. But putting their federal funding on the line shifts the scale of justice.

Granted, government putting requirements on funding is a common deterrent to encourage compliance to regulations, said Russo. But if the department actually withdrew a universitys federal funding over First Amendment litigation, that would be new.

The ultimate hammer that the feds have against a state, against a school, against an institution is that we can stop funding you if you dont get in line and follow this rule, he said. Im not aware of any case where thats actually happened. [Universities are] going to go to court before they let that happen. I dont think universities are going to roll over and play dead. I think theyre going to question the motivation of the federal government and its action.

Sara Weissman can be reached at sweissman@diverseeducation.com.

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What Does the Education Department's New Final Rule Mean For... - Diverse: Issues in Higher Education

By: Express Web Desk | New Delhi | Updated: September 14, 2020 5:28:59 pmJustice Madan B Lokur. (File Photo)

Questioning the intent behind invoking provisions of the stringent National Security Act (NSA) and Unlawful Activities (Prevention) Act (UAPA) against students and civil society members, former Supreme Court judge Justice Madan B Lokur Monday said the Centre is using an iron hand to curb free speech.

Addressing a virtual discussion on the Freedom of speech and judiciary, in the context of lawyer Prashant Bhushan depositing a fine of Re 1 in a contempt of court case, he was quoted by Live Law as saying, State is using an iron hand to curb free speech. Suddenly you have a lot of cases charging people with sedition. Common citizen who say something are charged with sedition. Already 70 cases of sedition this year.

Citing the example of Dr Kafeel Khan, who was recently released from jail after the Allahabad High Court quashed his charges under the NSA, Justice Lokur said his speech at a protest against the new Citizenship Act was misread. The Court said his speech was promoting national integration and unity, he added.

Justice Lokur said another method by which the State curbs free speech is by crackdown on critical opinions by charging as spreading fake news. He cited examples of journalists reporting about Covid-19 cases, lack of ventilators etc. with fake news provisions.

Another method is the misreading of the statements to attribute motives. This happened in the case of Prashant Bhushan, Justice M B Lokur says. I believe he had no intention to break the judiciary. But his statements were misread, Justice Lokur said.

He further said students and activists are put under jails by misreading their dissenting voices to invoke UAPA against them.

The former SC judge expressed concern about preventive detention being used rampantly. On the other hand, you have people who talk about violence, about breaking up things nothing happens to them.

Noting that over 3 crore cases are pending before the courts, Justice Lokur also said that the judiciary needs to prioritize its concerns and there is a need to increase transparency within the judiciary.

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State using sedition as iron hand to curb free speech: Justice Lokur - The Indian Express

Conservative radio host Dan Bongino has acquired an equity stake in the online video-sharing platform Rumble as a challenge to YouTube in the free speech arena.

"We need a home," Bongino exclusively told the Washington Examiner. "We need somewhere to go where conservative views won't be discriminated against." Bongino with over half a million subscribers on YouTube cites 80 percent of his daily episodes on The Dan Bongino Show have been demonetized for its conservative content. "I'm sick of it, and I wanted to do something about it."

On Monday, Bongino plans on airing The Dan Bongino Show in an exclusive window daily on Rumble before sharing to his YouTube channel.

The Dan Bongino Show is ranked the 12th most popular podcast on Apple Podcasts, podcastinsights.com lists.

According to Rumble's website, the streaming service "provides video creators a way host, manage, distribute, create [over-the-top] feeds and monetize their content."

"YouTube is crushing conservative voices. I'm not going to sit around and take their bullsh*t anymore," Bongino tweeted ahead of the announcement on Wednesday. "They think alienating & discriminating against major content producers is a long-term business plan. Its not. Ill have a big announcement about this fight on my show tomorrow."

Backing words with action is in Bongino's playbook. This endeavor follows the successful launch of The Bongino Report, a steadfast alternative to The Drudge Report's now-liberal leaning news aggregator.

Bonginos investment in Rumble further characterises his trend of backing Big Tech alternatives. In June, the conservative media head partnered with Parler to fire back at censorship on Twitter.

In the competitive social media market, Bongino has been champion of independent underdogs, using his loyal base to drive traffic away from the mainstream and towards dark horse mediums circulating new ideas and free thought.

