Coyote Blog

Anyone who still believes that campaign finance "reform" is really about cleaning up politics rather than protecting incumbents and government entities from challenge and dissent need to read George Will's column this week.

The First Amendment guarantees freedom of association, "the right of
the people peaceably to assemble, and to petition the government for a
redress of grievances." The exercise of this right often annoys
governments, and the Parker Six did not know that Colorado's
government, perhaps to discourage annoyances, stipulates that when two
or more people associate to advocate a political position, and spend
more than $200 in doing so, they become an "issue committee."

As such, they probably should hire a lawyer because even Colorado's
secretary of state says the requirements imposed on issue committees
are "often complex and unclear." Committees must register with the
government; they must fund their activities from a bank account opened
solely for that purpose; they must report to the government the names
and addresses of all persons who contribute more than $20; they must
also report the employers
of plutocrats who contribute more than $100; they must report non-cash
contributions such as lemons used for lemonade, and marker pens and
wooden dowels for yard signs.

McCain-Feingold makes it impossible for me to vote for McCain.  Of course, other such issues make it impossible for me to vote for the other two yahoos either.  Siqh.

Every decade or so, enemies of free speech adopt a new strategy for trying to curtail the First Amendment.  The current effort consists of attempting to define a "right not to be offended", and college campuses are a leading laboratory for this approach (see here and here).

Chris Robinson was recently brought up on trial at the University court for violating this right not to be offended of some of the women at Colorado College (you may notice that this "right not to be offended" seems to be enforced suspiciously asymmetrically, like all speech restrictions).  He has fired back with a marvelous editorial, of which I include one short excerpt:

Hyper-sensitivity in service to a purported greater good became the
justification for an authoritarian lock-down on speech. It's the same
logic every time: the state comes down hard on behalf of "community."
Changing the rhetorical justification only masks the tyranny. The
effect of this on citizens, in the words of John Adams, is "reducing
their minds to a state of sordid ignorance and staring timidity."...

The simple fact that we were brought before a Soviet-style show
trial has already sent a message to campus, and it is a clear one,
namely that every other potential bearer of heterodox views
should think long and hard about expressing them for fear of ending up
in the same situation as us. In order to avoid even the possibility of offending one group or another, nobody outside the "approved" ideological categories will say anything.

This
is precisely the chilling effect that the First Amendment is
specifically designed to guard against, and to sanction it is a
fundamental violation of the mission of this college. Transparently
selective enforcement against ideologically disallowed speech is
categorically the same as those abhorrent thought-control missions
carried out by the Saudi Ministry of the Propagation of Virtue and the
Prevention of Vice, a perfect example of what John Adams called "the
most mischievous of all doctrines, that of passive obedience and
non-resistance." It's Orwell and Kafka, together at last.

Bonus judos to Mr. Robinson for recognizing that as a private institution, Colorado College can legally implement whatever speech restrictions it likes, and so frames the question as an issue of "should it" rather than "can it?"

Gene Nichol of William & Mary has resigned, pointing to the university's opposition of his First Amendment defense of a campus sex workers' show as a major reason for leaving.  Which is all well and good -- I for one compliment him on supporting the speech rights of controversial people and performers. 

However, before we go declaring Mr. Nichol a martyr for free speech, FIRE reminds us that less than six months ago Mr. Nichol spearheaded this far more comprehensive violation of free speech:

This fall, The College of William & Mary launched a Bias Incident Reporting System
"to assist members of the William and Mary community"”students, staff,
and faculty"”in bringing bias incidents to the College's attention." In
its initial incarnation, the system was fraught with constitutional
problems, from both free speech and due process standpoints. The system
initially allowed
for anonymous reporting, providing that "[a] person reporting online
may report anonymously by leaving the personal information fields
blank." The definition
of "bias" was overbroad and encompassed constitutionally protected
expression: "A bias incident consists of harassment, intimidation, or
other hostile behavior that is directed at a member of the William and
Mary community because of that person's race, sex (including
pregnancy), age, color, disability, national or ethnic origin,
political affiliation, religion, sexual orientation, or veteran
status." The homepage
for the system even contained an explicit misstatement about the First
Amendment, stating that the First Amendment did not protect
"expressions of bias or hate aimed at individuals that violate the
college's statement of rights and responsibilities."

...a group calling itself "Free America's Alma Mater" published an advertisement in William & Mary's student newspaper, The Flat Hat,
skewering the new program. "Welcome to the new William & Mary's
Bias Reporting System, where W&M now invites you to shred the
reputation of your neighbors"¦anonymously," the ad read. "Prof
gave you a bad grade? Upset at that fraternity brother who broke your
heart? Did a colleague vote against you for tenure? Now you can get even!!
Anonymously report anything that offends you to the William & Mary
Thought Police at http://www.wm.edu/diversity/reportbias/."

This earlier episode reveals that Mr. Nichol clearly does not believe that all speech is protected.  In this light, the episode with the sex workers becomes one of taste rather than first amendment privileges, a mere quibble over where the censorship line (that Mr. Nichol believes should exist) is going to be drawn.

Which reminds me of the old joke:  A man approaches a beautiful woman at a party, and says "Would you sleep with me for a million dollars?" and she says, "Yes."  He then asks "would you sleep with me for $10?" and she screams "what kind of girl do you think I am?"  He retorts "We already established that.  Now we are just haggling over price."

From FIRE, comes this really encouraging ruling:

Earlier this month, U.S. Magistrate Judge Wayne Brazil partially granted plaintiffs' motion for a preliminary injunction in the San Francisco State University (SFSU) speech codes litigation. Yesterday, Judge Brazil issued his written opinion on the motion, and in so doing struck a devastating blow against speech codes at universities in California and hopefully"”...

Judge Brazil enjoined the university from enforcing both the civility
requirement and a related provision allowing student organizations to
be punished collectively if any group members engage in behavior
"inconsistent with SF State goals, principles, and policies." Judge
Brazil did not enjoin the university from enforcing its prohibition on
"[c]onduct that threatens or endangers the health or safety of any
person within or related to the University community, including
physical abuse, threats, intimidation, harassment, or sexual
misconduct." However, he emphasized that the provision must be narrowly
construed to only prohibit that "intimidation" or "harassment" which actually endangers someone's health or safety,
and explicitly directed the university that the policy "may be invoked
only as it has been construed in this opinion." This limiting
construction prohibits the university from interpreting that provision
broadly to punish constitutionally protected speech (since the vast
majority of speech that actually endangers someone's health or safety
is not constitutionally protected).

