• Burn the Witches of Gaza

    June 3, 2024 // 6 Comments »

    My conundrum begins with the base concept that there is no such thing as hate speech according to the First Amendment. I believe something very different than the encampment protestors at Columbia. But I believe in defending their right to protest legally just as much. Makes for some uncomfortable times, but it’s the thought that counts.

    There are no laws against “hate speech.” Some people have developed an alternate understanding of free speech, with students in particular believing “offensive” speech should not be protected, particularly when the offense is directed at groups defined by race, religion, ethnicity, gender or sexual orientation. But the 1A says a speaker can call people names, and insult them by their religion. What many people think and say is hateful. It is in fact carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is the point. Free speech means just that, with any limited restrictions content-neutral. So there’s nothing in the law per se that prevents people from holding and/or shouting anti-Semitic views.

    BONUS: Much of what follows applies to Donald Trump’s own statements to the mob on January 6. His so-called inflammatory statements that morning are protected by much of the same law as the Gaza encampment people. It should make a college age ACLU donor proud to know her $25 contribution with Mom’s credit card helps the Gaza encampment people, Israel supporters, and Trump.

    But what about when that anti-Semitism extends to calls to violence, horrible stuff like signs asking for counter-protesters to become Hamas’ next victims? Brandenburg v. Ohio precludes speech from being sanctioned as incitement to violence unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that their speech will result in the use of violence or lawless action, and (3) the important one: imminent use of violence or lawless action is the likely result of the speech. A hostile reaction of a crowd does not transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.

    A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” No advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.

    The upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather or sports.

    But what about anti-Semitic speech such as “From the river to the sea [wipe out the Jews]?” Isn’t this the equivalent of that bit about shouting fire in a crowded theatre?

    The Fire! line comes from the Supreme Court decision in Schenck v. United States and is often cited as justification for limiting free speech. Justice Oliver Wendell Holmes said “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”

    The full decision says the First Amendment doesn’t protect false speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately, a “clear and present danger.” This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans and Nazis to march among Holocaust survivors, and yeah, the “river to the sea” thing. None of this extends to trashing a building or blocking a public highway.

    Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime.) The case was eventually overturned. The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence.

    But colleges and universities are not the government. Many are private institutions like X and Facebook that are not subject to the 1A. So shouldn’t they have the right to censor their students, the way X can censor tweets and Facebook block users?

    Academic administrators like to rely on the idea of “time, place, and manner” in their restrictions on speech. But public funding invokes the First Amendment for schools, though obviously if a school exists that accepts zero public dollars that’s another story. The legal argument extending the First Amendment to institutions accepting Federal funding is Rosenberger v. University of Virginia, where the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. Universities like Columbia, which accept pubic funds, are avoiding the 1A by claiming their protesting students are trespassing, or violating school Codes of Ethics that specify time, place, and manner of protests. Whether the latter would stand up in court is an open question.

    There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an end, it is a means, in a democracy. Even in the weeks before finals. It is messy as hell, and it is our essential defense against fascism, whether from the left or the right.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy

    Biden’s Foreign Policy; the Biden Doctrine

    January 22, 2024 // 4 Comments »

    Joe Biden ordered airstrikes on Iraq, against Iranian-backed militants, in retaliation for recent attacks by those militants that severely injured three American soldiers. Joe didn’t consult with Congress or anyone else before ordering the strikes, and no declaration of war exists of course. Yet no one believes the militias, following their spanking, will disappear or stop harming Americans.

    That sums up the Biden Foreign Policy, call it a doctrine if you’d like: a series of geopolitically unsuccessful, inconsequential, mostly reactive unilateral actions, with no end game. Underlying it all is the sense that no one is particularly frightened, respectful or wary of American power anymore. Let’s see how this worked on a global scale over the last three bloody years.

    The disastrous evacuation of Kabul in August 2021 should have warned all of us we were dealing with foreign policy amateurs. The rush for the last planes was an expected unexpected event. Yet the Biden administration did not quietly start the evacuation in February with high-value personnel, nor did it negotiate ahead of time for third country landing rights. Mistakes made as long ago as Vietnam evacuating locals who worked with us were clear, yet Biden did not kick start processing SIV visas for translators and others until literally the last flights were scheduled out. The entire evacuation appeared as an unplanned free fall, just “land some planes and see if that works.” No endgame really, simply a unilateral decision to cap the evacuation off at a certain point in time and declare it over no matter who was or was not saved.

