• Free Speech and Fair Play are a Bitch

    July 14, 2023

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    Posted in: Democracy

    If there were two lessons from the high school civics class most Americans seemed to skip that they should learn now they are: rights are for everyone and free speech sometimes protects speech you don’t like yourself. Luckily, the Supreme Court recently offered America a tutorial on both topics.

    In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina the Court made the common sense ruling that discrimination of some colors of people is a poor way to fix discrimination of other colors of people. What woke mind could possibly conceive that the 14th Amendment’s equal protection under the law meant treating a large portion of the population grossly unfairly at the expense of another? Kind of a common-sense argument but one America needed to travel all the way to the Supreme Court to resolve.

    Starting back with 1979’s Bakke and largely confirmed by the Supreme Court in 2003’s Grutter, America’s higher education institutions decided it was they who would fix systemic racism in America by offering preferential treatment by race, specifically, white and yellow colored students were considered less deserving of a good education at say Harvard, and had to sit out the Ivy League so that some black and brown kids could take their places. The word for this back in the day was not racism (which it was) but “affirmative action.” It would right wrongs. This “reverse discrimination” was allowed through some clever word play because its goal of a diverse student body was considered a “compelling state interest” that overshadowed other compelling interests, such as equal protection for all under the law. It was sanctioned by the Supreme Court of its day, but only as a temporary solution; Justice Sarah Day O’Conner in one of the key cases upholding affirmative action wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

    It didn’t seem to work, short or long term, in significantly changing society, if black and brown activists of 2023 are to be believed. Decades of pushing aside white and yellow kids (the former privileged because once upon a time other unrelated white people owned slaves and the latter just too damn hard working and smart) for black and brown did not seem significantly change society. There are of course individual examples, both fake (blacks or browns who would have succeeded in any system) and occasionally real, true by-their-bootstraps stories once they got that helping hand.

    “When affirmative action was conceptualized, it was to right past wrongs,” one commenter said. “Then, it became sort of endless. It wasn’t just African Americans. It was Native Americans and Hispanics. And then it was women, LGBT, etc., and that wiped out the moral imperative of it a little, because diversity is not quite as strong a claim as correcting past wrongs.”

    There were other problems. Letting someone into Harvard is not the same as him succeeding at Harvard. I learned that in high school too, by the way. If some program had sent me to an Ivy school at age 18 I would have failed miserably, coming out of a non-rigorous but nice enough Ohio high school where upon graduation I had neither read one classic book nor written one proper research paper. I think Harvard expects you to know that kind of thing and white as I am, I would have floundered. I’m sure they have some sort of remedial program for their unqualified students but it seems unlikely to make up for many years of half-hearted education before it. And that exposes another dirty little secret about why affirmative action failed; America is divided by class, not race (though the two overlap in a Venn diagram.)

    America’s second recent high school civics lesson is you as an individual may not like everything other people use their freedom of speech to say and do; in fact, their deeply held beliefs may run 180 degrees from yours. Protip for exam time: this is the whole point of the First Amendment free speech clause and it was on display in another recent Supreme Court decision, 303 Creative v. Elenis.

    The crux of the case is that one side, a web designer, wanted to know what would happen if she refused to produce a hypothetical celebratory wedding page for a gay couple, claiming her religion did not allow her to support same-sex marriage. The couple would have sued because of course they would, likely claiming as a protected class by sex in Colorado, the cake maker must be forced by the government to make the cake they wanted celebrating their nuptials. Lower courts had weighed in in favor, claiming various cake makers, florists, and web designers must be forced to practice their craft (i.e., their expression, their speech) to avoid LGBT discrimination. It was as if one side had more rights than they other and would have resulted in the government of the United States using the threat of arrest or fine to force the web designer to produce speech she was opposed to.

    That’s a big no-no in a democracy, compelling speech.