Here are a few excepts from the Judge's decision:

It is important to emphasize here that it is controversial expression
that it is the First Amendment's highest duty to protect. By political
definition, popular views need no protection. It is unpopular notions
that are in the greatest peril "” and it was primarily to protect their
expression that the First Amendment was adopted. The Framers of our
Constitution believed that a democracy could remain healthy over time
only if its citizens felt free both to invent new ideas and to vent
thoughts and feelings that were thoroughly out of fashion. Fashion, it
was understood, is an agent of repression "” and repression is an agent
[of] democracy's death....

There also is an emotional dimension to the effectiveness of
communication. Speakers, especially speakers on significant or
controversial issues, often want their audience to understand how
passionately they feel about their subject or message. For many
speakers on religious or political subjects, for example, having their
audience perceive and understand their passion, their intensity of
feeling, can be the single most important aspect of an expressive act.
And for many people, what matters most about a particular instance of
communication is whether it inspires emotions in the audience, i.e.,
whether it has the emotional power to move the audience to action or to
a different level of interest in or commitment to an idea or cause. For
such people, the effectiveness of communication is measured by its
emotional impact, by the intensity of the resonance it creates.

How is all this relevant to our review of the University's
civility requirement? Civility connotes calmness, control, and
deference or responsiveness to the circumstances, ideas, and feelings
of others. ["¦] Given these common understandings, a regulation that
mandates civility easily could be understood as permitting only those
forms of interaction that produce as little friction as possible, forms
that are thoroughly lubricated by restraint, moderation, respect,
social convention, and reason. The First Amendment difficulty with this
kind of mandate should be obvious: the requirement "to be civil to one
another" and the directive to eschew behaviors that are not consistent
with "good citizenship" reasonably can be understood as prohibiting the
kind of communication that it is necessary to use to convey the full
emotional power with which a speaker embraces her ideas or the
intensity and richness of the feelings that attach her to her cause.
Similarly, mandating civility could deprive speakers of the tools they
most need to connect emotionally with their audience, to move their
audience to share their passion.

In sum, there is a substantial risk that the civility requirement
will inhibit or deter use of the forms and means of communication that,
to many speakers in circumstances of the greatest First Amendment
sensitivity, will be the most valued and the most effective.

Wow!  This is fantastic, and aimed right at University speech codes that try to ban any speech that offends someone [a standard that tends to be enforced unevenly, typically entailing prosecuting only those students who offend people who are like-minded with the school's faculty and administration.

 

Every once in a while, good sense prevails, as in the case of a silly Arizona law intended to prevent people from using the names of dead soldiers as part of a criticism of the war.  As I wrote then,

This theory is absurd.  Printing it on a T-Shirt and selling it for
money no more converts this into commercial speech than printing
Maureen Dowd's column on paper and selling it for money makes her
editorials unprotected.

I wondered at the time if this would make Pat Tillman football jerseys (very popular here) illegal.  Fortunately, a preliminary court ruling seems to bring some good sense to the table.

The T-shirts don't fit within the "commercial speech" doctrine,
under which commercial advertising gets reduced First Amendment
protection "” the T-shirts aren't advertising (except insofar as the
cover of any work, such as a book or a magazine, advertises itself),
but rather speech sold for money. And the fact that speech is sold for
money doesn't strip it of protection (whether it's a book, a movie, or
a T-shirt). Even the advertising for the T-shirts is fully protected,
the court concluded, because it is advertising for fully protected
speech, rather than just for a nonspeech product.

Here they go again.  Another company is attempting to commit public relations suicide by blowing up the negative commentary of a small, low-traffic blogger into a national story.

An unlikely Internet frontier is Paris, Texas, population 26,490,
where a defamation lawsuit filed by the local hospital against a
critical anonymous blogger is testing the bounds of Internet privacy,
First Amendment freedom of speech and whistle-blower rights.

A state district judge has told lawyers for the hospital and the
blogger that he plans within a week to order a Dallas Internet service
provider to release the blogger's name. The blogger's lawyer, James
Rodgers of Paris, said Tuesday he will appeal to preserve the man's
anonymity and right to speak without fear of retaliation.

Rodgers said the core question in the legal battle is whether a
plaintiff in a lawsuit can "strip" a blogger of anonymity merely by
filing a lawsuit. Without some higher standard to prove a lawsuit has
merit, he said, defamation lawsuits could have a chilling effect on
Internet free speech.

"Anybody could file a lawsuit and say, 'I feel like I've been defamed. Give me the name,' " Rodgers said.

The blog about problems at Essent Healthcare is here, called The-Paris-Site.

Interestingly, the hospital, owned by a company called Essent Healthcare, appears to be using the medical privacy act HIPPA as a bludgeon to try to stifle criticism.  To make a case against the hospital, general criticisms about poor care and medical mistakes are best backed up with real stories.  But the hospital is in effect saying that real stories can't be used, since doing so violates HIPPA.  I don't know if this is or is not a correct application of HIPPA, but it is a danger of HIPPA that I and others warned about years ago.  The hospital goes on hilariously about how they are not really worried about the damage to their reputation, but for the poor patients whose medical details ended up in the blogger's hands.  Memo to health care workers in the future:  If you think the hospital screwed up my care, you have my blanket permission to release the details of said screw-up.

Before starting my own company, I have worked in a number of senior jobs at publicly traded companies and a few soon-to-be-f*cked Internet ventures.  In several of these cases, I and my fellow managers came in for pretty rough and profane criticism.  In many cases the posts were hilarious, positing well-oiled multi-year conspiracies from a management team that was just trying to survive the day.  Most of us were pretty rational about these sites - the more you try to respond to them, the more attention you give them.  The best response is to ignore them except maybe on Friday night when you can drink some beers and laugh out loud reading the commentary.  But there were always a few folks whose ego just got inflamed by the comments, even though they were seen by maybe 12 people worldwide.  They wanted to put a stop to the commenters.

I am sure that this is what is happening here.  Because any good PR person who has been in the business for more than 5 minutes would tell you that the worst thing you could do for a critic with a small audience is to a) turn them into a martyr and b) increase their audience about a million-fold.  These guys at Essent are just nuts, and in the heat of ego preservation are in the process of making a massive mistake.

