The People in Arms
(Completes the section Second Amendment of Law 13.)
When one reads in the Second Amendment that militias are necessary to a free state, these are strong words and one cannot read it as “a standing army is necessary to a free state,” especially because the Constitution also has measures about the army (Article I, Section 8, clause 12) and the amendment does not mention the army but militias.
In fact one should read the Amendment thus: “Militias are necessary to a free state, even more so when there is a standing army in the state.”
In other words, in “A well regulated militia, being necessary to the security of a free state” (letter of the amendment) the emphasis is on “necessary to a free state” rather than on “necessary to the security,” because if the emphasis were on the latter, then yes the army and the state-controlled police forces may be enough and there would be no need of militias, but the Framers intended to emphasize the role of militias as against a standing army, because standing armies were the arm of absolutism in Europe and they wanted to make a free country.
As the second amendment talks about militias and not the army, I do not understand it when a statute (Dick Act, National Defense Act…) calls the military reserve a militia, because the military reserve is the army and obviously the second amendment isn’t about the army (which is named elsewhere in the Constitution but not in the second amendment). This is a statutory misnomer with huge consequences because lots of people look askance at citizen militias, which are the true second amendment militias contrary to the national guard or any other military reserve corps, which are the army_period.
An army may be “necessary” to the “security” of a “state” but according to the second amendment it is not “necessary to the security of a free state,” that is to say, again, the emphasis is on “free.” Without militias a free state would lack something necessary. And as it would not lack security if a standing army can provide it, it must be that said state would lack first and foremost being a free state.
And it should be clear by now that the militias of the amendment are not and cannot be the army nor any reserve corps of the army, however muddled the situation is made by the statutes.
The idea of a “collective right within the context of a militia,” which was cogently discarded by the Supreme Court, is, I believe, partaken by many of those who also look askance at citizen militias. Not only can they not accept an individual right to bear arms but also and perhaps even less can they accept a militia except in the muddled sense of a military reserve.
In fact they read the Second Amendment in light of the militia statutes (rather than the statutes in light of the amendment) and thus read it as meaning “an army being necessary to the security etc.”
But this is completely nuts on two grounds (beside all the already said).
1/ If the amendment were about the army, it would literaly name the annex (the reserve) rather than the main body as “necessary to the security” of the state. It would stress the necessity of the annex without even mentioning that of the main body, which is absurd.
2/ If the amendment were about the army, the amendment would be a big non sequitur: “An army being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The Framers would have found it necessary to secure a right to bear arms because the state needs an army, but such a reasoning would be a puzzle to everybody, and indeed as about all countries in the world, even sh*thole countries, have standing armies and yet most of them deny their citizens the right to bear arms, the idea that a standing army necessitates a citizens’ right to bear arms is something unheard of, and it would have been great had the Framers explained their idea a little bit. Obviously it’s absurd and the Framers of the second amendment are just not talking of the army.
One simply cannot read the amendment in light of the statutes, and this makes the statutes’ constitutionality dubious.
I also object to the organized vs unorganized typology because not only does it derive from said statutes (“organized” militias are organized by legislative acts) but also because the amendment talks of “well regulated” militias and the typology gives the impression that “unorganized” militias must be outside the scope of “well regulated” militias, which is probably what most if not all half-informed Americans (those among Americans who are half-informed) think.
Oddly, if you read the opinions of the Justices of the Supreme Court (or their summaries), you’ll find that my viewpoint is closer to that of dissenting Justice Stevens than to the majority opinion by Justice Scalia. Although I had read the summary before, I wasn’t conscious of this while writing the previous lines. Here is J. Stevens’s dissenting opinion in J.R. Vile’s words:
“The primary purpose of the Second Amendment was to underscore the Founders’s fear of standing armies. The amendment makes no mention of hunting or self-defense. … J. Stevens argues that the Second Amendment was designed to prevent Congress from disarming state militias: ‘When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.’ The term bear arms was an idiom designed to refer to those who served in militias; to keep arms further described ‘the requirement that militia members store their arms at their homes, ready to be used for service when necessary.’”
