• Safety or Liberty? The Constitution Says We Can Have Both

    October 31, 2017 // 3 Comments »



    Certain things used to be more, well, self-evident. A great many of us didn’t necessarily like, but understood, the First Amendment protected some speech we strongly disagreed with, or some speech that even made us afraid. We accepted there was an often uncomfortable duty to protect the right to speech irrespective of its content. We understood if we allowed government and institutions to block one person’s speech, even someone with terrible ideas, they could block others. Right up to when they came for us.

    Then a collective mental breakdown took place in November 2016, and an almost organic sense that overnight America set itself on the path to fascism became the justification for the weakening of the First Amendment. Free speech is now seen by many as a liability, an enabling tool for anyone one might label a “nazi.” Some 69% of American college students believe hate speech (“Using language on campus that is intentionally offensive to certain groups”) should be banned by the government. It is an increasingly common point of view that taking away someone’s right to speak, a tool of fascism, somehow protects against the encroach of fascism.

    And so welcome to The Ohio State University, which has refused to allow white supremacist Richard Spencer to speak on campus November 15.

    The attorney representing Ohio State said Spencer would pose a “substantial risk to public safety, as well as material and substantial disruption to the work and discipline of the University.” Ohio State was no doubt also thinking of the $600,000 the University of Florida claimed it cost to provide security for Spencer’s recent appearance there. The Florida response included hundreds of police officers from five jurisdictions, as well as SWAT teams and snipers.

    Both Ohio State and Penn State (also denying Spencer the chance to speak) are being sued for violating the First Amendment. Without explanation, nearby University of Cincinnati will allow Spencer to speak.

    The law does not appear to be on Ohio State’s side. Blocking a speaker to protect public safety is an absolute last resort, and some risk to safety is part of the cost of the unfettered speech a democracy needs to thrive. Freedom, it seems, really is not free. The security costs are in fact to protect the First Amendment in broad practice, not simply one man in the specific.

    The security problems Ohio State cites are not created by the speaker; they are created by the mob expected to oppose the speaker and on the assumption Spencer’s supporters will fight back. A historian lecturing across campus from Spencer on Babylonian art needs no police presence. Allowing the mob to have the final word on who speaks can in fact help create mobs where none otherwise exist. Placing a dollar test on free speech means it is only available to those who can afford it.

    These questions are not new. Public safety has been long (mis)-used to silence. The town of Urbana, Illinois arrested someone burning an American flag (an act long-held to be a form of protected speech) claiming he was in danger from bystanders. Similar thinking has been used to deny permits for civil rights marches, with law enforcement saying they could not protect the protestors. Both sides in the abortion debate have used this argument as well outside clinics.

    While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is rarely to ban speech outright simply to maintain order. One landmark case from 2015 provides some of the clearest guidance yet:

    “When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.”

    The case involved a group called the Bible Believers who used crude langauge (“Turn or Burn”) at an LGBTQ gathering. The judges continued in their opinion allowing the Bible Believers to speak:

    “We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.”

    The belief law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed other courts’ tests in cases are diverse as Occupy and where a Christian group brought a pig’s head to a Muslim Arts festival.

    I spent four years as an undergrad at Ohio State, and saw first-hand how the university can protect the free speech rights of a diverse group of speakers. A former member of the Black Panther party spoke in favor of racial violence. My time on campus was an era of fights for LGBTQ and other rights, and I saw massive police turnouts to protect gays marching across campus, and for a women’s “Take Back the Night” march through rough neighborhoods. Iranian students massed for anti-American demonstrations at a time when U.S. diplomats were being held hostage in Tehran. Meanwhile, Ohio State every other Saturday in the fall deploys a massive security presence for home football games, where the crowd rises above 100,000, multiples past who might show up to protest Spencer. Events likely to cause hardship to passersby are well-advertised, and students know to avoid them if they wish. Such events, past and current, clearly created the same “material and substantial disruption to the work and discipline of the University” that Ohio State fears Spencer will bring but were allowed anyway.

    And Ohio State knows things worked out smoothly last fall, in fact just days before the election, when the school welcomed white supremacist Milo Yiannopoulos to campus.

    Ohio State can do it, they just want to be able to pick and choose when they do it. And that is wrong.