I am reminded of TJIC's response when a lawyer threatened to file a BS copyright suit against him:

With regards to your statement that you've been "looking forward for a
class action lawsuit on a case like this", I, too, would enjoy such a
lawsuit. The publicity that we would derive from defeating your firm in
court over a baseless allegation of copyright infringement, brought
about by a law firm and a lawyer that does not understand the First
Sale doctrine, and which are entirely ignorant of the Supreme Court
case law on the topic, would be of incalculable value to us, and would
be a very cost efficient way to further publicize our service.

Hat Tip to Overlawyered for the link.

Update: The blogger appears to have been around since 2005.  The article said that as of June, or after about 2 years of operation, he had 170,000-ish page views.  He now appears to be at about 230,000 just three months later and only a few weeks after the story went public.  Q.E.D.

Update #2:  I forgot to include my opinion on the case.  There has got to be some higher legal bar to be cleared to strip the anonymity of a blogger than just asking for it to happen during discovery on a lawsuit.  If the legislature is not going to establish this bar, then a higher court is going to have to do so. 

I have argued for a while that American support for real free speech seems to be languishing, and we seem to be more and more comfortable with making exceptions to the first amendment for "hate speech" and speech that offends people, and speech that costs money during an election.  And now this, via Q&O, from a Rasmussen poll:

A large segment of the public would like to extend the concept of the
Fairness Doctrine to the Internet as well. Thirty-four percent (34%)
believe the government should "require web sites that offer political
commentary to present opposing viewpoints." Fifty percent (50%) are
opposed.

They could only dredge up a bare majority of 50% to oppose this?

On the positive side, the Supreme Court has struck down portions of the BCRA, also known as McCain-Feingold:

The Court concluded that Wisconsin Right to Life's ads, which urged
people to contact their senators (including one who was up for
re-election) about the confirmation of judicial nominees, did not
constitute either. The majority said "a court should find that an ad is
the functional equivalent of express advocacy only if the ad is
susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate." To put it another way,
BCRA's pre-election blackout cannot be constitutionally applied to a
spot that reasonably can be viewed as an issue ad, which means interest
groups are once again free to engage in public policy debates on the
air, no matter what time of year it is.

By the way, does anyone on the left feel at all worried that the four liberal judges were on the "limit speech" side of this issue?

But at the same time, the Supreme Court upheld speech limitations against High School students based on the content of the speech.  The rights of non-adults is a complicated issue, but precedent has been set that student speech is generally protected unless it is significantly disruptive of the school's functioning.  Except, it appears, when it is related to drugs.  This is part of a disturbing trend where an increasing number of topics, from "hate" speech to drug legalization speech are considered to be exceptions to the First Amendment.  However, almost everyone on the court seemed to have a different view on this, so it may be hard to generalize here.  Even the concurring opinions ranged the gamut from "this is narrowly aimed only at speech about narcotics" to "there is no free speech right in schools for minors."

And, speaking of hate speech, out in wacky Oakland, the world leader in Ebonics studies,

Marriage is the foundation of the natural family and sustains family
values. That sentence is inflammatory, perhaps even a hate crime.

At least it is in Oakland, Calif. That city's government says those
words, italicized here, constitute something akin to hate speech and
can be proscribed from the government's open e-mail system and employee
bulletin board. ...

Some African American Christian women working for Oakland's
government organized the Good News Employee Association (GNEA), which
they announced with a flier describing their group as "a forum for
people of Faith to express their views on the contemporary issues of
the day. With respect for the Natural Family, Marriage and Family
Values."

The flier was distributed after other employees' groups, including
those advocating gay rights, had advertised their political views and
activities on the city's e-mail system and bulletin board. When the
GNEA asked for equal opportunity to communicate by that system and that
board, it was denied. Furthermore, the flier they posted was taken down
and destroyed by city officials, who declared it "homophobic" and
disruptive.

The city government said the flier was "determined" to promote
harassment based on sexual orientation. The city warned that the flier
and communications like it could result in disciplinary action "up to
and including termination."

We might as well just repeal the First Amendment now and save time if we continue to believe that the government should ban any speech that offends someone.

Oh, and while we were talking about kids and drugs, check out this awesome rant by Mayor Cory Booker of Newark.

He wants to reserve prison cells for those who do violence and
divert the nonviolent drug offenders into treatment programs and
halfway houses.

He wants to change the New Jersey laws that
bar many ex-cons from getting a driver's license. He wants a black kid
from Newark who sells marijuana to clear his record as easily as the
white kid from the suburbs who buys it.

He wants to stop banning ex-cons from such a long list of jobs, including warehouse jobs at the nearby airport.

The scale of the problem is staggering: About 1,500 convicts are
released from state prison to Newark each year, and 1,000 of them will
likely be arrested again within three years -- mostly for drug crimes.

"The drug war is causing crime," Booker says. "It is just chewing up young black men. And it's killing Newark."

Good, its about time.  Not to be misunderstood, I would kick my kid's asses from here to the moon if I found them doing hard drugs.  But I want the responsibility to mold and repair their behavior to be mine, an option that is cut off if they get thrown in jail (which they probably wouldn't, since my kids are well off and white).  It is fine and fairly rational that we have determined as a society that kids can mess up their life doing drugs.  It is insane -- totally insane -- that our response is that we will respond by ... messing their life up even worse by throwing them in jail.

Freedom of Association is not explicitly listed in the First Amendment, but the Supreme Court has never-the-less upheld association rights in expressive organizations and for intimate associations, such as the family and more broadly in private social clubs.

The State of California continues its attack on Craigslist and Roommates.com trying to make these organizations liable for California Fair Housing Law violations when they publish a classified ad that breaks the law.  In short, it is illegal in California (and some other states) to advertise for a roommate who is a specific gender or race or religion, even if there are strong compatibility reasons for doing so (As in most states, it is A-OK to discriminate against smokers).

I won't get into the whole legal argument about these listing services, except to say that it is absurd to hold third parties accountable for other people's speech.  I want to ask a more general question.  How do laws that prevent me from choosing a roommate (however I want to) pass constitutional muster?  Taking on a stranger for a roommate is a scary proposition, especially in states like California that make it well nigh impossible to evict someone once they have moved in.  Short of marriage, it is hard to imagine a more intimate relationship -- in fact, many roommates probably see more of each other than some spouses.  On average, most people are probably not a compatible roommate for me.