While I entirely agree with most of this, the only conclusion I find to suit it is that the Court was right to decide as it did and I hardly understand how this opinion can be a dissent.
The Founders’ fear of standing armies is the crux, what does Justice Stevens make of it? The U.S. has a standing army now, so what then? Is everything LOST and we should abide by a reality contrary to the will of the Founders while everything we keep saying in the legal domain is informed by the Constitution they framed? What absurdity is this? Clearly the Founders’ vision was that of a people in arms rather than standing armies, the arm of absolutism in Europe and of Empires elsewhere. They knew their history books and the stories of great nations plagued by praetorian intrigues. Yet, probably out of pragmatism, they also made room for an army, but if the nation were to create such an army, then the Constitution documents that it is a necessary evil–not unlike the government itself, in fact, and in the same way that that necessary evil that is the government is made as innocuous as possible by checks and balances, so must a standing army be dealt with, and the checks and balances here are the people in arms, the militias.
This was the starting point for all I wrote, which, to sum it up, is that an individual right to bear arms is enclosed in the prefatory clause about militias as the premise whence the right follows by necessity (provided one does not limit one’s understanding of militias to that of later, likely unconstitutional statutes).
To rephrase it, in my opinion you can’t have a collective right without an individual right. I believe in grassroots militias, bottom-up, so individuals must be armed if they want to form or join a militia. It’s not the governor or the Pentagon calls them and arm them, which is probably Stevens’s idea of militia, but I think he’s right that the amendment underscores the Founders’ fear of standing armies, due to which fear–a fear not at all irrational!–they wanted the people armed. The people must be armed and that means individuals must be armed.
Now when Scalia says (in the commentator’s words) “The Second Amendment was developed in reaction to fears that the government would disarm the people, and was patterned on state provisions that were designed to protect individual rights,” this is right also and I don’t see any contradiction between the two quotes because obviously if the government intended to disarm the people it would be because in the government’s idea a standing army would empty out a right to bear arms. A standing army makes militias useless (except as an annex or as local battalions of the army) so it makes the right to bear arms useless. But the Framers said–this is the very letter of the Constitution–that militias independent from the army are necessary even if the Union were to create a standing, permanent, professional army.
Then, when one reads (majority decision) “The Amendment is divided into a prefatory clause and an operative clause. There must be a link between the two, but ‘apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause’,” it smacks of taking liberties with the letter, which I disagree with in constitutional analysis (and Scalia has often blamed others for taking liberties). In my eyes there was no need to resort to such intricacies: the prefatory clause is the premise, the operative clause is the consequence, and the consequence is an individual right.
I wouldn’t insist too much on the English heritage, as today “In the United Kingdom, access by the general public to firearms is subject to some of the strictest control measures in the world” (first sentence of Wikipedia page Firearms Regulation in the U.K.), which means the U.S. would be more faithful to the heritage than the Britons themselves, and this after breaking with them. There is no justification to this: Why would or should the Americans be more faithful to the English heritage than the English?
Then Scalia goes on talking about the “pre-existing right,” which he calls a “‘natural right’ that encompassed that of protecting oneself against ‘both public and private violence’.” The majority in McDonald v. Chicago (2010) said Heller “recognized self-defense to be a basic right that applied to handguns.” To the best of my knowledge there is no country in the world where the laws say you must accept that someone kills you without trying to defend yourself, namely, a country that does not acknowledge exculpatory circumstances for homicide. This being said, the U.S. is rather unique with its constitutional right to bear arms. As a matter of fact, in other countries too you’ve got the right to use a gun in self-defense, only it turns out you don’t have a gun, because you had to ask for a license, justify your demand etc, so arguably, yes, these countries make fun of the basic right that is self-defense.