    Ukraine is some yellowed vision of cold war. The Biden plan was based on a Wonka-like act of imagination, that U.S. arms wielded by amateur fighters backed up by intelligence, space-based targeting, and special forces infiltrated on the ground would hastily defeat a determined opponent (See Afghanistan, failure of the same strategy, 2001-2003.) When the miracle cure strategy failed, there was no Plan B except to continue to pour arms in to a war that had no clear end game, that was not winnable, only sustainable. Meanwhile, Biden restrictions on domestic mining mean the United States is the largest purchaser of Russian enriched uranium. If the Russians are scared of American power they hide that well.

    The results have not been better elsewhere. The 2022 Russian invasion of Ukraine preceeded what one pundit described as “the 2023 brazen Chinese spy balloon’s uncontested trajectory over the United States, the recent Hamas invasion of Israel, the serial Iranian-fueled terrorist attacks on U.S. installations in Iraq and Syria, and the terrorist Houthis’ veritable absorption of the Red Sea. America’s enemies had become opportunistic, not deterred.” Biden took the bait at each open-ended opportunity, and now Joe is dangerously close to letting Gaza and Yemen spiral into a global conflict.

    And so another “coalition” fight, this time in Ukraine with NATO, ended up a U.S. primary struggle. It is NATO mostly walking away from the meat of the Ukraine struggle, and the baby NATO coalition elsewhere of France, Italy, and others that was supposed to control the Red Sea breaking down. It is a thin gruel of happy talk about caring for civilians backed up by unlimited arms to Israel, handled so poorly diplomatically that the U.S. has inherited pariah status globally. The modern version of American power was demonstrated when Egypt snubbed Joe Biden’s visit over the mess in Gaza. The question of Palestine, always simmering, is now another major issue to divide Red and Blue and further polarize society. In addition to receiving $6 billion in frozen oil funds from Biden as a ransom for five American hostages, Iran controls the playbook, attacking with impunity via its proxies across Iraq, Syria, and southern Lebanon; Iran’s partners carried out more than 100 attacks on U.S. forces in Iraq, Syria and the Red Sea.  They decide if and when the 1:1 conflict with Israel goes regional, and the U.S. will be again forced to react. The Houthis, also Iran-backed, have dragged the U.S. into a broad promise to keep the Red Sea open to shipping, as the world rolls its eyes as Pax Americana once again looks like a punchline. Can anyone say we are still indispensable?

    Another Biden foreign policy disaster has come home, literally, in the immigration crisis. For reasons too vague to enunciate, the Biden administration did away with any semblance of immigration law and flung open the southern border to anyone interested in wandering in. Already more than eight million illegal entrants have come across, with another quarter-million entering each month. As in Ukraine and elsewhere, there is no endgame. When will the border close? How much will caring for the millions cost (New York City has processed more than 160,000 migrants; some 70,000 remain in the city’s care. In Denver, caring for the new migrants has consumed 10 percent of the city’s budget)? The United States has now exceeded, both in real numbers and in percentages, all past numbers of non-native born American residents. What impact on our greater society will such an influx have, especially given how it is targeted at a handful of cities? Will the Russians ever surrender? What about the immigrants?

    Three years ago, there was no war in Ukraine and certainly no U.S. military involvement in the Crimea and Donbas. Israel and Hamas existed in their tinder-like stasis condition, no brutal massacre of 1,600 Jews (30 of whom were Americans) and no invasion of Gaza. Campus protestors limited their protestations that they were not anti-Semitic in their hatred of Israel. Iran and the U.S. cooperated on fighting ISIS in Iraq, uneasy partners for certain but not shooting cousins as now. The Houthi struggle was confined within Yemen’s borders. On the positive side, efforts were being made to watch diplomacy bloom with North Korea, which instead is now test firing missiles aplomb once again. Biden has made no progress on China either to limit their opportunistic stance or reduce their hold over America economically. Biden has largely ignored most of Africa and South America as well as the world’s most populous democracy (and nuclear power) India. It is impossible to call it progress and all too easy to call it sadly the Biden Doctrine.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy

    Satire: Israel Destroys Lincoln Tunnel, Shells New Jersey in “Self Defense”

    August 17, 2014 // 7 Comments »

    Citing its inherent right to self-defense, an Israeli Defense Forces (IDF) spokesperson today announced his country had destroyed the Lincoln Tunnel, one of the main arteries connecting New Jersey with the island of Manhattan. Israeli forces also shelled New Jersey, causing additional hundreds of casualties.