Beyond this, most of the people who run afoul of the housing law do so with their speech, not the actual selection of a roommate.  Most fair housing complaints are against people's advertisements or public statements.  This strikes me as a double violation - the banning of speech about my association preferences. 

FIRE points out yet another university that is attempting to restrict speech it does not agree with, in the name of, uh, freedom or something.  The university's Student Union proposed to close down the campus humor magazine that made a joke about race relations.  The reason?

Specifically, in response to the "overtly racist, sexist, and generally
offensive articles, statements, and images published in the Spring
Issue of Gravity Magazine," and because the publication of this joke
had caused "members of our community to feel "˜unsafe,' "˜powerless,'
"˜unsupported,' "˜harassed,' and "˜threatened;'"

Now, this university is private, so I suppose as a private body they can define acceptable speech in their private confines any way they want (just as my kids dropping F bombs is legal by the first amendment, but banned in my household).  However, I fear that the folks involved do not understand that they need to leave these attitudes behind when they leave their private little cocoon university, because speech that hurts your feelings is not illegal, thank goodness, in the rest of the country. 

Unfortunately, it is almost too much to ask nowadays that universities understand that, as Louis Brandeis wrote, the best response to speech you don't like is more speech.  The rich irony comes from the fact that this occurred at ... Brandeis University.  The freaking place was named after the man who wrote:

Those who won our independence believed"¦ that freedom to think as
you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech and
assembly discussion would be futile; that with them, discussion affords
ordinarily adequate protection against the dissemination of noxious
doctrine"¦

They recognized the risks to which all human institutions are
subject. But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

Fear of serious injury cannot alone justify suppression of free
speech and assembly"¦ To justify suppression of free speech there must
be reasonable ground to fear that serious evil will result if free
speech is practiced"¦ [N]o danger flowing from speech can be deemed
clear and present unless the incidence of the evil apprehended is so
imminent that it may befall before there is opportunity for full
discussion. If there be time to expose through discussion the
falsehoods and fallacies, to avert the evil by the process of
education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.   (Emphasis added.)

Check out the FIRE article to learn much more about the events in question, including what the original joke was.

TJIC has a great link to a new law blog called CopyOwner focused no free speech issues.  CopyOwner observes that Culver City, California appears to be emulating the Chinese Internet model, providing access for free, but only if you accept state censoring:

First, they offer Internet access, but you must agree to "limited"
Internet access. And they don't mean limited hours of the day, limited
locations, or a limited amount of time you can be on. No, when they say
"limited," they mean that they will censor access to parts of the
Internet. ("By using this free wireless network you are agreeing and
acknowledging you have read and accepted these terms and conditions of
use, and this wireless network provides only limited access to the
Internet.") In other words, they do not offer Internet access at all....

Second, in order to gain the right to enjoy
this free, public, non-Internet access, no matter what you read in the
Bill of Rights (and the First Amendment, in particular) you must agree
that the government may abridge your freedom of speech and you further
agree that when it does so (as it promises to do), you will not
exercise your right to sue for the violation of your First Amendment
rights!

I'm not making this up. Here's the fine print:
"Further, [by using it] you are agreeing to waive any claims,
including, but not limited to First Amendment claims, that may arise
from the City and Agency's decision to block access to "¦ matter and
websites [of its choosing] through this free wireless network "¦."

From
a legal standpoint, it is the same as if the Culver City public library
were offering you free access to newspapers, but was first clipping out
the articles it didn't like and making you agree not to sue for
censorship if you wanted to read what was left.

My thought at first was that this was a liability response, but my sense is that the courts have been pretty consistent in protecting ISPs when plaintiff lawyers try to drag them in as deep pockets into lawsuits  (e.g. trying to sue Earthlink because it was the medium for delivering a MySpace page which in turn allegedly facilitated some action someone is suing over).  I am left with the sense that this is just politicians trying to protect themselves from criticism.  I am almost tempted to see how this thing plays out - censorship really gets ugly in a democratic environment.  You end up with a million interest groups all lobbying that they know best what should be censored.  You would have people in the town office arguing for censorship of pornography, religion (both pro and con), evolution (pro and con), nazis, Israel, global warming skepticism.  Whatever.  (By the way, I have seen people arguing in some context for censoring every item in the preceding list)

I am really reluctant to post stuff like this without some independent vetting, because so many groups out there will distort reality into pretzels.  That being said, anyone know if this is accurate?  Or maybe point us all to a better source and/or debunking in the comments?

    "Section 220 of S. 1, the lobbying reform bill currently before the Senate, would require grassroots causes, even bloggers, who communicate to 500 or more members of the public on policy matters, to register and report quarterly to Congress the same as the big K Street lobbyists. Section 220 would amend existing lobbying reporting law by creating the most expansive intrusion on First Amendment rights ever. For the first time in history, critics of Congress will need to register and report with Congress itself.

    "The bill would require reporting of 'paid efforts to stimulate grassroots lobbying,' but defines 'paid' merely as communications to 500 or more members of the public, with no other qualifiers.

    "On January 9, the Senate passed Amendment 7 to S. 1, to create criminal penalties, including up to one year in jail, if someone 'knowingly and willingly fails to file or report.'

Mark Tapscott covered this issue here, but I am still not sure I have an accurate read on all this.

Update:  See comments.  As I feared, the above may distort the issue.  Brandon Berg thinks the law kicks in when you communicate to 500 or more members of the public on policy matters and get them to contact Congress.  It is not at all clear why I should have to register to perform such an activity, but this is narrower than implied in the press release above.

Update #2:  I am becomming increasingly convinced that Lieberman and McCain are the same guy.  Even down to their desire to protect incumbent politicians from political speech.

Update #3:  Jacob Sullum is also skeptical that the law is really as broad as advertised above.

Via Captains Quarters:

The fundamental attack on free speech that McCain-Feingold foisted upon America has finally received recognition
from the federal judiciary. Portions of the BCRA got struck down today
in a lawsuit filed by a right-to-life group, as a judge ruled that the
campaign-finance restrictions violated the First Amendment...