If the letter of the second amendment stresses, as I claim, defense against “public violence” rather than against “private violence,” (these are Scalia’s words) this is only out of conciseness: there was no need to expatiate on an individual right to self-defense because it is, if you like, a “natural right” (Scalia again) and it goes without saying that, when, a militia being necessary, the right to keep and bear arms shall not be infringed, individuals may use in self-defense the weapons they have the right to keep and bear.
The reference by Scalia to “public (vs private) violence” is interesting. What is it he has in mind? Is it not the possible use of the standing army against the citizenry? If this is so, then obviously the making of militias a something inside the army, dependent on the same organs, is an obstacle to the militias playing any role against public violence. So possibly Scalia has the same conception as that laid down here by me, but on the other hand I also have doubts about it: I wonder whether, like others, he might not think that this talking about militias in the Constitution is antiquated and irrelevant in the times we’re living.
That there be antiquated clauses in the Constitution is perhaps admissible, but that there be antiquated clauses in crucial matters is strictly impossible.
Immunity For Botch
South v. Maryland (1855) and the public duty doctrine say “there is no tort liability to an injured party resulting from the non-malicious failure of a law enforcement officer to enforce the law,” but also “It is a public duty for neglect of which an officer is amenable to the public, and punishable by indictment only.” Thus the absence of tort liability does not rule out all form of responsibility or I’m missing something.
You can charge an officer for failure to protect if you are feeling foolish, but the case will almost certainly get rejected by the judge, and even if it isn’t the appeal will side with the officer. … I don’t think threats of a frivolous indictment by an overzealous prosecutor can be interpreted as a duty for an officer to endanger their life. It is just legal politics and rhetoric designed to win the court of public opinion (the mob). (MrM)
For the sake of learning, I quote the definitions:
“Public duty rule: a doctrine in tort law: a government entity (as a state or municipality) cannot be held liable for the injuries of an individual resulting from a public officer’s or employee’s breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual called also public duty rule. See also special duty doctrine.
Special duty doctrine: an exception to the public duty doctrine that imposes liability for injury on a government entity when there is a special duty owed to the plaintiff but not to the public at large called also special duty exception. NOTE: The special duty doctrine applies when the duty owed to the plaintiff arises by statute or when the plaintiff has justifiably come to rely on the government’s assumption of that duty.” (findlaw)
Town of Castle Rock v. Gonzalez (2005) is a confirmation of DeShaney v. Winnebago County Department of Social Services (1989). It may be worth stressing that both involve children being victims of their father’s violence, so these rulings may be found to run into the parens patriae doctrine, actually.
Parens patriae “refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child, individual or animal who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.”
You’ll note the phrasing “requiring state intervention.” The conclusion “We are all responsible for our own personal safety, whether we like it or not” (Barnes Law) sounds odd when applied to the situation of a little child vis-à-vis his father, especially when the state knows the child’s helplessness, so much so that it adopted a parens patriae doctrine.
So I can’t agree with DeShaney v. Winnebago Social Services.
The mother was let down by the social services. In the books I find “this clause [the due process clause] was designed ‘to protect the people from the State, not to ensure that the State protected them from each other.’” This is not true as far as the parens patriae doctrine and the situation of a helpless child is concerned, but I fear to understand that it is no constitutional guarantee and instead a castle in the air. People demanded foster homes, same as they demanded a 911 line for help, and states provided the services, as it was not found unconstitutional, but only for the people to be told then that whether the services are provided in a satisfactory or botched fashion is none of the courts’ business. In other words, the Supreme Court is telling people they rely on the state at their own risk, and in reality they cannot rely on it at all.
“The fact that the state at times took temporary custody of Joshua [DeShaney] did not make the state his personal guardian after it released him.” No but the fact that it released him to an abusive father several times shows a clear misunderstanding of the situation, all the while the mother was thinking the child was in good, prudent hands.