    Though the state can demand businesses provide goods and services to all customers in protected categories, it cannot demand individuals engage in speech proclaiming messages that they oppose, such as in web page design. In Justice Samuel Alito’s words, a win for the state of Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”

    This all goes back to 1943’s West Virginia Board of Education v. Barnette when during WWII the Supreme Court held West Virginia could not make Jehovah’s Witness students pledge allegiance to the American flag. The decision contained arguably the most famous finding in American First Amendment law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key finding in 303 Creative is the designer is not denying a service on the basis of status of a protected class but instead refusing to engage in speech because she disagreed with its message (Masterpiece Cakeshop failed to yield a definitive ruling and is not relevant here.)

    Despite all the hub-bub, the Court correctly applied the broader civics class way of thinking in 2023, focusing on the First Amendment speech clause, and said nothing directly about the more contentious and limited religious aspect of all this, and passed on 2023’s wokist definition of discrimination. Had the recent case involved a Jehovah’s Witness’ web page and not ostensibly something to do with gay rights, you would barely have heard of the matter even though the real significance would have been about the same.

    It’s easy to forget most of what you heard in high school, especially in a one-off class like civics. But common sense can get you a long ways. It is easy to write off the Court’s decision in Students for Fair Admissions as discriminatory, with only a little thought that what it did away with — affirmative action — was discriminatory as heck. Same for 303 Creative v. Elenis, which is being promoted by the MSM as anti-LGBT thing when in fact it is an example of how robust our First Amendment is. At the Founding no one could have conceived of a free speech battle between a web designer and gay clients, but that is what the First Amendment expanded to take in. The Supreme Court has not gone rogue, and democracy is not in danger. These two recent cases prove if anything the system is flexible for the times and robust in defending the most basic freedoms a democracy is built upon.



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  • Recent Comments

    • Rich Bauer said...


      Now debate the legacy loophole to allow lesser qualified students into dear Harvard.

      Free Speech ain’t free. Money talks…always.

      07/15/23 8:39 AM | Comment Link

    • Rich Bauer said...


      Poison Ivy: WHILE blacks and Asian applicants fight for the small crumbs of admission allowed for them, legacy students are up to eight times more likely to be accepted at elite colleges.

      In the affirmative action cases currently before the Supreme Court, rarely seen admissions data has been made public and it shows that children of Harvard alumni were accepted at a rate of 33.6 percent in the classes of 2014–19, compared with 5.9 percent for non-legacies, according to a 2021 report in the Boston Globe. As more and more high schoolers apply to top schools, their chances tumble while the acceptance rate for legacies remains constant.

      And because so few parents of color have graduated from these colleges, legacy admissions remain overwhelmingly white.

      Note: these legacy applicants do graduate at rates equal to the general student body.

      07/15/23 9:56 AM | Comment Link

    • John Poole said...


      Bauer- higher education has always been primarily a business. Notable universities have been clever to mask that fact. It makes sense to give priority to legacy applications who I assume contribute more to the endowment fund. How much has Clarence Thomas given to Yale? Better yet, did he want his adopted kin to go to his Alma Mater? I doubt it.

      07/15/23 9:46 PM | Comment Link

    • Rich Bauer said...



      “Who RulesAmerica” is a must-read. The ruling class of the US requires an Ivy League degree to gain admission on Wall Street. Legacy admission discrimination in the Ivy League perpetuates this ruling class structure.

      Peter is naive not to think democracy is in danger. It has been since the beginning. The Roberts Court Citizens United ruling just makes it obvious.

      07/16/23 10:16 AM | Comment Link

    • John Poole said...


      Bauer I think most of us should get used to the idea that living in a Democracy was not only an illusion but a luxurious form of arrested knowledge. The ruling elite know they need only perhaps five million “workers”(proles)today. They will find a way to ensure their sybaritic lifestyle is not threatened -they always do. It is built into our DNA.

      07/17/23 9:32 PM | Comment Link

    • Rich Bauer said...