It's not for nothing that many have termed the BCRA the Incumbent
Protection Act. The restriction on political speech that keeps groups
from buying advertising that names politicians violates the fundamental
reason for the First Amendment -- to allow Americans to criticize their
elected officials. While the court did not recognize the entire
egregiousness of this BCRA provision, it did recognize that the idea of
never being able to name elected officials in advertising within 60
days of an election regardless of the nature of the reference is a
ludicrous standard.

Via Instapundit, Mark Tapscott reports that Nancy Pelosi is cooking up a lobbying "reform" bill that  will be to lobbying what McCain-Feingold was to elections:  A figleaf labelled "reform" behind which politicians can hide while in effect making it more difficult for ordinary citizens to exercise their free speech.

Incoming House Speaker Nancy Pelosi has cooked up with Public
Citizen's Joan Claybrook a "lobbying reform" that actually protects
rich special interests and activists millionaires while clamping new
shackles on citizens' First Amendment rights to petition Congress and
speak their minds....

That
is bad news for the First Amendment and for preserving the kind of
healthy, open debate that is essential to holding politicians,
bureaucrats and special interests to account for their conduct of the
public business.

The key provision of the 2006 bill was its
redefinition of grassroots lobbying to include small citizens groups
whose messages about Congress and public policy issues are directed
toward the general public, according to attorneys for the Free Speech
Coalition.

All informational and educational materials produced
by such groups would have to be registered and reported on a quarterly
basis. Failure to report would result in severe civil penalties (likely
followed soon by criminal penalties as well).

In addition, the
2006 bill created a new statutory category of First Amendment activity
to be regulated by Congress. Known as "grassroots lobbying firms,"
these groups would be required to register with Congress and be subject
to penalties whenever they are paid $50,000 or more to communicate with
the general public during any three-month period.

In other words,
for the first time in American history, potentially millions of
concerned citizens involved in grassroots lobbying and representing
viewpoints from across the entire political spectrum would have to
register with Congress in order to exercise their First Amendment
rights.

There is even more bad news here, though, because the
Pelosi-Claybrook proposal includes loopholes big enough to protect Big
Labor, Big Corporations and Big Nonprofits, as well as guys with Big
Wallets like George Soros. Big Government, you see, always takes care
of its big friends.

The Pelosi-Claybrook proposal builds on the
restrictions on free speech created by campaign finance reform measures
like McCain-Feingold that bar criticism of congressional incumbents for
30 days prior to a primary and 60 days before a general election.

It should be no surprise that Common Cause, whose main cause is to champion unlimited government power, is behind both bills.

Great editorial from George Will:

Seattle"”as the comprehensive and sustained attack on Americans' freedom
of political speech intensifies, this city has become a battleground.
Campaign-finance "reformers," who advocate ever-increasing government
regulation of the quantity, timing and content of political speech,
always argue that they want to regulate "only" money, which, they say,
leaves speech unaffected. But here they argue that political speech is
money, and hence must be regulated. By demanding that the speech of two
talk-radio hosts be monetized and strictly limited, reformers reveal
the next stage in their stealthy repeal of the First Amendment.

I was living in Seattle at the time.  These were not political operatives, like a James Carville, moonlighting as talk radio hosts.  They were just radio guys who found an issue, no more or less than say Oprah when she focuses her audience on Alar or BGH or whatever.  Read the whole thing, but note that, in the name of campaign finance reform which is ostensibly about not letting money rule politics, the government is going after the side that was outspent five to one.  But this is not about campaign finance reform.  This is about protecting the government and its officials from criticism.

This is the America produced by "reformers" led by John McCain. The
U.S. Supreme Court, in affirming the constitutionality of the
McCain-Feingold speech restrictions, advocated deference toward elected
officials when they write laws regulating speech about elected
officials and their deeds. This turned the First Amendment from the
foundation of robust politics into a constitutional trifle to be
"balanced" against competing considerations"”combating the "appearance
of corruption," or elevating political discourse or something. As a
result, attempts to use campaign regulations to silence opponents are
becoming a routine part of vicious political combat.

This study pops up every year or so, and every time I see it I can't believe the results.  100,000 high school students surveyed, along with 8000 teachers:

• 54 percent of the students said all newspapers should be able to
  publish freely without government approval, up from 51 percent in 2004.
• Students say they felt the First Amendment as a
  whole goes too far. In 2006, 45 percent said the First Amendment goes
  too far, versus 35 percent two years ago.
• In 2004, 38
  percent of teachers thought the press had too much freedom. That figure
  dropped in 2006 to 29 percent. Student attitudes are improving as well,
  though more slowly. In 2004, 32 percent thought the press has too much
  freedom. In 2006, that figure dropped to 30 percent.

I guess I won't panic, as some of this is probably just high school kids being muddle-headed about everything.  It would be interesting to see if these attitudes are being caused more by leftish fears (e.g. political correctness, don't say anything bad about women or minorities or gays or handicapped or...) or by rightish fears (e.g. national security activities)

Hat Tip: Hit and Run

Eight days from now, all of our first amendment rights will be put away in a box for 60 days, hopefully to be retrieved after the election is over.  During those 60 days, and in an astronomical violation of the intent of our Constitution and Bill of Rights, none of us, unless we are operating under the banner of certain organizations like official political parties, will be able to pay to publicly criticize the *cough* fine *cough* men and women who serve as elected officials in this country.  Once the election is over and their jobs are safe and the criticism is moot, then you will get your speech back.

Thank you very much John McCain, Russ Feingold, all the Congressmen who voted for this, GWB who signed it, and the Supreme Court who astoundingly declared it constitutionally A-OK.

Update: Here is an example.  I use it because the people involved are try to fund ads to support a law I absolutely oppose (I have no desire to give the Feds more power over the free movement of US citizens across state lines).  But I totally support their right to advocate their position on TV.  In this case, their public speech is great even for folks like me who oppose what they support, because I didn't even know this proposed legislation existed until they started talking about.  Their ad informs me, even if it is sending me the message that I need to counter their message.  And that is what political dialog should be in a free society.

I am constantly irritated by efforts to ban a certain speaker from speaking or to drown out their message with taunts and chanting.  If you think someone is advocating something so terrible - let him talk.  If you are right in your judgment, their speech will likely rally people to your side in opposition.  As I like to tell students who want to ban speakers from campus -- Hitler told everyone exactly what he was going to do if people had bothered to pay attention.