“If the state has a financial obligation to Joshua, it must be democratically ascertained through protection of state tort (personal injury) law rather than through the due process clause.” Not true with regard to the public duty doctrine. Thus, while South v. Maryland barred a tort suit leaving indictment open, DeShaney v. Winnebago Social Services bars a due process clause suit claiming to leave open a tort suit that is not open. Of course in both cases the courts felt the need to leave some recourse open, as otherwise the notion arises of duty without responsibility, which is, to say the least, hard to chew.
“Justice Sonia Sotomayor has noted a “disturbing trend” of siding with police officers using excessive force with qualified immunity, describing it as “sanctioning a ‘shoot first, think later’ approach to policing.” She stated: “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force…But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”” (Wikipedia page Qualified Immunity)
This is the topic of qualified immunity, with which I wish I were more familiar because I guess that’s part of what is knowing one’s rights…
THE NASA Psychic
How many Americans know Apollo was a psychic program?
“Jonsson is most notable for his long-distance telepathy experiment during the Apollo 14 mission in 1971. Four psychics on earth were chosen to receive telepathic signals from astronaut Edgar Mitchell in space.” (Wikipedia page Olof Jonsson)
Are we supposed then, according to NASA, a federal agency, to believe in extrasensory perception (ESP)? Obviously yes because one does not fund a “long-distance telepathy experiment” if one does not believe in short-distance telepathy. Think of it: a federal agency funding a long-distance telepathy experiment between space and the earth while it was not convinced that telepathy occurs here on earth. Does it make any sense?
Likewise, the fact that the experiment was, as the Wikipedia page adds, a “complete failure” cannot by itself disprove ESP but only, if anything, “long-distance” ESP. Therefore, without an express statement to the contrary by NASA, it must be said to endorse ESP.
Canada: Conservatives’ attempts to protect platform users’ speech online is blocked. A bad result for free speech in Canada.
Let’s face it: Canada never was a free-speech country. U.S. envoys never pressed it to become one and how would they when their bosses at home had rather have the same anti-free speech policy at home too? I told you already, for that it takes independent judges tenured for life. Among politicians it’s always the opposition that defends free speech, but when it gets to governement there’s no more of that bullsh*t, it’s censorship bills one after the other, all of them. Prove me wrong.
Given the basic fact that Twitter and Facebook censor all opponents of the Democratic Party, this censorship is state action in all states and localities governed by Democrats, and the platforms are amenable to courts for abridgment of First Amendment rights by the inhabitants of these states and localities. The ideological nexus is obvious. The U.S. federal government being currently under a president of the Democratic Party, these platforms’ censorship is now state action in all the territory of the Union.
The Botched Law of Racially Restrictive Covenants
In what is perhaps an unprecedented instance in the history of American legislation, a statute, the Fair Housing Act of 1968, was needed twenty years after the Supreme Court intended the same as the Act, in its notorious decision Shelley v. Kraemer of 1948 which eviscerated the enforcement by courts of private restrictive covenants barring blacks from buying real estate.
In the 6-0 decision Chief Justice Vinson explained that “restrictive covenants drawn up by private individuals do not in themselves violate the Fourteenth Amendment. As long as they are completely private and voluntary, they are within the law. Here, however, there was more. Through their courts, the states aided in the enforcement of the covenants. Indeed, if it were not for the courts, the purpose of the agreements would not be fulfilled.” (Vile, 2018)
Thus we were to learn, en creux, from the Supreme Court that covenants whose purpose would not be fulfilled by courts are a legal object–a legal UFO to this very day. Commentator Vile adds, for those who could not believe what they had just been reading: “Shelley dit not invalidate private restrictive covenants but only state enforcement.” State enforcement rings a bell to those familiar with constitutional law: one reads state action. That judicial action is state action is perhaps not to be denied but then, as courts, one or the other, are competent about everything, the decision means that state action is everywhere (and everybody could be sued for “discrimination”: you could be sued for failing to invite blacks at your wedding, for instance)–and at the same time whites who refused to sell estate to blacks through restrictive covenants would maintain the practice undisturbed, as long, that is, as blacks did not trick them and acquired the estate anyway, or perhaps as long as black squatters did not occupy the premises, and if a black (or, for that matter, any) squatter occupied a house belonging to a white owner to which house a restrictive covenant was attached, perhaps the owner had no legal recourse against the squatter?