    An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having Richard Spencer, or anyone, speak on campus are outweighed by the obligation to protect free speech. Getting rid of the speaker is expedient but unconstitutional. Maintenance of the peace should not be achieved at the expense of the free speech. It’s pretty much self-evident.




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    Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

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    Posted in Democracy, Post-Constitution America

    The Four Stories You Can Write About Trump

    March 6, 2017 // 27 Comments »



    It is nearly-impossible to write anything that purports to be objective about Trump. No one wants to read it. Instead, there are only four basic stories you can do.


    The Apocalypse

    These stories tend to appear in both the mainstream press (New York Times, Washington Post, cable news) and on left-of-center smaller outlets featuring Michael Moore and Robert Reich. They have headlines and indeed whole paragraphs announcing the end of democracy, the fall of the republic, destruction of the press, and so forth.

    Many have references to Hitler, or, if the writer has checked online, the burning of the Reichstag and WWII Japanese internment camps. If the writer does more than a Google search, you’ll see references to Weimer. The stories need to be more hyperbolic than the last one, and are usually framed around one Trump event inflated into a “historians will someday note this as a turning point, assuming they will still be allowed to write freely.”

    So, CBP wrongly detains someone = brownshirts are on the march, today the airport, tomorrow maybe in our home? Fear the 2 am knock on the door.

    As a bonus, these articles will often use dramatic phrases like “a clear and present danger,” “be afraid. be very afraid,” and end with an out-of-context quote from a Founding Father such as “The tree of liberty without our vigilance will be upended by an orange man as darkness gathers.”


    Related: Trump is Stupid and Evil

    These stories are basically a personal variant on the The Apocalypse, and are a staple of NYT Op-Eds by guys like Charles Blow, everything on Rawstory and HuffPo, and late night comedy shows like Colbert.

    Trump has small hands, a joke about Cheeto Jesus, homophobic jokes about Putin and bromance, a spell-checker typo blow up into proof of something sinister, that sort of thing. They’ll go as far as comedians calling Melania a whore and the Trump kid a ‘tard, followed by an apology if the Internet blows up. They also run as Tweets and Facebook memes that say Trump is mentally ill or has syphilis. Throw in a favorite failed-as-a-businessman tale.

    A lot of these stories are based around leaks from anonymous sources that are little more than gossip from interns, such as “Trump is said to chew on the ends of pencils, which many aides claim is embarrassing to the nation.” Look for headlines that have colons, such as Revealed:, Sources: or Report: and passive constructions such as “I’m told…”



    Trump is a Savior

    For anything positive about Trump, you have to look w-a-y right, often deep into the dank corners of the web where true racism and hate lie. The more centrist right media seems to spend most of its time debunking stories about The Apocalypse and Trump is Stupid and Evil, or arguing the meaning of fake news.

    Hillary Fan Fiction/Obama Revisionism

    These are really the sad stories. They will repeat that Hillary won the popular vote you guys, how she would have won except for Bernie, Jill, Stein, Comey and Putin, and/or focus on all the reasons Trump will be impeached (Emoluments Act, Russia, 25th Amendment, a military coup, Chinese buy-out, etc.) They are all textbook examples of denial, lead by once-sane academics like Lawrence Tribe.

    Right alongside Hillary fan fiction lurks Obama Revisionism. The last eight years were all unicorns and rainbows, with free healthcare falling from the sky while we all lived in racial harmony and celebrated each other’s’ diversity with vegan, gluten-free treats handed out to undocumented aliens at Whole Foods by smiling refugees.


    FYI: I have given up, and get the majority of my news now from watching old Spongebob episodes. Trump’ll get my NetFlix when he prys it from my cold dead hands.



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    Posted in Democracy, Post-Constitution America

    Punch Early, Punch Often – Smashing the Far Right

    January 25, 2017 // 30 Comments »

    NOTE: The following is a rebuttal to my own article explaining how stopping speech you disagree with via violence is wrong. I am reprinting the rebuttal in its entirety and with permission. I received a lot of comments on what I wrote, and this one below is pretty typical, albeit without as much profanity and personal threats/insults as the others.

    Jesus H. Jones,this infernal debate continues. Peter Van Buren, possessor of such a nice Aryan name and a defence so strident of Nazis right to free speech that he will probably not be in danger of imprisonment, execution or genocide if they win, has written a piece in The Nation as a riposte to Natasha Lennard’s article in the same publication.

    Van Buren’s argument comes from the standpoint of the first amendment to the constitution of the USA, the one that protects, on paper anyway, the right to free speech, freedom of religion and freedom of the press.

    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.

    Let’s stop here for a second and consider the words of that amendment. They look very nice, don’t they? But there’s a reason I said “on paper anyway”; Look closely and read between the lines. You’ve noticed haven’t you? First amendment rights have routinely been cast aside when they clash with the interests of the US American ruling class. People who agitated against the first world war were imprisoned for as little as printing pamphlets and newspapers or speaking in public, during the nineteen forties and fifties, people suspected of being communists were brought before the House Un-American Activities Committee, and now Trump wants Muslims to have to sign a register. So much for rights.

    Poor people too have ‘first amendment rights’ but rarely get to use them in the way the Van Buren is advocating for Neo-Nazi mouthpieces. When was the last time you saw someone from the slums of Detroit being interviewed about their political views on national television or publishing pamphlets or writing newspaper opinion pieces? I am reminded of the words of Anatole France in Le Lys Rouge, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” The first amendment to the US constitution protects the right to free speech for rich and poor alike, but that means nothing to someone living in poverty, or someone being burned out of their home for being the wrong colour or for practicing the wrong religion.

    In the article, Van Buren says that if you condone the act of punching a Nazi then you must condone the act of ripping a hijab off a woman’s head. That he considers these two things equivalent speaks volumes of the ‘moderate’ tendency to empty acts, and indeed words, of their meaning. Ripping a hijab off a woman’s head is an act of oppression. It says that this woman, who has said or done nothing to threaten anyone is a legitimate target for hatred and violence. Punching a Nazi on the other hand, is an act of self defence. Nazi’s are not just using words to get their point across, they are organising physical violence against people of colour, Muslims, LGBT folk and left wing radicals; They are actively threatening the lives of people who are different or who disagree with their world view. Their world view is to eradicate freedom in it’s entirety for the vast majority of human beings. That’s why they should be physically confronted, that’s why their movement must be smashed before it can wreak too much havoc.

    He also reduces the fight against the Nazis in WW2 to a “70 year old struggle between nation states.” No doubt, the entry of various states into war against the Nazis was prompted by threats to their Imperialist hegemony – in particular the USA entered the war because of the Japanese attack at Pearl Harbour, but people fought in their millions against fascism, from well before the war in Europe broke out, specifically because of what Nazism and Fascism represent – midnight for the human race, the victory of unreason over reason, racial nationalism, anti-communism, or as Orwell put it “a boot stamping on a human face forever.” (Orwell meant authoritarianism in general – both right and nominally left).

    If we don’t want to relive the horrors of Nazism, the racial laws, the genocide, the stamping out of all political freedoms, not to mention the war, that ravaged Europe in the mid 20th century, it is necessary to stamp it out in it’s infancy. It is a threat across the globe, here in Ireland the far right is small, but there is larger minority among us who will flock to them if they feel it is safe to do so. Until now they have feared to raise their heads above the parapet, and this is a good thing. When white nationalist movements have tried to go public, they have been physically beaten back. These actions protect the freedom of the vast majority of humanity. But now, in the wake of Brexit and Trump’s victory, the racists, the authoritarians everywhere are raising their voices. The comment threads in online publications are a cesspool of embryonic fascist thought. It only takes a small breakthrough for a far right organisation to rally these people behind its banner, and the likes of Peter Van Buren, and our own Irish liberal establishment, who enjoy debating fascists to prove their intellectual superiority, make those breakthroughs more likely.

    In Britain, France, Germany, Austria, Greece and the USA, the far right is a tangible threat to the freedom of the vast majority of humanity. Constitutional rights won’t stop them, only an organised anti-fascist movement that is well organised, prepared to take the fight to the fascists, to snuff out their ideas in their infancy and keep fighting until their movement is back in the dustbin of history where it belongs. We will be harshly judged by the future generations if we let them rise again.




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    Posted in Democracy, Post-Constitution America

    Torture and the Company We Keep

    December 16, 2014 // 28 Comments »

    proud-american


    A new poll finds majority of Americans — 59 percent — believe torture was justified after the 9/11 attacks.