"Ive decided its time to fight back against the Tech Tyrants. Im beyond fed up with the censorship and bias of Twitter and Facebook and Im not going to stand back and watch as they target us," Bongino wrote at the time.

More here:
Dan Bongino becomes part-owner of Rumble, a free-speech friendly alternative to YouTube - The Post Millennial

"Someone can reserve their right to an opinion, but I reserve my right to call that opinion the garbage that it is."

Freedom of speech is a beautiful thing. It allows each person to express their ideas freely, without fear of reprisal. What doesnt it do? Protect us from having another person call our ideas garbage! (If a group, corporation or government did so, that might be considered censorship another story).

So, loosely in response in to Kelly Kerrs Aug. 12 letter, No one deserves to be personally attacked for writing an opinion, I agree with the statement of avoiding personal attacks when writing or responding to a letter. However, in regards to mask-wearing, a lot of people who may be fine, upstanding citizens otherwise have very dumb opinions!

Dumb opinions are open to being called out at any time, but are especially vulnerable when it comes to this respiratory pandemic. Almost everyone can wear a mask to no ill effect. Oxygen levels dont deplete. You dont re-inhale carbon dioxide. Its not an affront to human rights.

Compare two other well-known failsafes in our society: vaccines and seatbelts. There is an extremely small number of people who really, really, really cannot have a vaccine. So the rest of us vaccinate to help give that person protection they wouldnt otherwise have. There is, however an increasing number of people who refuse to vaccinate, even though they can do so safely. This behaviour should be pointed out for the reckless one that it is! Compare it to seatbelts. Would any of us accept the argument: I dont need to wear a seatbelt ... I know better. My Body, My Choice!? Well, it sounds silly doesnt it? If a person crashes their car, flies out of the seat, and that car continues on to run someone else over, it was only their body now, was it?

To compare to vaccination, there is an infinitesimally small number of people who shouldnt be forced to wear a mask, even though it probably wouldnt hurt. However, there is, again, that increasing number of people who are sheep to use their own words against them and believe any content they read online, and think they shouldnt wear a mask. Who are the sheep? The ones who read, and parrot word for word, alternative slop from crummy, easily-debunked websites, or the ones who understand and respect science?

Someone can reserve their right to an opinion, but I reserve my right to call that opinion the garbage that it is. May freedom of speech persist!

Damon Davies, St. Albert

Read more here:
LETTER: Free speech means freedom to call out bad opinions - St. Albert Today

from the not-great,-bob dept

As was rumored late last week, the White House is, in fact, nominating Nathan Simington to the FCC, taking over the seat of of Mike O'Riely, whose nomination was withdrawn just days after O'Rielly expressed his strong support for the 1st Amendment and made it clear what he thought of idiots calling for the government to force websites to host content:

The First Amendment protects us from limits on speech imposed by the governmentnot private actorsand we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way. Like it or not, the First Amendments protections apply to corporate entities, especially when they engage in editorial decision making. I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech defenders. It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action. These individuals demean and denigrate the values of our Constitution and must be held accountable for their doublespeak and dishonesty. This institution and its members have long been unwavering in defending the First Amendment, and it is the duty of each of us to continue to uphold this precious protection.

While there are many things we've disagreed with O'Rielly about, on this one, we agree 100%. And, the thanks he gets is effectively being fired by the President... and then replaced with someone who appears to believe the exact opposite.

Simington is apparently the guy who wrote the utterly nonsensical, blatantly unconstitutional Executive Order that President Trump signed after he got mad that Twitter placed two fact checking notices on his dangerous and misleading tweets.

Note the situation here. Twitter (and the rest of the internet) is now being punished for providing more speech. This is, of course, what people like Simington like to claim they support. But when it comes down to reality, they seem to want to just force the internet to host the speech of their friends, and never to do anything such as present counterarguments. On top of that, they wish to force private companies to host speech they do not support and do not believe in. All of this is unconstitutional.

Yet, now the author of this nonsense gets rewarded with a potential FCC Commissionership.