Anyone who actually believed that McCain-Feingold was about cleaning up politics rather than just protecting incumbent political jobs can now disabuse themselves of that notion.  It has become clear that election finance laws are pure Machiavellian politics, passed by those who think it will work to their benefit (ie help them in the next election) and opposed by those who think they will be hurt by it.  Principle almost never plays a part any more.

On April 5, House Republicans voted to limit the speech of 527 groups, who up until now were exempt from McCain-Feingold speech restrictions.  Republicans generally supported the restrictions, despite years of saying that money does not tarnish politics, because, well because Democrats were better last election than Republicans at raising money via 527's.  Democrats, who historically as a party have supported campaign finance and speech restrictions and eagerly voted for McCain-Feingold, oppose the legislation for no principled reason except that 527's are working for them.  Democrats will therefore likely prevent this bill from passing the Senate.

George Will has a nice column lambasting the Republican Congress:

If in November Republicans lose control of the House of
Representatives, April 5 should be remembered as the day they
demonstrated that they earned defeat. Traducing the Constitution and
disgracing conservatism, they used their power for their only remaining
purpose -- to cling to power. Their vote to restrict freedom of speech
came just as the GOP's conservative base is coming to the conclusion
that House Republicans are not worth working for in October or
venturing out to vote for in November.

The "problem" Republicans
addressed is that in 2004 Democrats were more successful than
Republicans in using so-called 527 organizations -- advocacy groups
named after the tax code provision governing them. In 2002 Congress
passed the McCain-Feingold legislation banning large "soft money"
contributions for parties -- money for issue-advocacy and
organizational activities, not for candidates. In 2004, to the surprise
of no sensible person and most McCain-Feingold supporters, much of the
money -- especially huge contributions from rich liberals -- was
diverted to 527s. So on April 5, House Republicans, easily jettisoning
what little remains of their ballast of belief in freedom and limited
government, voted to severely limit the amounts that can be given to
527s.

He captures a priceless quote that gets at the heart of why Congressional incumbents love these campaign finance laws:

Candice Miller (R-Mich.) said that restricting 527s would combat
"nauseating ugliness, negativity and hyperpartisanship." Oh, so that is
what the First Amendment means: Congress shall make no law abridging
freedom of speech unless speech annoys politicians.

Props, by the way, to my Representative John Shadegg for his no vote, as well as to my favorite Congressman Jeff Flake, who voted no as well.

I must say I was not at all surprised that the Solomon amendment (requiring private universities that accept federal funds to also accept military recruiters) was upheld by the Supreme Court.  I predicted months ago that the left had made its bed on this issue with its strong support of Title IX.

Various law school faculties argued in the case that the Solomon Amendment unconstitutionally violated their rights to freedom of association (by taking away their choice of who can and cannot recruit on campus) and of speech (by forcing the university to support speech, such as military recruiting pitches, that it does not agree with).  I must say that I am both sympathetic and unsympathetic to their argument.  Sympathetic, because there are in fact free speech and association issues here.  The majority opinion notwithstanding, its impossible to make a razor-sharp distinction between prohibitions on "conduct" and prohibitions on expression.  I can't accept Robert's blanket statement that "unlike a parade organizer's choice of parade contingents, a law
school's decision to allow recruiters on campus is not inherently
expressive."  What if, say, Al Qaeda wants to set up a booth?  My accepting their booth would sure as hell be a form of expression, one that I am sure the Right would blast me for. 

I do understand that there is money involved, and the fatuous answer is that "well, they can just turn down federal funds."  Bullshit.  Like it or not (and I don't) the feds have made themselves so ubiquitous, particularly in certain research areas where they have crowded out all private funding, that it is unrealistic to tell them to take a hike.  Though I must say that it is interesting to see the left, which built this huge federal machine, hoist on their own petard.  Besides, the majority opinion said that the funding tie-in was not necessary to pass constitutional muster -- that the government had the power to just straight out compel private universities to accept military recruiters.

However, mostly I am unsympathetic.  Why?  Because these very same ivy league and faculty intellectuals have felt free in the past to step all over the free speech and association rights of the rest of us in similar ways.  As George Will asked in recent column, it would be fascinating to see what percentage of these same people who brought this suit in turn vehemently support, say, McCain-Feingold?  Or, public funding of election campaigns. 

As a business person, this ship sailed years ago.  Freedom of association no longer applies to business people.  The reason?  Well, freedom of association implies the reverse right of not associating with anyone you choose.  But there are phone-book-sized bodies of legislation today with detailed regulations telling me all the people and circumstances in which I cannot choose whom I associate with, or don't associate with (via employment decisions, for example).  For example, my business employs RV'ers who live full-time on the road and form a large transient labor force.  I have tons of applications every year from Canadian and Mexican citizens who would like to work for me, but I cannot hire them.  On the other side of the coin, I have had to actually go to court from time to time to justify why I chose not to hire or to fire someone who is a woman, or older, or handicapped.

And forced speech with which I don't agree?  My company has to, by law, maintain bulletin boards full of posters, messages, statements, etc. that I don't necessarily agree with but are legally required to post on my property as communication to workers.  And these bulletin boards have to be made a bit larger every year.  I don't have to accept any federal money to be absolutely required, at the penalty of heavy fines, to post these communications.

I would be a bit more enthusiastic in my support for these law faculty if I didn't suspect that they have been the very people out in the forefront of trashing my first amendment rights as a business person.

Postscript: By the way, is this even a problem anyway?  At Harvard Business School, the largest recruiters eschewed campus altogether, and conducted all their interviews at offsite hotels.  I would think the military could pretty easily work around these law schools prohibitions. 

I think that that FIRE, the Foundation for Individual Rights in Education, does a really nice job defending speech across the political spectrum on campuses.  I was struck in particular by this post on their blog, about Worcester Polytechnic Institute, a private university in Massachusetts.   Speech rights at private institutions (such as on the job) are often an area where "civil rights" groups trip over themselves.

I thought FIRE did a nice job with its WPI analysis:

as a private institution, WPI is not bound by the U.S. Constitution, and WPI
takes full advantage of that by stripping its students of their First Amendment
rights. WPI doesn't try to hide this fact, either. Unlike many private
universities, its website makes no promises that students will have the
constitutional rights that they enjoy in society at large. Moreover, it prominently
advertises that "[s]tudents enter WPI voluntarily"¦If they do not like some
of the rules, regulations, traditions, and policies of WPI, they do not have to
enter," and
that "membership in this particular academic community is freely sought and
freely granted by and to its members, and"¦within this membership group certain
specific behaviors that may be accepted by society in general cannot be accepted
within an academic community without hindering the explicit goals of that
academic community." 