Such niceties and others resulting from the unanimous decision were so strange that eventually the legislator, twenty years later, passed the Fair Housing Act that prohibits racially restrictive covenants.
To this day no court dared link state action to the possibility of judicial litigation again, Shelley was dead on arrival, and discriminatory private ventures that are not specifically covered by antidiscrimination legislative acts are permissible. A restaurant can (absent a state or local statute to the contrary) cater to whites only, for instance, in the United States of America, that is, since other countries have bogus notions of freedom.
But restrictive covenants run with the land: “Just because these old covenants are now unenforceable, they never simply disappeared. Many continue to be passed on from owner to owner through property deeds to this day, and though real estate professionals and lawmakers alike have made efforts toward having them removed, bureaucratic red tape and legal expenses often hinder progress. Some argue that it would be too cost-prohibitive to remove the racist language from every real estate deed in the country today.” (Homelight, Sep 14, 2020)
To have made covenants which pre-existed the Fair Housing Act unenforceable was ex post facto lawmaking: “An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.”
Ex post facto laws are prohibited by the American Constitution (clause 3 of Article I, Section 9). In its purity the principle holds in criminal law only but such a construction may be argued to be unconstitutional: “Thomas Jefferson described them [ex post facto laws] as ‘equally unjust in civil as in criminal cases.’ Over the years, however, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters.” (Wikipedia) Like Jefferson I see no reason why the principle should be limited to criminal law, because 1/ the letter of the Constitution makes no such distinction as that introduced by Justice Chase (the clause reads: “No bill of attainder or ex post facto law shall be passed” and 2/ even if ignoring the principle must be particularly dramatic in criminal law such neglect is not benign either in the other legal domains.
Georgia anti-BDS law is unconstitutional: “A federal court ruled in favor of journalist Abby Martin, who was barred from speaking at Georgia Southern University after she refused to pledge she would not boycott Israel.” (shadowproof, May 24, 2021)
It’s only the fifth or sixth anti-BDS law that is declared unconstitutional by a U.S. federal court, there remain a dozen ones in other states. Apparently none of the humiliated states dare appeal the evisceration of their shameful bills to the Supreme Court?
There is that politician, Rubio, I don’t know what he’s saying about all this but he wanted a federal anti-BDS bill, the same as those. And how did he “sell” it? By exposing his total, complete and irremediable lack of constitutional knowledge. He said: What? (¿Cómo?) BDS supporters could boycott Israel but the government couldn’t boycott BDS supporters? I believe he was convinced, while tweeting this, he had found the ultimate ironclad argument to the opponents of his bill. He’s got no clue, he doesn’t know that a state boycott (by any government, federal, state or local) is state action against which boycott is protected as free speech, whereas BDS is a grassroots boycott protected by the First Amendment. Even if both were called boycotts, one infringes on free speech and the other is free speech. That’s basic constitutional law.
I’m reading “the FBI just put X and Y (movements) on the same threat level as ISIS.” Is this leaked information? Is it a leak (1) or is it state intimidation against legally constituted associations (2)? If (2), how, besides, is this not libelous? There can be no governmental immunity when a police bureau slanders and libels law-abiding citizens.
Neoconservatism: Jacobinism or Napoleonism?
According to Claes G. Ryn (America the Virtuous: The Crisis of Democracy and the Quest for Empire, 2003), the “neoconservative” influence on the American right is turning it into a new form of Jacobinism (doctrine of the French Revolution), and I’m not sure whether one should not call it Napoleonism instead, but both, blended in the doctrine of the current French state, are based on centralization, bureaucracy, flawed separation of powers (the judicial is controled by the executive), militarism (military parade on National Day: Trump wanted the same for July 4!), police state, no free speech…
“I must stay on the court in order to prevent the Bolsheviki from getting control.” Chief Justice William Howard Taft, 1929
It must have been no small peril as the Chief Justice could utter such words.