It's not clear if the Senate would find the time to do confirmation hearings before the election, but there's a decent chance that now rather than there being just one (Hi, Brendan Carr) FCC Commissioner who relishes using the power of the FCC to punish companies he doesn't like, we'll have two FCC Commissioners who have abandoned all pretenses that the Republican FCC Commissioners support the 1st Amendment and favor a "light touch" regulatory regime. They seem to only favor that for the telcos so many FCC Commissioners end up going to work for after leaving the FCC. For internet companies? They seem to think the opposite.

Considering Simington's direct role in writing the executive order, and then working at NTIA while it crafted the petition for the current FCC review of Section 230, you would think that, should he actually be approved by the Senate, he should at the very least recuse himself from this particular matter. But, given this particular administration and their unwillingness to actually obey the law and follow the rules when it comes to "owning the libs" or whatever their motivation is, it wouldn't surprise me to see him take part in any vote.

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Filed Under: fairness doctrine, fcc, mike o'rielly, nathan simington, section 230, speech police

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Trump Nominates Guy Who Wants To Police Speech Online To Be The Next FCC Commissioner - Techdirt

For all the hand-wringing over the supposed demise of free speech in this most savage season of politics and social upheaval, expression has never been more uninhibited or robust. I just checked the vitals of the First Amendment and, while its getting a good workout, its just fine.

Turns out, nobody is stopping anybody from saying anything, no matter how brilliant and thought-provoking, or how dirt-stupid and inflammatory. Quite to the contrary, were expressing ourselves abundantly, and in most every medium imaginable.

Its there in the chants and placards and banners of protesters and counter-protesters who have taken to the streets after the police killing of George Floyd. Its pervasive across the cable-news world. Its spray-painted onto monuments and buildings and carefully stenciled in bold, bright, yellow-orange paint on prominent streets in major U.S. cities. It dominates Twitter, YouTube, Facebook, Instagram and any other social media platform that may have emerged in the past 72 hours. Its present in blogs and op-ed pages, virtual and print.

Were definitely having our say. Flash floods of facts real and alternative as well as ideas and opinions wash into the marketplace of public thought every day, inundating gatekeepers and fact-checkers. In an untamed frontier environment for free expression, the only law seems to be the survival of the loudest and angriest.

Also on the rise is a mistaken belief that free speech is somehow speech free of consequence. Its not: never has been, never will be.

The First Amendment protects us from prior restraint against our right to speak freely. It doesnt confer immunity against adverse reactions and being challenged over the content of that expression. In 2020, the wrong words can destroy businesses, reputations, jobs, family finances and more with breathtaking speed that was once unimaginable.

In the early generations of the Republic, say or publish something false or defamatory or even unfriendly and it might provoke lengthy rebuttals in the form of treatises or pamphlets, lengthy oratorical condemnations, perhaps a fistfight or even a duel with pistols. The 20th century ushered in a more civilized (and litigious) society increasingly inclined to treat hostile speech as torts and resolve them in court.

The speed, breadth, access and portability of todays instantaneous digital forums has hopelessly outrun those legacy forms of redress. Modern retribution for slights, real or perceived, is increasingly taking the form of going after an offenders home or livelihood. Businesses or employers are affected. Phone numbers, home addresses, email addresses are published in a punitive new tactic known as doxing. Occasionally, protests form outside places where targets live and work.

Each days headlines bring fresh examples. Longtime Cincinnati Reds play-by-play announcer Thom Brennaman was suspended last week for an anti-gay slur made unwittingly on a hot mic. Stuart Baker, who uses the stage name Unknown Hinson, was fired a week ago as a voice actor on the raunchy cartoon series Squidbillies and sponsors dropped him after a racist and misogynistic social media rant against Dolly Parton for supporting Black Lives Matter. Liberty University president Jerry Falwell Jr. is on an indefinite leave as chancellor and president of the Lynchburg-based Christian school at the request of its governing board over his since-deleted social media post of a photo himself arm-in-arm with a young woman during a yacht party, both with midriffs bared and trouser zippers partially lowered.

After Adult Swim, the cable channel that airs Squidbillies, terminated Baker, he was anything but contrite, returning to social media to profanely excoriate those who had called him out, concluding with Ill remember you bastards.

