Common Misconceptions about Constitutional Rights

The misinformation in public discourse about our most important rights – those protected by the Constitution – is apparent on discussion threads on every major issue.  The next time you see an incorrect statement about our constitutional rights, link to this blog post.   When people don’t know their constitutional rights, they cannot exercise them.

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Who is Allowed to Speak in the “Me Too” Conversation?

Earlier this month, journalists exposed Hollywood’s open secret that movie executive Harvey Weinstein harassed and assaulted female actresses.  Weinstein denies allegations of non-consensual sex, and he deserves his presumption of innocence in a courtroom, where evidence can be tested and weighed.  The conversation has, rightly, moved to larger cultural forces that sustained and facilitated Weinstein’s abuses of power.  Last Sunday, social media exploded with the hashtag “MeToo,” so that women who have been sexually assaulted or harassed can share their stories.  Soon after that, the meta conversation began about whether men, or gender non-conforming women, should also share their stories.

I believe that answer is a resounding yes.  Calls for silencing certain comments as irrelevant are an illegitimate, and counterproductive, way of simplifying and impoverishing a conversation.

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Politicizing Tragedies, and the Sins of the First Amendment

I began thinking about this post on Yom Kippur, the day when Jews ruminate on their sins.

This week, students affiliated with the College of William & Mary’s Black Lives Matter movement shut down a speaking event featuring an alumna from the American Civil Liberties Union.  The ACLU speaker had come to discuss “Students and the First Amendment.”  I do not support the tactic of hijacking a speaking event for one’s own purposes, even for a good cause.  A coordinated effort to shout down a scheduled speaker is not protected First Amendment activity.  Nor do I agree with the protesters’ sentiment that “liberalism is white supremacy.”  The protection of hate speech is a critical component of maintaining robust, viewpoint-neutral speech protections, and liberalism has likely promoted civil rights better than any other system of political thought.

However, the activists who refused to even let students interact with the ACLU’s Claire Gastañaga highlight an important point with which I have been reckoning: the First Amendment is process-based and somewhat justice-neutral.  The First Amendment provides a methodology – open exchange of ideas – for attaining truth and reaching the best results, but must remain fairly agnostic about what those results are.   My own views about the First Amendment, and my exaltation of open, dispassionate dialog as a way of reaching enlightenment, often lead to political paralysis or a ceding of political responsibility to others.  Strong belief in a values-neutral process like free speech can lead to political disengagement.   The aftermath of the heartbreaking events in Las Vegas provide a useful lens for my reckoning with the sins of the First Amendment.

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#TakeAKnee, Unity, and Public Versus Private Power

#TakeAKnee is a beautiful thing, all around.  Both the football and baseball players kneeling during the national anthem, and those criticizing the players, are all exercising their First Amendment rights.  The government cannot fine or jail anyone either for taking a knee in protest of police brutality against people of color or for denouncing Take A Knee as disrespectful to the flag and our military.  Our President is also empowered to express his opinions on the matter – as government speech – so long as his government does not threaten to jail or fine anyone participating in the protest movement started by former quarterback Colin Kaepernick.

The Take A Knee movement demonstrates why the First Amendment distributes power the way it does – preventing only government suppression of speech and allowing even a powerful entity like the NFL to suppress speech.  However, the movement also shows why one of its rallying cries, unity, is somewhat misplaced.  Indeed, what our free speech culture allows for is a diversity of opinions and approaches, even while we build community.

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A Theory of A**holes and Public Discourse

Our public discourse has become overrun by a**holes.  A contemporary theory, which explores when someone is behaving like an a**hole, provides a useful lens for understanding the ways we should and should not engage in public discourse.  This blog post applies the philosophical theory of the a**hole to approaches people take to public discourse – and asks when certain tactics are appropriate, if ever.

Philosophy professor Aaron James’s book, A**holes: A Theory,[1] brilliantly develops a coherent definition of the a**hole.  According to James, an a**hole is someone who (1) systematically enjoys special advantages in social interactions, (2) due to an “entrenched sense of entitlement,” and (3) feels no guilt or shame about taking unearned advantages because of this sense of entitlement.   James supplies ready examples of a**hole behavior (and even names names), but you do not have to agree with all of his examples to accept his theory – precisely because his theory depends on your views about what is and isn’t an unearned advantage.  James’s examples include line cutters; a**hole capitalists who believe that they deserve special treatment because they make more money; rockers who give interviews where they badmouth competing musicians; and academics who expect all of their work to be received well, and blame a failing system when this does not materialize.