On the other hand there are those who trivialize the matter using the phrase “red scare,” blaming people such as Chief Justice Taft for irrationality.
The record of Communist parties’ participation in coalition governments in European countries (like France) remains unscrutinized. What you’ll find is their consistent voting for the curtailment of fundamental freedoms.
In June 1919 the Overman Committee of the U.S. Senate concluded that Communism in Russia was “a reign of terror unparalleled in the history of modern civilization.“
“Since 2011, the United States National Aeronautics and Space Administration (NASA) has excluded the Chinese government and China-affiliated organisations from its activities, including using funds to host Chinese visitors at NASA facilities.” (Wkpd: China exclusion policy of NASA)
In 1943 the Chinese Exclusion Repeal Act of 1943, or Magnuson Act, repealed the 1882 Chinese Exclusion Act, allowing for an annual quota of 105 Chinese immigrants, at the same time maintaining the ban against ownership of property and businesses by ethnic Chinese.
For those who think hate speech is unprotected, please read Snyder v. Phelps, 562 U.S. 443 (2011). The Supreme Court held that the WBC [Westboro Baptist Church]’s hateful picketing was protected speech. And Wikipedia correctly cites me as the source of the protection. ([a Twitter user named] The First Amendment)
“Hate speech” is a name found by those willing to shield group lobbying from people’s scrutiny. To those who’d retort that using the n-word and other such words isn’t “scrutinizing group lobbying,” I have this to say: “One man’s vulgarity is another’s lyric.” (Justice John Marshall Harlan)
Les émissions littéraires et les écrivains qui se rendent sur ces plateaux sont à la littérature ce que la télé-réalité est à la réalité : de la « télé-littérature ».
En France nous avons eu des ministres communistes et nous avons toujours des parlementaires communistes mais demander la même liberté d’expression qu’aux États-Unis est impensable.
Invasive Moderation (Part 3)
The Corporate Frankenstein
Twitter is going wild with their flags, trying hard to suppress even the truth. Just shows how dangerous they are, purposely stifling free speech. Very dangerous for our Country. Does Congress know that this is how Communism starts? Cancel Culture at its worst. (Pres. Donald Trump, Dec 24, 2020)
Twitter’s flags are Twitter’s free speech. But sure go with “free speech is how communism starts” and see how far that gets you. (The First Amendment)
As a few tech companies today have the power to stifle the “free flow of information and ideas” that the First Amendment’s aim is to ensure, to do nothing about it is to make fun of the Amendment rather than to pay it due respect.
To compare Twitter’s policy with an individual’s speech is bogus. A company follows a predefined corporate purpose. At best its speech should be construed as “commercial speech,” with limited protection only.
(Nota Bene: As in the next tweets I speak of the political speech of corporations, it should be clear to you that the statement here is about what corporations are in essentia according to me, like the “End Corporate Personhood!” message on the placard there [Middle Tennessee State University’s First Amendment Encyclopedia: Corporate Speech].)
Commercial speech has only limited protection: “For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.” (Central Hudson Central Hudson Gas & Electric Corp. v. Public Service Commission ). And in the earlier state of affairs commercial speech wasn’t protected by the First Amendment at all: see Valentine v. Chrestensen (1942). – An individual’s speech isn’t subject to these conditions.
As to corporations’ so-called “political speech,” since Citizens United v. Federal Election Commission (2010) it gets broad protection but the decision deals with “political speech in the form of contributions and expenditures on behalf of candidates and political issues,” not in the form of internet moderation affecting the free flow of information and ideas. Twitter Inc. has the First Amendment right to contribute financially to the campaign trail of a candidate, that’s all, there’s nothing about First Amendment protection for flagging other candidates’ tweets in the bargain.