Losing a title or livelihood is harsh and increasingly commonplace the rules of engagement for the zero-sum game that American social interaction has become. Those trapped by their words or images bitterly complain that their free speech rights are being vioalted, knowing full well that speaking freely is what put them in the predicament. Their hurt and anger is really over the fact that those injured or aggrieved are fighting back with free speech, reaching the eyes and ears of decisionmakers with institutional and business reputations to protect and the power to sever anyone who is a threat.

Some argue that such a dog-eat-dog construct is an appropriate application of a self-correcting marketplace, laissez faire taken to its ultimate conclusion. There is sometimes a satisfying sort of instant justice to it. But when done outside a thorough deliberative process, it gives rise to a corrosive vigilantism more suited to a dystopic, neo-noir future world.

The dangers of such an environment are considerable. It overwhelmingly favors the prevailing national mood and punishes those holding dissenting views more harshly with little or no due process. Nor does it apply equally: Donald Trump cruelly mocked a handicapped journalist, exhorted a hostile foreign power to undermine his election opponent and lewdly boasted of his unwanted advances against women. Any of those would have destroyed most careers, yet Trump was elected president.

What has atrophied and teeters at the brink of death isnt free speech, its responsibility and civility. America is well along the path of deteriorating from one nation under God, indivisible into a collection of insular tribes which hold rigid, unquestioning ideologies and allegiances; which are sustained by an unceasing, self-selected flow of propaganda, and; which are bereft of empathy, understanding or the benefit of the doubt. They are silos where conformity prevails and conflict supplants conversation with those on the outside.

It is a dangerous and unsustainable direction. Free speech cant long survive untethered from responsibility and civility.

Without responsibility, a cynicism takes hold that erodes all trust. Institutions with high standards and proven records of veracity in reporting on vital public issues are delegitimized in the public mind as fake news until their standing is, to many, comparable to that of the vile conspiracy fictions of QAnon or foreign troll shops.

Without civility, weve lost even the motivation to view fellow Americans as allies worthy of partnership in this continuing experiment in informed self-government. When we see opponents as not just holding different ideals but as malevolent, the motivation is to conquer and prevail rather than to listen to one another, to consider fact and evidence, to find consensus on truths we still hold to be self-evident and, from that, prudently chart an agreeable best future for our country.

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Free speech is not free of consequence. Never has been. Never will be. - Virginia Mercury

At the very least, Syracuse Universitys decision to place a professor on administrative leave for referring to COVID-19 as the Wuhan Flu and the Chinese Communist Party Virus demonstrates the administrations oversensitivity and willingness to fold under pressure from the speech police. At most, it represents SUs zealous crackdown on free speech.

In their joint statement emailed to the SU community on Tuesday, Dean of the College of Arts and Sciences Karin Ruhlandt and Interim Vice Chancellor and Provost John Liu pillory one of their own staff members for his bold decision to place these terms in his syllabus.

Racist, xenophobic, bigoted and hateful are the allegations the two administrators circuitously levy against this professor.

So its hateful now to attribute to an illness the name of the geological region where it originated? In that case, infections like Ebola, West Nile Virus, Lyme disease, and Zika (just to name a few) need renaming as well.

Naming illnesses after places is time-saving and allows for greater distinction between similar diseases. While examples do exist of highly distasteful disease naming-schemes, like AIDS at times referred to as gay-related immune deficiency, the naming process is almost never intended to humiliate or shame a group of people.

In all fairness, very few people likely desire to have their neck of the woods be associated with disease and death. Folks who share names with hurricanes are frequently reminded by meteorologists not to take it personally. Their justification? More easily recognizable storm names generate greater public awareness: more lives saved.

Nevertheless, SU administrators are not interested in reasonable explanations. They have, instead, decided that labeling COVID-19 after the totalitarian regime that actively suppressed life-saving, early reporting isnt a righteous calling-out of a malicious government but an act of vicious racism.

How many lives and livelihoods could have been saved had the Chinese government sounded the alarms in December when cases of this new virus started piling up? Blood is on the hands of the Chinese government, but dont let SU administrators catch you acknowledging that reality.

Published on August 25, 2020 at 10:43 pm

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Opinion | Putting professor on leave is a crackdown on free speech - The Daily Orange

Protests continue in Kenosha, Wisconsin, where police shot an unarmed Black man in the back seven times as he was getting into his car, leaving him paralyzed from the waist down.

