Posts Tagged ‘first amendment’

Almost every debate in American politics, about the law and what things it should or should not allow, brings up the issue of constitutionality.

The US Constitution, drawn up in the late 1700s when little ol’ America was just starting to cut loose of the apron strings and make its own way in the world, has formed the bedrock of its legal system ever since, and provided vital and unassailable decisions on how hundreds of millions of people’s lives should be run.

I’m not really a fan.

Don’t get me wrong, it’s got some good ideas. It’s just weird how reverentially it’s treated sometimes. A lot of major political players and law-makers seem to act like it’s the unquestionable be-all and end-all of every legal dispute that can be imagined. If what you want to do is unconstitutional, no dice, end of.

And I don’t get it. If you share the values it espouses, then by all means embrace it for that, but… You do know that whether or not something matches up with what some guys 250 years ago had in mind isn’t as important as whether it’s actually a good idea, right?

I’ve seen this a number of times with regard to gun control. People who like their guns point to the “right to bear arms” guaranteed by the Constitution, while those on the left often claim that this was only intended to refer to the 18th century weaponry that existed at the time it was written. The country’s founders couldn’t have predicted the range of pistols, assault rifles, and the like available today, and wouldn’t have condoned their unchecked possession.

It’s hard to imagine what could be less useful to the gun control conversation that the imagined and hypothetical opinions of some people two centuries dead on the subject of modern technologies of which they had absolutely no knowledge. Can’t we try to be smart and figure out how it makes sense to act, based on what we know now?

Actually, you don’t even have to go as far as the Second Amendment to find a good example:

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.

This is generally about the government staying out of people’s way, which is largely a good thing. But the question of exactly what constitutes “freedom of speech”, against which no law shall be made, is a notoriously knotty one. There’s no mention of fraud, libel, or shouting “Fire!” in a crowded theatre anywhere in the clause. There have been numerous legal decisions since the Constitution regarding these subjects, as well as on things like obscenity and campaign finance, and the law itself acknowledges a good deal of nuance to an obviously complex issue.

But it still tends to be framed around whether certain harmful or undesirable forms of speech or expression are “constitutional”. It always seems to be about whether something “counts” under that part of the Constitution. Surely a decision to restrict or punish certain types of behaviour should stand on its own?

In practice, I imagine it usually does. The law is trying to reflect what behaviours are actually desirable or should be punished, and it probably doesn’t make a lot of difference that technically this takes the form of contrivances and qualifications being continually added to those important, constitutional principles. It just seems a strange obeisance to continue making.

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Well, this is just tragic.

So the “Ground Zero” “Mosque” is being loudly opposed by many, who are against the idea of allowing Muslims to build a place of worship sort of near to where some extremists did something terrible nine years ago.

But a lot of the time, their arguments are focused on the sensitivity of the centre, rather than the legality of it. They think that it lacks compassion or respect to establish this building, with its basketball court, swimming pool, theatre, and other such un-American abominations, a mere five-minute walk a couple of streets away from the “hallowed ground” where the World Trade Centre once stood. The fact that this private organisation might not be legally permitted to build on this privately owned ground hasn’t seemed to be a big part of the dialogue.

The protestors don’t want it to happen, certainly, but this always seemed to be more on the grounds of personal offense than any real legal objection.

Clearly much of the offense is itself misguided, too. There’s a lot of divisive rhetoric that seems to assume that “we” were attacked by terrorists, and now “they” want to build some kind of terror-shrine on the site of “their” victory. Fox News are doing a fine job of making the scary Muslim bigwig with the suspicious foreign-sounding name who’s behind the community centre (and who also owns a large chunk of Fox News) sound scary.

But critics have tended to try to steer the discussion away from being a legal argument. Perhaps this is just because they know they have absolutely nowhere to stand in a legal argument, and so trying to brush aside people’s rights by constantly parroting that it’s “not a matter of religious freedom” is the best they can do.

Except it turns out that maybe I’m giving people too much credit. I’d assumed they were mostly just stupid enough to think that their personal indignation means a damn when it comes to other people’s freedom to exercise their own business. But apparently a lot of them are a whole different breed of idiot.