Next time I’ll comment on Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968): “Logan dealt with right to use private property as ‘equivalent’ of public space.“
A corporation isn’t the government. The First Am. is applicable against the government or private entities acting under color of state law ONLY. And Twitter ain’t that. (Ava)
As the First Amendment cannot ensure the free flow of information and ideas against private encroachments, a statute is needed. I am arguing that that statute will be upheld against the private companies’ claim that it violates their First Amendment right.
Indeed, corporate speech has not as strong a status as citizens’ speech, all this ultimately deriving from the common law, where property is no source of absolute discretionary power.
The Supreme Court of the United States has to balance on one hand the free marketplace of ideas, which a statute will maintain, and on the other hand the rights of trustlike corporations, which a statute will regulate for the good of the commonwealth just as numerous statutes do already.
Corporate speech is twofold: commercial and political. Conceding that corporations’ political speech is equally protected (since Citizens United), that’s not the case of their commercial speech. This alone enables one to say that corporations have less First Amendment rights than individuals. => 1>.5+.2
But wait… how can you argue with… MATHEMATICS!??!?! (Allen)
Algebra is as good a form of logical thinking as another.
At least according to Bertrand Russell.
But a true algebraic formula here would be: 1>.5+x 0<x<.5 or 1>1/2+x 0<x<1/2
Given different >levels< of scrutiny by courts, one could easily translate the whole thing into algebraic formulae.
Because of Citizens United, courts will apply strict scrutiny on the bill I envision (as moderation by internet platforms such as Twitter would be deemed corporate political rather than commercial speech, and so receive full rather than limited protection). Precisely! I’m arguing that in any case the compelling interest called for by strict scrutiny exists, as it is about guaranteeing the free flow of information and ideas.
The First Amendment is a means to an end: the free flow. When people complain about private platforms not respecting the First Amendment, technically they’re wrong –correct– because they mistake the means for the end but in fact they are complaining about impediments to the flow.
Those who complain about platform moderation invoking the First Amendment mistake the means for the end but those who deny them the right to complain make the same mistake. It’s 1A for the sake of it; that is called fetish worship.
Commercial speech is speech that has a commercial purpose. Even an individual can produce commercial speech, and if so, is also subject to government regulations on commercial speech. i.e. commercial speech != [different from] speech by corporations. (Bob)
The difference is that there’s no corporation without commercial speech, without a part of it devoted to that sort of speech that was not even considered to be speech until the 1970s.
Think about it: “corporate-political-speech.” Where until Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976) corporations’ commercial speech wasn’t even considered to be speech at all!
“The McConnell decision [McConnell v. Federal Election Commission (2003)] largely rested on Austin v. Michigan Chamber of Commerce (1990), which permitted bans on corporate speech.” (From comment on Citizens United v. Federal Election Commission  in John R. Vile, Essential Supreme Court Decisions, 2018).
For 20 years corporate political speech was no speech at all in the United States.
“The Austin decision identified ‘an antidistortion interest’ in limiting political speech based on an attempt to prevent the effects of accumulated wealth.” That was the rationale.
Justice Stevens’s dissent on Citizens United is brilliant. Quotes (J. R. Vile 2018):
Restrictions on corporate expenditures date back to the Tillman Act of 1907. … The decision in Austin has not shown itself to be as flawed as the majority suggests.
The Court has long approved ‘the authority of legislatures to enact viewpoint-neutral regulations based on content and identity.’
The Framers had a much narrower view of the rights of corporations than the majority, and the original understanding has been substantiated by the history of regulation in this area.
The Constitution does, in fact, permit numerous ‘restrictions on the speech of some in order to prevent a few from drowning out the many.
The laws at issue are legitimate measures to prevent corruption and to protect shareholders from expenditures they do not support.
They [corporations] are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.
Just like about 40 years ago commercial speech emerged as speech, 30 years later, that is ten years ago, corporate political speech became speech. For what purposes have these sinister Frankenstein creatures been invented?
The (1) of Section 230 seems intended to prevent its (2), it protects providers from liability for content on their platforms, so providers have no reason to remove content –if they’re for free speech– as nothing can happen to them for content, 230(1) speaking.