Jacob Blake was reportedly breaking up a fight before police shot him, and the shooting was witnessed by his three young children. On Tuesday, the situation escalated further when at least one white gunman opened fire on a crowd of Black Lives Matter protesters.

Two people were killed, and a third was injured, as police continued a violent crackdown on protesters demanding justice for Blake. We speak with Wisconsin Lieutenant Governor Mandela Barnes, who says the police response to Blake was completely unjustified.

Theres no way that any officer could look at that video and say that thats the way policing should happen, he says. We need police departments, sheriffs departments to acknowledge that there is a real problem in the culture of policing.

Democracy Now! produces a daily, global, independent news hour hosted by award-winning journalists Amy Goodman and Juan Gonzlez.

Our reporting includes breaking daily news headlines and in-depth interviews with people on the front lines of the worlds most pressing issues.

On DN!, youll hear a diversity of voices speaking for themselves, providing a unique and sometimes provocative perspective on global events.

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Two Shot Dead in Kenosha as Armed Militias Confront BLM Protests over Police Shooting of Jacob Blake - Free Speech TV

Among the encroachments on Miltons three supreme liberties contained in Humza Yousafs Hate Crime Bill is a cloturing of the debate on gender identity and the law. Proposals to remove medical expertise from the gender recognition process have either stalled or been shelved, but not before their radical scope prompted a lively dispute about the ethics of gender identity, sex-based rights and the freedom to dissent. That freedom will be meaningfully reduced in Scotland if the Hate Crime Bill becomes law because it is a piece of legislation that begins from the position that all legitimate debate has already concluded.

The Bill creates an offence of stirring up hatred against a list of protected characteristics, including transgender identity. That term was defined in Scots law a decade ago in the Offences (Aggravation by Prejudice) (Scotland) Act 2009 as referring to:

transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004, changed gender, or any other gender identity that is not standard male or female gender identity.

The explanatory notes to the Hate Crime Bill advance a new, more expansive definition that includes:

those who identify as male but were registered as female at birth, those who identify as female but were registered as male at birth, non-binary people and cross-dressing people.

Not only is this a much broader definition than that of gender reassignment in the Equality Act, the Hate Crime Bill defines its terms in opposition to those of the 2010 Act, with the accompanying notes specifying that transgender identity:

does not only refer to people with a Gender Recognition Certificate or who have undergone, are undergoing, (or propose to undergo) medical or surgical interventions.

This is a Polonian definition: to thine own pronouns be true. Identifying themselves along these lines may make life easier for transgender people, and who would object to that? But a law that adopts such arbitrary and subjective parameters - and provides for custodial punishments for offending against them - is a tripwire pulled tight around personal and expressive liberty.

Murray Blackburn Mackenzie (MBM), independent and respected analysts of Scottish public policy, warns that a failure to clarify what is meant by this term is likely to add to the already substantial risks around freedom of expression. MBM notes that, while the Bill sticks to broad themes, much more specific definitions are already in use by bodies such as Police Scotland and NHS Lanarkshire, and in both cases are:

grounded in a persons internal feelings, and specifically in a belief in the presence of a gender identity which exists innately and separately from physical sex, rather than being related to any observable behaviours or physical traits.

That is a policy analysts way of saying that everyone is making it up as they go along.

SNP justice minister Humza Yousaf is effectively adopting a Potter Stewart test for what constitutes stirring up hatred on the basis of transgender identity. The approach seems to be in essence that people (individuals? the police? prosecutors? the courts? juries?) will know it when they see it, MBM concludes. The Hate Crime Bill is legislated vagueness with a seven-year prison sentence attached.

Imprecision is not the cardinal sin of this Bill. MBM warns of a substantial chilling effect on freedom of expression and no wonder. To be prosecuted, a person will not even have to intend to stir up hatred against a group which the law itself cannot define. It will be enough that his behaviour or communications are considered threatening or abusive and that a court deems it likely that hatred will be stirred up. If this cascade of caprice becomes law some, perhaps many, holders of controversial or dissenting views will conclude that it is safer to simply shut up than risk arrest, prosecution and even imprisonment.