 

As a private institution, Worcester is acting within its rights: it
advertises its repression and censorship right up front.  WPI doesn't promise
you free speech, and you won't get it. That's why FIRE doesn't rate WPI a "red
light""” when a private university states clearly and consistently that it holds
a certain set of values above a commitment to freedom of speech, FIRE does not
rate that university. But we still think you should know what to expect when you
get there.

Good for FIRE.  It achnowleges that WPI as a private institution has the right to set its own rules and terms and conditions, as long as those are clear up front.  FIRE doesn't like these rules (I don't particularly either) but it limits itself to speaking out against them, rather than filing legal actions as it might in the case of public universities which, by law and by court precedent, can't place artifical limits on first ammendment rights.

Last week I wrote here and here about free speech and the defeat of the bill to protect such speech online.  Matt Welch has more, and wonders as I did why Democrats, who applaud themselves for their staunch support of free speech, have suddenly abandoned the cause:

I was reminded of that neat bit of self-delusion yesterday when reading news
that House Democrats had followed The New York Times' odious
advice to kill
the Online
Freedom of Speech Act, which would have exempted weblogs from Federal
Election Commission campaign finance rules. Once again, the party supported by
people who truly do believe they and they alone care deeply about free speech
has casually stomped on the freedom to speak.

The bill itself would have placed an extra layer of statutory protection over
what should already be (but isn't) protected by the First Amendment"”the right to
buy political advertisements online. As the mess of appalling FEC rules
currently stand, nobody can
legally purchase a broadcast, satellite, or cable advertisement that even
mentions a candidate for federal office within 60 days of a general election (30
days for a primary), unless he or she sets up or joins a political action
committee (PAC) and agrees to abide by the heavy regulations that govern PACs'
funding and disclosure....

I am a friend of free speech, they assure us at every turn, but we
need to draw lines, because when yucky people spend money to communicate a
political message through the news media, it's just like child pornography,
reckless endangerment, and intellectual property theft. Combine this attitude
with a general cluelessness about the unintended speech-impairing
consequences of FEC rule-making, and you get the obscene sight of the New
York Times editorial board, which bathed itself and Judith Miller in the holy
waters of the First Amendment in 15
different editorials, arguing with a straight face that "The bill uses
freedom of speech as a fig leaf."

While I took some shots at the NY Times myself, observing that they seem to be just like every other business facing a new source of competition:  They are running to the government to get the state to quash the upstarts.  However, I missed the wonderful irony that Welch found.  Consider the First Amendment:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.

It is indeed amazing that the NY Times believes that these words protect them from cooperating with a criminal investigation and allow them to ignore subpoenas, but believes that these same words do NOT protect political speech on the Internet. 

Extra credit work for those who support campaign finance limitations:  Find the clause in the First Amendment language above the differentiates between speech that was paid for and speech that was not paid for.

I think maybe its time for me to stop reading the news.  What else can a good libertarian do when Republicans oppose free trade, support government intervention in the economy, and spend tax money like drunken sailors while Democrats vote for new restrictions on free speech?

The latter occurred yesterday, as the House failed to get the 2/3 majority necessary to pass the Online Freedom of Speech Act, mostly on the strength on opposition from Democrats (you know, those principled supporters of civil liberties).  Politicians have again shown themselves ready to trash the Constitution in order to limit the speech of those potentially critical to themselves.  Apparently, there is reason to hope, since bill sponsors are trying to bring the bill to the floor in a more routine process that would require only a majority vote for passage (which the bill appears to be able to garner).

My only problem with this initiative is that it falls far short of the mark of protecting all Americans.  Right now, only the major media outlets have full free-speech rights in an election.  This bill would extend free speech to the Internet.  Here's an idea:  Why don't we give everyone back their first amendment rights, as I wrote here:

These past few weeks, we have been debating whether this media
exemption from speech restrictions should be extended to bloggers.  At
first, I was in favor.  Then I was torn.
Now, I am pissed.  The more I think of it, it is insane that we are
creating a 2-tiered system of first amendment rights at all, and I
really don't care any more who is in which tier.  Given the wording of
the Constitution, how do I decide who gets speech and who doesn't - it
sounds like everyone is supposed to:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.

I
have come to the conclusion that arguing over who gets the media
exemption is like arguing about whether a Native American in 1960's
Alabama should use the white or the colored-only bathroom:  It is an
obscene discussion and is missing the whole point, that the facilities
shouldn't be segregated in the first place.

By the way, I don't want to ever hear from the NY Times again about some company that is being monopolistic.  The NY Times has opposed the Online Free Speech Initiative from the very beginning in a transparent attempt to quash a competitive media that is stealing readers from it at a very fast clip.  I'm sure they hate having this type stuff on the Internet.  And this is the same NY Times that was one of the very few supporters of the Kelo decision because they were in the midst of getting a new HQ via an eminent domain landgrab.  Reason number 635 I don't agree with giving the press more rights than the rest of us have.

Apparently not daunted by the how the Senate embarrassed itself in overturning his first amendment, Coburn is doggedly trying again:

Dr. Coburn, joined by Senators Sam Brownback, Jim DeMint, John
Ensign, Lindsey Graham, John McCain and John Sununu, proposed the
following actions to offset hurricane relief spending:

 

"¢ A freeze on cost-of-living adjustments for federal employees,
including members of Congress, with the exception of law enforcement
and military personnel.

 

"¢ A two-year delay in implementation of the Medicare prescription
drug benefit except for low-income seniors who would receive $1,200 in
assistance with their drug discount cards.

 

"¢ A requirement that those with higher incomes pay higher Medicare
Part B premiums in 2006, rather than in 2007 as currently scheduled.

 

"¢ Eliminate $24 billion in special project spending in the recently passed highway bill. 

 

"¢ A cut of 5% to all federal spending programs except those which
impact national security, with 1% set aside for funding of essential
programs.

 

The package of offsets proposed today could save the American taxpayers nearly $130 billion over two years.          