    “With a ceasefire in place in Gaza while we reload for humanitarian purposes, we figured it was time to close off some other Hamas infiltration tunnels around the world. Our intelligence agents had long noted that many people who were either Indian or Arab or maybe Puerto Rican have been using the Lincoln Tunnel to travel from Jersey to New York City. We decided that to preserve the security of the Jewish State, we had no choice but to destroy the tunnel. That was that.”

    “As for shelling New Jersey, hell, we just felt sorry for them and wanted to put them out of their misery.”

    While steadfastly defending Israel’s right to self-defense, Barack Obama decried the loss of innocent lives. “It is always sad to wake up from my nap to hear some folks got whacked,” said the president, apparently referring to the 782 Americans killed as the Lincoln Tunnel collapsed into the waters of the Hudson River. “But let me be clear: Israel has a right to defend itself– wait, did I say that already? Whatever.”

    Secretary of State John Kerry was equally clear on America’s position. “Israel has an absolute right to defend itself, even though crappy places like Gaza, Russia, Venezuela and Iran do not. That said, the president has asked me to begin work on an immediate ceasefire in the United States. I have called Israel about this, but it went to voicemail and apparently they are not accepting texts. I have thus instructed my staff to friend them on Facebook and open channels of communication that way.”

    Kerry later that day vetoed a motion in the United Nation condemning Israel for attacking his own country, claiming “All the facts are not yet in.”

    “We also had Vanuatu voting with us in support of Israel’s right of self-defense,” beamed Kerry, explaining the U.S. offered the tiny island $4 trillion in aid for its support, “but at the last minute they had this really important thing come up and didn’t vote.”

    On background, the IDF spokesperson explained that even though it is common knowledge that the Lincoln Tunnel was opened in 1932, well before either Israel or Hamas even existed, Israel “just does not believe that, knowing how Hamas twists the truth.” Instead, he continued, “we are certain Hamas opened the tunnel solely for the purpose of taking innocent lives, and so for the safety of so many, we regretfully were forced to intercede.”

    “These people are freaking nuts,” retorted a Hamas media flack. “We’re buried under rubble here in Gaza drinking our own urine to survive, and those madmen think we built the Lincoln Tunnel? Oh wait, and let me guess, the Americans claim it was all part of Israel’s right to self defense, right? Don’t they even have a new excuse? Try the same line on your wife when you come in late five nights in a row and let me know how that works out for you. Excuse me now, I have to bury my child.”

    The IDF plans to take most of the weekend off. “That’s not say we won’t rocket an orphanage or two, but generally speaking we’ve accomplished what we set out to do. Also, none of this is like the Holocaust in any way, so stop that stuff. Are you anti-Semitic?” said the spokesperson.

    “Look, hate us if you want to, but if we don’t fight them over there, we’ll just have to fight them here,” concluded the IDF spokesperson.



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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy

    John Kerry Accidentally Sanctions Self

    July 23, 2014 // 4 Comments »




    “I’m still not sure exactly what happened,” said gaffe-prone, beleaguered Secretary of State John Kerry, “but I’m told I agreed to sanctions on myself.”


    In an exclusive, Kerry explained his mistake.


    “So there we were in the Middle East. I travel almost constantly, and at my age, even with a large staff, it can get hard to keep track. I mean, have you ever been to the MidEast? Every place looks like every other place. It’s hot, sandy, and each country seems to have some sort of odd headgear. Look, I’m not the first to get confused by all this.”

    “Anyway, so I’m tired. We’re in West-Somewhere-Stan, some forsaken patch of garbage with no oil, where the national export is dust, and I’m shaking hands for a photo op with what seems like the same orphan I shook hands in Baghdad, Kabul, Cairo and Tunis. Does that kid travel on the plane with me? We had had some local food for lunch which did not agree with me, and so I proposed sanctioning humus. Maybe it was sort of a joke, maybe I meant Hamas, maybe it was the Ambien talking. Next thing I know, the State Department spokesperson in Washington is telling reporters I have imposed a sanction on a beloved food product.”