Ever since the Scottish Governments campaign to legislate self-identification stalled, gender-critical feminists have been on alert for attempts to introduce these changes by the back door. The Hate Crime Bill gets closer than any other measure to jimmying the lock. If it passes as drafted, the potential chilling effects on debate about gender and identity will be such that some aspects of self-identification are achieved by default. Who will dare write or say that transwomen are not women when it could bring, at the very least, a visit to your home or workplace by police? Who will insist that sex-reserved spaces be reserved on the basis of sex when there are activists out there just waiting to experience your policy as threatening or abusive? Who will object to girls who are boyish or attracted to members of the same sex being told they are trans when a fellow teacher or medic or social worker might pick up the phone and report your heresy as hate speech?

No people can consent to be governed by such an insidious and repressive law and still be counted among the freedom-valuing nations of the world. I tend to think that, rather than being motivated by conscious contempt for liberty, Humza Yousaf is so enraptured by the ascendant ideology of coercive progressivism that he cannot see what an almighty shoeing his Bill gives to the liberty to know, to utter, and to argue freely according to conscience. Im not sure his intentions are worth a jot, though, when the consequences are so destructive. Yousaf is a Scottish nationalist but while he might believe in independence, he has no regard for freedom.

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Scotland's Hate Crime Bill would have a chilling effect on free speech - Spectator.co.uk

13th November 1953: Members of Supreme Court. Seated, Felix Frankfurter (far left) and William O ... [+] Douglas (far right). Standing, Robert H. Jackson (second from left). (Photo by George Tames/New York Times Co./Getty Images)

Felix Frankfurter was a man of the Left. He wrote often for The New Republic, and he helped found the ACLU. He lobbied the United States to recognize the Soviet Union during the Russian Civil War. He was the foremost proponent of a new trial for the anarchists Sacco and Vanzetti.

While Frankfurter was agitating and organizing as a professor at Harvard Law School in the 1910s and 20s, the Supreme Court was striking down state licensing requirements, consumer-protection rules, and wage-and-hour laws. Like many on the Left of that day, therefore, Frankfurter believed in judicial restraint. Justice Louis Brandeis captured the contemporary progressive attitude in a 1932 dissent. It is one of the happy incidents of the federal system, he wrote, that a single courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.

Brandeiss great ally on the court was Justice Oliver Wendell Holmes, Jr. It was not progressive principle that made Holmes a restrained judge; it was a bullet in the neck in the Civil War. What damned fools people are who believe things, he once told the socialist professor Harold Laski. Although he said it of a pacifist in a case before the court, the line captures how he saw most things, including judging. Oddly enough, the idealistic Frankfurter worshiped the cynical Holmes. A justice willing to uphold social legislation he thought pointless, even ridiculous, was in Frankfurters eyes the pattern of a sound judge. This might explain why Frankfurters own judicial principles would remain fixed as times changed.

And change they did. Frankfurter became a justice in 1939. The next year, on behalf of an 8-1 majority of the court, he declared that the First Amendment has nothing to say about the expulsion from school of Jehovahs Witnesses who refuse to pledge allegiance to the flag of the United States. Local governments must, Frankfurter thought, have the authority to safeguard the nations fellowship. Just three years later, however, in West Virginia State Board of Education v. Barnette (1943), the court voted 6-to-3 to overturn Frankfurters opinion. If there is any fixed star in our constitutional constellation, Justice Robert Jackson wrote for the majority, 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.

Now in dissent, Frankfurter fumed about judges who write their private notions of policy into the Constitution. It must be remembered, he wrote, quoting Holmes, that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. True, but not a very compelling point in a case about forcing schoolchildren to swear an oath against their (and their parents) will.

Shortly after the First World War, in fact, Holmes had started to take a more expansive view of the Free Speech Clause. When men have realized that time has upset many fighting faiths, he explained in dissent in Abrams v. United States (1919), they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas. When it came to free speech, Holmes could use his old philosophical skepticism to justify a new judicial assertiveness. His pivot was driven in part by distress at the persecution Frankfurter and Laski suffered at Harvard for their radical views. Yet Frankfurter himself remained in awe of the Holmes who told Laski, just a year after Abrams, that if the people want to go to hell, a judges job is to help them along.