Just barely half of people recently polled believed that there is a constitutional right to build a religious building on privately owned property. Almost half either were convinced that no such right exists, or were not sure.

And although there is a notable split along party lines, that’s not especially comforting either. One in four Democrats also gave this question a firm “No”.

I’d really like to see the answers to some follow-up questions here. Do this quarter of Democrats – and more than half of Republicans – think that a Christian church would also be illegal in this location? Or do they think that the First Amendment contains a special provision to account for when people would be upset? Maybe they’ve read a little-known footnote added by Thomas Jefferson at the last minute, reading “unless they look foreign and weird”?

The most elaborate argument any of them have against this centre – the most profound and compelling reason they can find for restricting other people’s rights – is essentially a tutting noise.

I sometimes wonder why it always seems to be the lunatic right who are incapable of distinguishing their own personal preferences from everybody else’s rights, and why they’re the ones who assume that anyone else is ever obliged to give a fuck about where their moral outrage is pointed this time. Apparently this is my answer. There’s no hope on the left, either.


No, you know what, fuck that. I’m not ending this on a sigh, and just exasperatedly concluding that the world is doomed. There are still large swathes of people out there – millions of them, perhaps even a majority – who are capable of looking beyond the still raw wound of this colossal violation, and not letting it taint their perception of the entire world from then on. A lot of people can still maintain the presence of mind to distinguish the hateful from the innocent, even in the wake of national and personal bereavement. There are many people responding to the Islamic community in America with compassion, and establishing relationships even with those religious people who share a faith with the terrorist monsters behind this atrocity.

Also, here’s one Republican who supports the liberal, decent position on religious rights: Ted Olson, Solicitor General under President Dubya, whose wife was on a plane and killed on 9/11.

That’ll have to suffice as a unicorn chaser for now. I’m having a lazy evening at home, and sometimes at work I have to actually, like, work, so I’m a bit pushed for time.

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I didn’t know who Dr. Laura was until she got fired.

The idea of a friendly-sounding general advice guru who wants to be called “Doctor Firstname” is something of a cliché, but I guess it’s mostly an American thing, and I’m not usually aware of the specific examples who are well known over there. Dr Phil’s about the only one I’d recognise, and he seems benevolent enough; as much as Sarah Palin may have put people off it, being “folksy” isn’t a crime in itself.

So I wasn’t that interested at first when I heard that one of the other ones had been fired for being racially insensitive somehow. A lot of people still don’t seem to really realise how careful a lot of broadcasters and advertisers want to be around that kind of thing, and how careful they need to be themselves when speaking in public as a result. I didn’t really care whether some exec was overreacting, or whether Dr. Laura was just a bitch.

But then I heard the show. And… wow, Dr. Laura is a bitch.

This might not actually be news to anyone. Some of her less-than-progressive views inspired this open letter regarding certain other prohibitions laid down in the Old Testament, which in turn gave rise to this scene from the West Wing, where Martin Sheen verbally bitchslaps a woman explicitly intended to be a Dr. Laura caricature.

Most recently, a black woman called in to Dr. Laura’s show, seeking advice about dealing with racist comments made by her white partner’s friends. This is what happened on The Dr. Laura Program on August 10, 2010, as broadcast and transcribed on The Colbert Report on August 18th:

Schlessinger: Well, can you give me an example of a racist comment because sometimes people are hypersensitive…

Caller: How about the N-word? So the N-word’s been thrown around…

Schlessinger: Black guys use it all the time. Turn on HBO, listen to a black comic and all you hear is n*****, n*****, n*****. I don’t get it. If anybody without enough melanin says it, it’s a horrible thing. But when black people say it, it’s affectionate.

Caller: I was a little caught back by the N-word that you spewed out, I have to be honest with you. I hope everybody heard it.

Schlessinger: They did, and I’ll say it again – n*****, n*****, n***** is what you hear on HB…

Caller: So what makes it…

Schlessinger: Why don’t you let me finish a sentence?

Caller: OK.

Schlessinger: Don’t take things out of context. Don’t double N… NAACP me. You know what? If you’re that hypersensitive about color, and don’t have a sense of humor, don’t marry out of your race.