    “It really hits the fan then. Half the Middle East turns around and imposes retaliatory sanctions on me. Those people can’t agree on something simple like not killing each others’ kids, and bang! overnight they band together on some silly food thing. I had hoped it was going to blow over after another suicide bombing like always, but then Israel joins in the sanctions against me. Cray cray, amiright?”

    Kerry leaned over to an aide, who confirmed for him that he had read his printed talking points correctly.

    “Can’t be too careful, right?” joked Kerry, now chewing on the edge of the note card.

    “So once Israel agreed to join every Arab nation on the planet in sanctioning me, my hands were tied. I mean, when Israel barks, I’m there with a Scooby treat, often a multi-million dollar treat. So, in a show of solidarity with Israel– who indeed has the right to defend itself against me, which I strongly support– I agreed to join the sanctions regime against myself. I even explained that the United States views the situation with concern to make it all official. Tomorrow I’ll add ‘grave concern.’ That’ll show me I mean business about myself.”

    “Next thing I know, everybody in the U.S. is on TV about it. I thought nobody actually watched those Sunday morning news shows, but it turns out that Fox has an intern who takes notes if she’s up early. Pretty soon all of the media has opinions on this, some former Ambassador is writing an Op-Ed and then Barack orders me to come home and not leave my room.”

    “So we get on the plane and I’m relaxing with a stiff drink when out the window I see three F-18’s escorting us. My pilot tells me they’re trying to force us to land somewhere, saying I’m violating my own sanctions by flying, plus I’m on the No-Fly list now. Guess what? I end up in Moscow! Nearest airport somehow. You’d think they had a lot of places to stay there with capitalism and all, but I found out all the VIPs are stuck in the same place, which was booked solid for the Ukrainian National Day celebration, and I get stuck on Edward Snowden’s couch for the night. Awkward.”

    “At least the guy is pretty quiet, though he leaves his towels on the floor in the shower. And who doesn’t flush? But we got along OK and he even helped me with my laptop. The State Department still runs some software thingie I’m told is called “Windows XP” and Snowden told me it hadn’t been ‘patched’ since ‘like when the first Matrix came out.’ I had left the paper with all my passwords on the plane, but he knew mine somehow. He even said he installed a free ‘keylogger’ for me and some other good stuff. I asked him if I needed a new laptop and he was adamant that I should never, ever stop using the one he had installed all that magic stuff on. What could I say? Hah hah, I can’t even program my VCR I told Ed.”

    “That was apparently funny, because my aide had to explain to Ed what a VCR was. Ed said ‘LOL,’ which made me feel good after all those sanctions.”

    “How it could the day get worse? One word– Vladimir Putin. Really, what is that guy’s problem? Putin shows up on TV opposing sanctions against me. C’mon, does that dude have to oppose everything we do? Yeah, apparently he does. So I have to throw together a press conference where I call out Putin for opposing sanctions on me, and call on the international community to robustly support even greater sanctions against me. The EU issues a statement saying they resolutely aren’t sure what their position is, and the press sniping starts all over. I’m stuck ‘accidentally’ saying into an open mic I’m personally really angry at myself for not upholding the sanctions. What a mess.”

    “Next thing I know, my own State Department starts Tweeting about the sanctions, hashtagging my sorry self with junk like #SaveALifeSanctionKerry. Worse yet, they’re sending me emails asking me to approve the Tweets about myself, something about policies come and go but bureaucracy remains. Man, me and Snowden had a laugh about that one. He knew my password for Netflix and so we just chilled after that.”

    “So here I am stuck in Russia with all these sanctions on me. I hear Obama is threatening to ‘ratchet down’ the sanctions on me if China doesn’t lower tariffs. I’d like to fly there and sort that out, but with the sanctions I’m really over a barrell. I can’t even use my card at the ATM. At this point I’m not sure what to do next. I’m thinking of calling up Jon Stewart and seeing if he’ll weigh in for me. He’s about the only guy left Barack really listens to. Wish me luck.”



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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy