Posts Tagged ‘First Amendment’

Academic freedom then and now

October 12, 2017

From a young age, I’ve believed in American ideals of freedom and democracy, as I understood them.   But my political thinking crystallized when I was a student at the University of Wisconsin in Madison in 1952-1956 and took part in controversies about academic freedom then.

Academic freedom, as I conceives it then and still do, is the freedom of college faculty to engage in scholarship free from outside pressure, and the freedom of students to discuss and debate issues without restriction.

I regard the defense of freedom of expression as a defining principle of liberalism.  Back then most American leftists were liberals.   Sadly this is no longer true.

A plaque on Bascom Hall, on a high hill in the center of the liberal arts part of the campus, contained an excerpt from the Board of Regents declaration of 1894, when they resisted pressure from the state legislature to fire a professor for his outspoken pro-labor opinions.

The regents’ reply was that scholarship required free inquiry and was incompatible with censorship of opinion.

The academic freedom issues on the UW campus in the early 1950s were: (1) Should a known Communist, or a member of a group on the Attorney-General’s list of subversive organizations, be automatically barred from employment on the UW faculty, and (2) Should Communists or groups on the Attorney-General’s list be eligible to participate in students activities?

In the year 1952, when I enrolled as a freshman, Joseph Stalin still ruled the Soviet Union, the Korean Conflict was still waging and Senator Joseph R. McCarthy was at the height of his influence.   McCarthy’s power was based on his charges, which later proved baseless, of Communist infiltration of government and other American institutions.   Interestingly, he represented Wisconsin, but never had anything to say about the University of Wisconsin.

Fear of Communists had a real basis.  It was not just the “intolerance of the intolerant” argument—that enemies of democracy were not entitled to democratic freedoms.

Communist parties in those days were subservient to Stalin.   In the 1930s, Communist parties all supported the idea of a Popular Front of radicals, liberals and conservatives against Hitler.   Then, after the Hitler-Stalin pact of 1940, they all opposed the British “imperialist” war.

After the Soviet Union was invaded in 1941, they became anti-fascist again.   British and American Communists provided the Soviet Union with critical information about the U.S. atomic bomb.

Things are different now, but that’s how they were then.

Nevertheless, I and my friends took the extreme liberal position—the extreme libertarian position—that people should be judged on their individual actions, and not on group identity.

That wasn’t just a matter of justice.   If Communists were outlawed, or denied employment, for being Communists, then they wouldn’t identify themselves as Communists.    The only way to root them out would be to create an inquisition to determine people’s secret beliefs.   The obvious target for this inquisition would be those of us who are pro-labor, anti-racist and pro-civil liberties.

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Reasons why freedom of speech is important

October 11, 2017

A good friend of mine mailed me clippings about free speech controversies on college campuses, and asked me whether I think freedom of speech is an absolute right.

Nothing is absolute.   Even fundamental freedoms are subject to reasonable and limited restrictions that are consistent with their purpose.   These includes laws about (1) libel and slander, (2) incitement to riot, (3) threats and intimidation, (4) harassment, (5) public obscenity, (6) public nuisances and probably other things I didn’t think of.

But I can’t think of a situation in which I would forbid somebody to peaceably express their opinion based on the nature of that opinion.

And if you could make me admit to an exception, I would define that exception as narrowly as possible and not use it as a precedent.

What is the point of freedom of speech?

Freedom of speech is an important individual right.   Being able to speak your mind without fear is necessary for human flourishing.   Nobody can be happy if they have to conceal their opinions out of fear.

Freedom of speech is a our social contract.   It provides a way in which people of radically different opinions can live together without violence.    I may think you not only wrong but wicked, and you may think the same of me.   But it is better for both of us, and for those around us, if we agree to settle our differences with facts and ideas, not guns and clubs.

Freedom of speech is necessary for self-government.   Citizens of a free country have a right to hear all sides of public questions.   Your choice is not completely free if someone has the power to limit what facts and opinions you are allowed to hear.