Arizona is the only state who had both its Senators support the first Coburn amendment, but I am never-the-less writing both to encourage them to hold tough. 

In the first of what promises to be the first of a number of lawsuits against 527 groups under the horrendous McCain-Feingold act, the Federal Election Committee is suing the Club for Growth for its television adds in 2000 and 2002.  Essentially, the FEC is attempting to declare the Club for Growth to be under the control of and an arm of the Republican Party, and therefore subject to McCain-Feingold spending and donation limitations. 

This is absurd.  First, current election law and McCain-Feingold are a brazen assault on the first amendment, and shouldn't apply to anyone.  Second, to the extent that they are allowed to be applied to the two major political parties, their reach should be limited as much as possible to allow private citizens full freedom of political speech.

While the Club for Growth often supports Republicans over Democrats, browsing their web site makes it clear that they are by no means a shill for the Republican party.  They are strong supporters of reduced regulation and taxes, and have been just as hard on Republicans of late when Bush, Delay and Company have apparently abandoned these goals.  I have supported The Club for Growth for years and I am by no means a Republican.

Several lefty blogs have gleefully piled on because they don't like the Club for Growth.  This is very very shortsighted.  My sense is that the case against CfG is no better or worse than the case they can have against MoveOn or Soros or whatever.  The CfG suit may well be a Trojan Horse first case to immunize the Bush Administration and the FEC against charges that they are going after the President's critics.  Once immunized, under this theory, lefty organizations will be next. 

Bloggers represent one of the strongest and most vocal constituencies for freedom of speech -- we should be united in opposing this kind of action, whoever it is against.

Update:  More from Reason's Hit and Run

Several times on this blog I have found myself defending "hate speech".  Not because I agreed with it, but because I am deeply concerned that the effort to label certain speech "hate speech" is part of a general campaign to limit first amendment rights.  If speech limiters are successful in establishing the principal that certain speech is so bad that it is not protected by the first amendment, then we are suddenly at the mercy of whoever is in charge of defining "bad" for our speech rights.  Universities, ironically at the forefront of the "free speech" movement of the 60's, have been at the forefront of "hostile environment" limitations on speech in this decade.

There are many such examples.  The group FIRE, which fights speech limitations on campus, has a blog and a university rating system that is a great resource.  One recent example from their files is of Mr. J. Daniel at William Patterson University in New Jersey.  A couple of facts first, and then a fantastic letter in his defense from Rutgers professor Norman Levitt.  The background:

Mr. Daniel was one addressee of a mass mailing from Prof. Scala publicizing a
film she was about to show, a documentary that presented a positive view of
lesbian relationships. Mr. Daniel, who espouses religious doctrines deploring
homosexuality, responded with a request not to be sent similar notices in the
future, along with a few brief sentences summarizing his general views. It is
notable that he did not threaten Prof. Scala directly or by implication, nor did
he deny her right to show the film. He did not publicize the exchange. He did
not use the incident to launch a campaign of ridicule or vilification against
homosexuals or anyone else. He merely counterposed his ideas to those she was
presumably promoting, in a purely private way and in response to an unsolicited
message directed to him.

What Prof. Scala actually did was engage her university president in a joint effort to censor and punish Mr. Daniel.  I have read Mr. Daniel's comments, which I don't happen to agree with.  However, the response he got to his very reasonable actions is very scary.  Prof. Levitt describes the rest:

Prof. Scala, however, seems to regard disagreement with her position as a
punishable offense. In this respect, she has embraced peculiar dogmas that have
become all too prevalent on campuses throughout the nation. These hold that
there are certain groups who, by reason of a presumed history of oppression, are
to be safeguarded from opinions that they find distressing or uncomfortable. The
rights of others to hold, or at least to express, such dissonant views are
supposedly nullified by the new-minted "right" of the protected groups to be
shielded from discomfort and distress. Both the ethic of free speech and the
constitutional guarantees that bolster it are supposedly trumped by the duty to
shield the tender sensibilities of the officially recognized victim class. If,
by chance, someone utters a sentence or two, even in the context of private
discussion, that affronts these sensibilities, terms like "harassment" and
"hostile environment" are immediately trotted out to justify retribution against
the offending speaker. In short, the assumption is that colleges and
universities have both the right and the positive duty to require students,
faculty, and employees to uphold official doctrine on these matters, if only by
silencing themselves if they happen to disagree.

Wow, I wish I could write like that.  There is much more, all on point and very well written here.

The NJ Attorney General has chimed in and said... wait for it ... that Ms. Scala is entirely in the right and that Mr. Daniel is probably guilty of harassment and discrimination under NJ law as well for expressing his opinions.

By the way, if you think that Professor Levitt was exaggerating for saying that speech is condemned merely if it hurts the feelings of someone in a protected group, here is a very typical quote from a college speech code (I just grabbed the first one I found on the FIRE site):

The Albertson College
Student Handbook's harassment policy states that "[a]ny comments or conduct
relating to a person's race, gender, religion, disability, age or ethnic
background that fail to respect the dignity and feelings of the individual are
unacceptable." The Handbook also provides that "[a]ll inappropriate behaviors
may not be specifically covered in the misconduct definitions, and students will
be held accountable for behaviors considered inconsistent with the standards and
expectations described in this handbook."

Just to prove this is not an aberration, here is another:

The Rhodes College Policy on Discrimination and Harassment states
that "[f]reedom of expression does not include the right to intentionally and
maliciously aggravate, intimidate, ridicule or humiliate another person." Now,
we at FIRE know that all too many university administrators believe this
statement to be true; this is apparent from the way speech codes are enforced on
campuses across the country. However, few colleges and universities are bold
enough to make an explicit statement about free expression that directly
contradicts U.S. Supreme Court precedent. The administrators of Rhodes College
need to read the Supreme Court's decision in , in which the Court upheld
Hustler's right to publish a parody suggesting that Jerry Falwell's first sexual
experience was a drunken tryst in an outhouse with his own mother. Parody and
satire"”which often intentionally and maliciously ridicule and humiliate their
targets"”enjoy the strongest constitutional protection.

Update:  By the way, here is the whole text of the email in question.  Don't agree with him, but I have a hard time seeing anyone threatened and certainly can't fathom kicking the guy out of school and threatening him with prosecution for it.  More evidence that the promotors of diversity don't actually want diversity.