Is it worse than you thought it was going to be? It’s worse than I thought it was going to be. And she wasn’t done; eleven N-words in five minutes was the final tally.

I don’t need to explain to you sensible folk why Laura Schlessinger is evidently a terrible person, but it’s worth reiterating. Racism is kind of a big deal. In the most modern parts of the English-speaking developed world, you only have to go back two or three generations to find black people who were owned as property. We’ve moved on a good way since then, but we’ve still not left all racial tensions and inequalities behind – as the person calling in here for advice knows only too well.

Her white husband has friends who it seems regularly use the N-word in her presence. The context isn’t clear, but even if it’s not been directed straight at this lady in an abusive fashion, she’s been made uncomfortable enough by its use that she’s phoning a talk radio show for advice. That’s the context that Dr. Laura is so keen for us to remember.

It’s an extremely loaded word, and the history attached to it is both monstrously oppressive and painfully recent. It has the capacity to convey careless contempt and disregard for millions of people more effectively and viciously than anything else in our language.

But to Dr. Laura, none of this particularly matters.

What’s much more important to her is defending her own right to shout a racial slur repeatedly at a black woman who’s just been saying how much it upsets her. The thing she’s most concerned about standing up for is her own defiant petulance – yeah, I said it, and if you don’t like it, I’ll say it again.

It doesn’t require a great deal of imagination to understand that some words are more offensive in certain situations than in others. For instance, I have a number of female friends who I will regularly call a bitch. They’ll then generally call me a cocksucker, and it’s all good sport. But if I talked to everyone quite that casually, some of them might object. It’d be bizarre of me to insist to every woman I encounter that they should consent to being called a bitch, just because it’s a word that can be used affectionately.

Likewise, some black people can use the N-word amongst each other in a manner that is not destructive or inflammatory. For that matter, some black people can probably handle hearing it from certain white friends. But, quite commonly, it’s used by white people against black people in a way intended to be cruel and derogatory, and so you really can’t assume it’ll be taken in the right way when there isn’t a pre-existing relationship there.

This is really not hard.

But Dr. Laura, who has been giving professional advice to people since 1979, “doesn’t get it”.

Something else she doesn’t get is what her right to free speech means. In response to the ensuing media attention, here’s what Dr. Laura said on Larry King’s show, on August 17th:

I made the decision not to do radio any more… The reason is I want to regain my first amendment rights. I want to be able to say what’s on my mind and in my heart, and what I think is helpful and useful, without somebody getting angry, some special interest group deciding this is a time to silence a voice of dissent and attack affiliates and attack sponsors…

See, it’s all about her first amendment rights. She has the right to say anything she wants, to anyone she wants, without suffering any negative consequences for it. It’s right there in the constitution, people. The Founding Fathers held it to be self-evident that Dr. Laura always gets to have a radio show where she can say whatever she wants, and if you express the opinion that she’s said something offensive, you’re crushing her first amendment rights.

She’s not actually been fired from the show or anything. She’s just planning to leave when the current contract expires. And she says that “her sponsors and affiliates have backed her”, implying that neither she nor her employers have lost out on anything because of any complaints that might have been made.

But people are saying that she shouldn’t have said what she said. And they shouldn’t be allowed to say that. Because they’re restricting her right to free speech.


Just to be clear, she really is perfectly entitled to utter whatever racial slurs take her fancy. But other people – like, say, the people who pay her money to help the people who call her for advice instead of deliberately offending them – are also entitled to distance themselves from her afterwards.

She’s not being a “voice of dissent”. She’s being an obnoxious bully. She’s asserting her right to offend other people, not against a serious threat that deserves to be defied, but against a minority demographic who simply resent being smugly reminded of the history of oppression they still face.

Anyway. In the spirit of free expression, I am hereby exercising my free speech to say the following:

Dr. Laura is a bitch.

Now, I insist that this be printed on a t-shirt which Dr. Laura then wears at a press conference. If she doesn’t agree to this, then she’s oppressing my first amendment rights.

Wait, I’m not a US citizen. Okay, if she doesn’t do it, she’s… breaking the… Magna Carta. Or something.

Yeah, you heard.

I’m waiting.

[Edit: Sarah Palin is also confused.]

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