Freedom of speech is most valuable to the least powerful.   The rich and powerful in any framework will be able to make their views known.   Reformers, dissidents and the poor and marginalized are the ones most in need of the right of free speech, and that is true even if they have less of it than the powerful.

And, under the First Amendment to the U.S. Constitution, free speech is more than just a good idea – it’s the law.

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Donald Trump and the limits of protest

March 23, 2016

I admired Dr. Martin Luther King Jr. when he was alive.   I admire the thinking of Gene Sharp.  I think civil disobedience is justified when all else fails.

But I do not agree with the non-violent protests that shut down an Arizona highway near a Donald Trump campaign events, nor with other protests intended to prevent Trump from speaking.

Dr. King’s non-violent protests were strategic attacks on structures of power.  His protests succeeded to the extent that people in power concluded it would cost them less, in terms of damage to profits and reputation, to give in to his demands than to fight them.

They also succeeded to the extent that Dr. King was able to convince the larger American public that his cause was just, and his protests were disciplined and organized as to give his followers the moral high ground.

Dr. King had specific lists of demands.  His opponents always knew what they had to do in order to shut off the protests.

trumpblock20Protestors who try to shut down Donald Trump rallies do not hurt either Trump’s reputation nor his profits.  Instead they solidify Trump’s support, while inconveniencing and alienating the general public.

Those protestors are not defending their Constitutional rights.  Instead they are denying Trump his right of free speech and his followers their right to peaceably assemble.

Yes, I know the Constitutional rights of Occupy Wall Street, Black Lives Matter and other groups have not been respected, and that Donald Trump himself is not a friend of civil liberties.  That does not mean that he and his followers are not entitled to hold meetings or that there is anything to be gained in trying to deny them that right.

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Does the Constitution protect corruption?

August 27, 2014

The Supreme Court ruled in the Citizens United case that campaign contributions are a form of free speech protected by the First Amendment.   On April 2, the Supreme Court ruled, in McCutcheon vs. Federal Election Commission, that Congress does have the right to legislate against corruption in campaign financing, but, as Jill Lepore pointed out in an article in The New Yorker, only against certain forms of corruption.

Chief Justice John Roberts wrote the opinion for the five-to-four majority. “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute,” he began. 

040614newcoletoonCongress may not “regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”  But there is “one legitimate governmental interest for restricting campaign finances,” he explained: “preventing corruption or the appearance of corruption.”

That said, the Court’s understanding of corruption is very narrow, Roberts explained, echoing a view expressed by Justice Anthony Kennedy in McConnell v. F.E.C., in 2003: “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.”

Quid pro quo is when an elected official does something like accepting fifteen thousand dollars in cash in exchange for supporting another politician’s bid to run for mayor of New York.  The only kind of corruption that federal law is allowed to prohibit is out-and-out bribery.  The kind of political prostitution that the Moreland Commission was in the middle of attempting to document—elected officials representing the interests not of their constituents but of their largest contributors—does not constitute, in the view of the Supreme Court, either corruption or the appearance of corruption.

via Zephyr Teachout’s Anti-Corruption Campaign.

The Moreland Commission to Investigate Public Corruption was appointed by Gov. Andrew Cuomo in April, 2013, to investigate corruption in New York state.

The commission was given 18 months to do its work, but in March of this year, Gov. Cuomo shut it down.  He said it was supposed to investigate the legislative branch, not the executive branch.

In the meantime, the commission made a series of preliminary recommendations, including closing loopholes regarding limited liability laws, mandating disclosure of outside spending, instituting public finance and creating an independent election-law enforcement agency.

As Lepore noted, these recommendations, except maybe for public campaign financing, would have had little effect in the light of Citizens United and McCutcheon.

 Zephyr Teachout, who opposes Gov. Cuomo in the coming Democratic primary, is a law professor who says the Supreme Court’s decision is contrary to the intention of the authors of the Constitution.  Even if she’s right, this doesn’t change anything.

Maybe it is necessary to amend the Constitution, as was done after the Supreme Court ruled that slavery was protected by the Constitution and later when the Supreme Court ruled that a federal income tax was unconstitutional.