      One has to wonder how Peter can delude himself that justice can be expected from the corrupt Supremes when we witness the revelation of bribes—ahem, favors by “good friends”. The lesson in high school Peter seems to have skipped is the 1% own half of the stock market and all this bullshit about free speech is meant to distract the peons that they will have to settle for common cents.

      07/18/23 6:30 AM | Comment Link

    • Rich Bauer said...


      Peter: America’s second recent high school civics lesson is you as an individual may not like everything other people use their freedom of speech to say and do; in fact, their deeply held beliefs may run 180 degrees from yours.

      For x-ample, if you deeply believe a private citizen is a Deep State agent, say like Ray Epps, and you deeply believe he was involved in a government conspiracy to destroy MAGATs, then you are free to print your suspicions. And, of course, such a private person is free to sue your ass for libel.

      Ain’t Amerika great again?

      07/19/23 10:57 AM | Comment Link

    • John Poole said...


      Bauer-are you emotionally prepared for the approaching 2024 POTUS election? The incumbent challenger dynamic may induce a long dysfunctional governing period for this shaky constitutional republic.

      07/20/23 7:36 PM | Comment Link

    • Rich Bauer said...


      Fair Play…really?

      According to IRS tax receipts, Jeff Bezos paid a 23.2% tax rate from 2013 to 2018, far below the top tax rate of 37% that applies to the ordinary income of high-earning Americans. Elon Musk paid 27%. Microsoft’s Bill Gates and Oracle’s founder Larry Ellison saved $125 million and $106 million respectively on their annual taxes, paying effective rates of 18.4% and 21.8%. The report also makes special mention of Michael Bloomberg, who only had a 4.1% average effective tax rate from 2013 to 2018, thanks to well-timed charitable deductions.

      Peter should have skipped his Civics classes and studied economics. The Rich always get their money’s worth in paying for the political process.

      07/21/23 11:13 AM | Comment Link

    • Rich Bauer said...



      I hope you are not deluded that anything meaningful will change whether Dems or Repugs are in the White House post-2024. The MIC gravy train has only one track- onward and upward. As long as fools like Putin fall into its trap to keep the gravy train rolling, money will continue to flow into NATO whether Biden or another is elected.

      Dumbass Demented screams the election was rigged by the Deep State. Of course, being in the deep pockets of the Rich, Demented wont admit the Game is rigged. The Rich will continue to keep dumbass Americans fearful of the Other, lest we direct our aim at them.

      07/22/23 11:13 AM | Comment Link

    • Rich Bauer said...


      Karma is a bitch

      Remember when Tricky Dick was busted by the WH audio tapes and the missing minutes of tapes his staff deleted? Well, folks, there are security video tapes that Demented tried to go missing, but his staff was as stupid as he was. Karma is a bitch and Trump may be the bitch in his prison cell. And we thought the Moscow sex tapes would be revealing. Cant wait to see Demented’s prison bitch sex tapes.

      Tape it. These guys just never learn.

      07/27/23 9:34 PM | Comment Link

    • Rich Bauer said...


      And kids, before I head to Colombia for some needed vacation to escape 100degree temps, I will leave you with a lesson that we all learned in life:when someone says stupid things and does stupid things, they really are stupid. And stupid people don’t mean well.

      07/28/23 4:40 PM | Comment Link

    • Rich Bauer said...


      “These two recent cases prove if anything the system is flexible for the times and robust in defending the most basic freedoms a democracy is built upon.”

      As we says in Colombia, “talk is cheap when people will do anything for money.” As Colombians learned, you got to put your life on the line to defend democracy. What we have in the United States is millions of Trumpian bullshitters who talk a good game they really believe the election was stolen but would never put their lives on the line to defend democracy. What will they do when a Soros Demigod or Trumpian dickhead really steals an election? Sit home watching Fox and free speech bitch about it wont defend democracy. Of course their apathetic response speaks loudly. It is just bullshit talk by ignorant people who have been lied to all their lives, that they swallow it gladly.

      08/2/23 9:34 AM | Comment Link

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