    Look around you at the company you keep. The people who support torture, six out of ten, are your neighbors, your co-workers, the people on the bus with you. If you live in Washington DC, they are your children’s friends parents, the people at Safeway, the folks you go to church with.

    Now, let’s have a look at the company the United States keeps.



    Tortures Human Beings

    United States – YES
    ISIS – YES
    North Korea – YES
    China – YES
    Russia – YES
    Nazi Germany – YES
    Apartheid-Era South Africa – YES


    Uses Medical Personnel to Enhance Torture

    United States – YES
    ISIS – NO
    North Korea – Unknown
    China – Unknown
    Russia – YES
    Nazi Germany – YES
    Apartheid-Era South Africa – YES


    Maintains Third Country Detention Facilities

    United States – YES (including Poland)
    ISIS – NO
    North Korea – NO
    China – NO
    Russia – NO (once including Poland)
    Nazi Germany – NO (once including Poland)
    Apartheid-Era South Africa – NO


    Kidnaps/Renders People from Other Countries to Torture

    United States – YES
    ISIS – YES
    North Korea – YES
    China – Unknown
    Russia – Unknown
    Nazi Germany – YES
    Apartheid-Era South Africa – NO


    Sends Prisoners to Other Governments for Torture

    United States – YES (including Libya, Egypt and Syria)
    ISIS – NO
    North Korea – NO
    China – NO
    Russia – NO
    Nazi Germany – NO
    Apartheid-Era South Africa – NO


    Holds Prisoners Indefinitely without Trial

    United States – YES
    ISIS – Sort Of
    North Korea – YES
    China – YES
    Russia – YES
    Nazi Germany – YES
    Apartheid-Era South Africa – NO


    Kills Prisoners Under Torture

    United States – YES
    ISIS – YES
    North Korea – YES
    China – YES
    Russia – YES
    Nazi Germany – YES
    Apartheid-Era South Africa – YES


    Holds Innocents for Torture

    United States – YES
    ISIS – YES
    North Korea – YES
    China – YES
    Russia – YES
    Nazi Germany – YES
    Apartheid-Era South Africa – YES


    Assassinates Opponents

    United States – YES
    ISIS – YES
    North Korea – YES
    China – YES
    Russia – YES
    Nazi Germany – YES
    Apartheid-Era South Africa – YES


    Had Some Sort of Reconciliation Once Torture Exposed

    United States – NO
    ISIS – NO
    North Korea – NO
    China – NO
    Russia – Sort Of (Post-Stalin)
    Nazi Germany (Post-War)- YES
    (Post) Apartheid-Era South Africa – YES

    Claims to be a Christian Nation

    United States – YES
    ISIS – Hells NO
    North Korea – NO
    China – NO
    Russia – NO
    Nazi Germany – NO
    Apartheid-Era South Africa – YES, mostly.

    BONUS: Has its State Department write sanctimonious yearly human rights reports about other countries: USA! USA! USA!




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    Posted in Democracy, Post-Constitution America

    John Demjanjuk Not Killed by SEAL Team 6

    May 13, 2011 // 1 Comment »

    John Demjanjuk is evil.

    He was found guilty May 12 of involvement in the murder of tens of thousands of Jews by a court in Germany, capping a 30-year international legal saga. German prosecutors accused the 91-year-old former Ohio auto worker of being a guard at the death camp of Sobibor in Poland. He was charged with being an accessory to about 27,900 murders.

    Demjanjuk had a hand in 27,900 murders, as a part of the last century’s most horrific crime, the planned genocide of every Jew on earth that took more than six million lives. Yet, despite the scale of his evil, he was afforded access to court systems in three countries (US, Israel and Germany) and allowed to defend himself, even to the point of resorting to dubious legal tactics designed to draw out proceedings. During this 30 year period of legal fighting, Demjanjuk was not held incommunicado, was not tortured and was not prohibited from seeing a lawyer.

    Holocaust museum chairman Avner Shalev said “While no trial can bring back those that were murdered, holding those responsible to justice has an important moral and educational role in society.”

    We have faced down evil before, evil on scale that makes al Qaeda seem like rag tag amateurs. The system worked. This is justice. You defeat an idea with a better idea.



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    Posted in Democracy, Post-Constitution America

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