I grant you immunity for any sort of content (1) and, whereas you should be content with that, I also grant you immunity for (bona fide) content removal (2). It’s called to have your cake and eat it too. Completely unbalanced. As they’re free to remove content, why can’t I hold them responsible for content they don’t remove?
You’re perfectly free to sue the person posting the offending tweet. (J_Rex)
Wouldn’t suing an anonymous user depend on Twitter’s will to disclose information about the user?
If you don’t like Twitter’s or Facebook’s rules you are perfectly free to create your own platform with whatever idiosyncratic rules you want. In fact, there are such platforms, notably Parler. (J_Rex)
I’m free to leave but at a cost (among other things in terms of audience) and Twitter, which, as one of the first movers, has an undue trustlike position on the market due to its millions of users, should partake in the cost. If such laissez-faire views were accepted, Twitter could staff its moderation office with lunatics and that would be just as good. It can and perhaps it does.
Advocacy of Illegal Conduct Is Lawful
In a previous lesson I told Diane, who had said “no speech is protected if it incites violence,” that she was wrong. She was wrong, but even competent persons make the same error: “These cases illustrate that the First Amendment applies to all groups so long as their intent is not to intimidate or incite violence.” (First Amendment Encyclopedia: American Nazi Party and Related Groups x)
When such conclusion isn’t from lack of knowledge, it’s lack of logical thinking. “Incite violence” isn’t the same as “incite imminent lawless action” (including violence) and therefore it is lawful to incite non-imminent violence.
“In NAACP v. Claiborne Hardware Co. (1982), the Supreme Court ruled that an economic boycott constitutes a form of constitutionally protected expression akin to traditional means of communication, such as speaking and writing, even if violence is threatened as a means of achieving group goals.” (First Amendment Encyclopedia : Boycotts)
I think the courts have held (properly) that there is a tight rope to be walked between allowing someone who is simply pissed off to vent their anger and someone who is actually intending harm. (Diane)
I’m sorry to disagree again. People who “threaten violence,” like in the Clairborne decision, “actually intend harm” (at least conditionally: if… then) and yet it is protected speech.
But Diane is probably thinking of the “true threat” doctrine. So I add that except for the unusual 2003 decision on cross burning that can be a true threat, generally speaking in case law a threat has to be kind of very clear, present, imminent, lawless and all to be (a bit) “true.”
If the courts want to be consistent with Virginia v. Black (2003) on cross burning and the vague notion of intimidation, they will have to smash down the very doctrine of true threat, even Brandenburg v. Ohio (on lawless imminent action) and the whole edifice of First Amendment law. The Supreme Court made a mistake.
The true meaning of the American First Amendement, its truly distinctive nature lie in the words “Advocacy of illegal conduct.” This distinctly American right is what makes all other peoples beside conscious Americans look like phantoms or trembling mice keeping close to the wall.
In Cleveland v. United States (1946), “Justice Francis W. Murphy dissented, largely based on anthropological analysis, arguing that polygamy differed from promiscuity.” #Mormon
Porn often promotes “plots” based on racism, incest, rape, sexism, or violence, and then says these themes are okay in porn because they’re “fantasy.” Why are we sexualizing scenarios that are never acceptable in reality? (FTND: Fight the New Drug)
On a First Amendment Encyclopedia I read of criticism of porn films… in the sense of literary criticism. So, as you talk of “plots,” that alone could be construed as “redeeming value” (which protects some explicit material from prosecution for obscenity). As there’s a plot, that’s a work of the mind, a work of art.
But let me ask, then. What if someone cuts up the sex scenes from the film and uploads them piecemeal? The public will inevitably miss the dialogues, the acting, the story, the plot, all the redeeming value, they will only be… watching porn.
On a marketplace there must be antitrust laws. What are the antitrust laws on the “marketplace of ideas”?
The marketplace of ideas is about speech and counterspeech but some are defining it as speech and speech-canceling.