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Masterpiece Cakeshop’s Opening Brief: The Religious Liberty Arguments

The opening brief and several amicus briefs have been filed in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  In the upcoming term, the Supreme Court will decide whether a baker’s refusal to create custom-designed cakes for same-sex weddings is protected by the First Amendment.  Amici filing briefs include Cake Artists, who argue that cake design is as expressive as other forms of art, and thus is as deserving of free speech protections.  Several amicus briefs filed by religious and civil rights leaders argue that the belief in marriage as a union between a man and a woman is not akin to “holding racist views about marriage.”

Last week, I blogged about the free speech arguments articulated in Masterpiece Cakeshop and owner Jack Phillips’s opening brief.  In this post, I will address their free exercise arguments.  Future posts will follow the case through the briefing, oral argument, and opinion – tackling the legal frameworks and precedents that will be most controlling on this case.

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Masterpiece Cakeshop’s Opening Brief: The Free Speech Arguments

Masterpiece Cakeshop and Jack Phillips have filed the opening brief in the much-publicized Masterpiece Cakeshop v. Colorado Civil Rights Commission.  This Supreme Court case will decide whether cake artist Jack Phillips had a First Amendment right to refuse to bake a custom-made wedding cake for the wedding of Charlie Craig and David Mullins.  I have previously blogged about some of the hard questions in this case.  I have also written about what Justice Gorsuch’s dissent in Pavan v. Smith forecasts about his vote in Masterpiece Cakeshop.

In this post, I will lay out what I believe to be Phillips’s most compelling free speech arguments, based on his opening brief.  In later installments in this series, I will discuss Phillips’s arguments based on the free exercise clause of the First Amendment.  After Respondents’ briefs are filed, I will cover the arguments that application of Colorado’s public accommodations law does not violate either the free speech or free exercise clauses of the First Amendment.  Once all the briefs are filed, I will begin to form my opinions about how the case should be resolved.

Masterpiece Cakeshop is an easily sensationalized case.   In what is being framed as a battle in the culture wars between gay rights and religious liberties, the implications may be enormous, and the symbolic force is even larger.   I want to focus instead on the legal doctrine and reasoning.  For those who feel strongly about courts’ adherence to the rule of law, coherent, satisfying reasoning — that honors both the breadth and limits of the First Amendment — should be as important, if not more important, than the result reached.

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Considering Disturbing Speech Versus Trauma

The tension between exposing students to a range of ideas and shielding students from undue offense or trauma is ever-present at our nation’s universities.  How we resolve this tension is critical for the legitimacy of private universities, where academic freedom depends on a university’s main role being the dissemination of knowledge and encouragement of new ideas, not its serving as another political actor in a quest for a particular view of justice.  The proper resolution of this tension is even more critical at public universities, which must also respect the First Amendment’s broad free speech guarantees.  George Will’s opinion piece in The Washington Post on the “contextualization” of a statue at Yale, while extreme and ahistorical, makes important points about the way universities infantilize students and pathologize their emotions, leading to a decreased sense that students can manage their own emotions and handle disturbing and new ideas.  Using First Amendment lenses, I want to add some nuance and contextualization of my own to Will’s piece.

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Tina Fey’s “Sheet Caking” Bit, and Why Discourse is Breaking

The debate surrounding Tina Fey’s “sheet caking” comedy bit demonstrates some problematic  directions that discourse may be trending.

The discussions we are having as we grapple with the proper response to increasingly visible white supremacy, which many believe is condoned by the President, are critically important.  As someone who writes and teaches First Amendment and free speech culture, I think our discourse on these topics is breaking down.  I am glad that cities and universities are removing statutes honoring Confederate soldiers.  Every one of those relics, which are rightly perceived by many as honoring slavery, should come down (although not by vandalism, but by local, democratic decision-making).  I am also glad to see citizens contending with our racist history and how that history has affected our current cultural, political, and socioeconomic climate.  However, the reaction to Tina Fey’s bit evinces the tactics of perverting our First Amendment paradigm and negating someone’s views based on her identity.  Both methods are bad for discourse.

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Free Speech After Charlottesville

The deadly events in Charlottesville, where a white supremacist killed Heather Heyer and injured several others after a Unite the Right rally, have created a free speech reckoning for many, myself included.  After much thought, I have landed on the following ideas as ways forward.

Let’s not abandon viewpoint neutrality.  In an age where our President seeks to uncover the identifies of those who visit a website that coordinates protests against him, our First Amendment protections are more important than ever.  Indeed, in these dark times, our uniquely robust free speech protections are one of the few things that make me proud to be an American.

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