Frankfurter clashed often with a group of justices, led by William Brennan and William Douglas, who placed little stock in text, precedent, or history. This activist wing became increasingly dominant. Frankfurters hour was pastor, rather, had never come. When Brennan, writing for the court in Baker v. Carr (1962), overturned a raft of precedents on the way to declaring that legislative redistricting decisions can be challenged in court, Frankfurter issued a long and bitter dissent, suffered a stroke, and retired.

Frankfurter complained that the courts hard left produced opinions that were shoddy and result-oriented. He might have added anarchic. In 1968 a man wore a jacket emblazoned with the words F*** the Draft in a courthouse. He was arrested and prosecuted for disturbing the peace ... by offensive conduct. In his final months on the court, John Marshall Harlan wrote the decision in the mans appeal. An heir, in many ways, of Holmes, Brandeis, and Frankfurter, Harlan set a trend for many later conservative justices by evolving on the bench. His opinion in Cohen v. California (1971) declared the protester's conviction inconsistent with the First Amendment.

Because the offensive-conduct statute applied throughout the state, the defendant, Harlan concluded, was not on notice that certain kinds of otherwise permissible speech or conduct would ... not be tolerated in certain places. Harlan dodged the key questionwhat counts as offensive conduct in a courthouseby denying that the law can turn on context or matters of degree. Having thus oversimplified the case (and infantilized every citizen), he was free to ask simply whether a state may ban the use of expletives in public. At that point he could at least have knocked down his straw man with a straightforward no. Instead Harlan offered a paean to vulgar relativism, a tract now remembered mainly for the assertion that one mans vulgarity is anothers lyric. As Robert Bork noted in The Tempting of America, that statement is a challenge to all laws on all subjects. After all, one mans larceny is anothers just distribution of goods.

Does Cohen remain a totem of left-wing free-speech jurisprudence? The courts progressives seem to have reversed gear. Take the courts decision earlier this month in Barr v. American Association of Political Consultants Inc. The Telephone Consumer Protection Act bans almost all robocalls to cell phones. The Act contains an exception for robocalls that seek to collect a debt owed to the federal government. At issue in Barr was whether this carveout violates the First Amendment. While acknowledging that robocalls are widely despised, the court concluded, by a vote of 6-to-3, that the government nonetheless may not engage in content-based discrimination, baselessly favoring some robocalls over others.

Writing for himself and Justices Ginsburg and Kagan, Justice Breyer argued in dissent that robocalls are not vital to core First Amendment objectives, such as protecting peoples ability to speak or to transmit their views to government. Congress, in Breyers view, should have greater leeway to impose ordinary regulatory programs that pose little threat to the exchange of thought. Maybe sobut this is not the outlook on display in Cohen. Say the government prohibits writing political statements on tax returns. According to the Barr dissent, it is hard to imagine that such a rule would threaten political speech in the marketplace of ideas. Dont count on the wing of the court that let a man say F*** the Draft in a courthouse in 1968 to let you say F*** Taxes on a tax form today.

Why has the courts left wing lost its enthusiasm for free-speech absolutism? One factor is the emergence on the court of a right wing that upholds the free-speech rights of corporations. No longer the only ones patrolling constitutional boundaries, the progressives are more careful about loose rights talk.

Another factor might soon come to the fore. If the Left conquers American culture, sheds liberal values, and becomes a force for conformity, will the progressive justices shift in turn? In the case of a child expelled from school for refusing to acknowledge, and renounce, her privilege, would they chastise the wielders of power and discuss the fixed star in our constitutional constellation? Or would they gain a new understanding of Justice Frankfurters belief in the value of making parents accept the training of [their] children in good citizenship? In the appeal of a man charged with offensive conduct for wearing, amid a hostile crowd, a jacket maligning political correctness, would they use Cohen to lecture the easily offended about simply avert[ing] their eyes to avoid further bombardment of their sensitivities? Or might they suddenly see wisdom in the Cohen dissenters claim that absurd and immature antic[s] are conduct rather than speech?

More here:
The Protean Progressive Free Speech Clause - Forbes