Tag: freedom of speech

The First Amendment Is More than a Political Slogan

During the November 2010 election, a number of Minnesota voters were greeted at the polls with threats of criminal prosecution just for wearing hats, buttons, or shirts bearing the images, slogans, or logos of their favorite political causes (typically not relating to the Republican or Democratic parties).

Election officials cited Minnesota Statute § 211B.11, which makes it a misdemeanor to wear a “political badge, political button, or other political insignia” to the polls on election days. While there is no definition of “political” in the statute, an Election Day Policy distributed before the election explained that the statute bans any material “designed to influence or impact voting” or “promoting a group with recognizable political views.”

After several of their members were forced to cover up or remove clothing or accessories deemed to be political — in the sole discretion of an election official — a group of organizations and individuals brought suit to challenge the state law on the grounds that it unlawfully stifles core First Amendment-protected speech. The federal district court dismissed the suit, finding that § 211B.11 satisfied the lesser degree of judicial scrutiny to which viewpoint-neutral speech restrictions are subject. On appeal, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld the law’s constitutionality, citing precedent permitting bans on active campaigning at polling sites and extending that reasoning to allow prohibitions even on passive political expression.

Those challenging the law have now asked the Supreme Court to review their case. Cato joined the Rutherford Institute on a brief supporting them, arguing that the Minnesota law’s absolute ban on “political” materials at polling sites is an unconstitutional restriction of core First Amendment speech.

Protecting the right of the people to advocate political causes is one of the primary purposes of our constitutional protections for the freedom of speech, so government restrictions in this area must be narrowly drawn and for a truly compelling reason, regardless of the type of forum where the ban applies. While the Eighth Circuit relied on precedent permitting bans on campaigning at polling sites, prohibiting inert political expression at these locations doesn’t serve a similar interest; passive expression simply doesn’t pose the same threats to elections — intimidation and chilling of voters — that active campaigning can. Accordingly, § 211B.11 cannot pass strict scrutiny; in legal terms, the restrictions it imposes are simultaneously under-inclusive, over-inclusive, and overly broad.

The Supreme Court will decide whether to take the case of Minnesota Majority v. Mansky late this fall.

New Mexico Court Is Wrong: Government Must Treat People Equally, but Individuals Should Have Liberty to Speak, Associate, and Believe

On Thursday, the New Mexico Supreme Court ruled in Elane Photography v. Willcock that the First Amendment doesn’t protect a photographer’s right to decline to take pictures of a same-sex wedding against the requirements of the state’s Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. This is a terrible result, for the freedom of speech and association, and for religious liberty. As I’ve argued before, even supporters of marriage equality (and equality generally) should not be blind to other violations of fundamental rights.

The New Mexico law is one of multiple state and federal “public accommodations” laws that prohibit private discrimination by companies that offer services to the public. These laws are antithetical to liberty and forbidden by the Constitution. The Supreme Court held in 1883’s Civil Rights Cases that the 14th Amendment – the provision that speaks to equal protection – doesn’t authorize Congress to legislate against discrimination by private citizens.

A hundred years later, however, the Court held that such power exists under the Commerce Clause – even where the business is confined to a single state. This is just one more instance of Commerce Clause abuse, something Cato has fought on numerous occasions, including the successful Commerce Clause challenge to Obamacare’s individual mandate.           

The legislation at issue in Elane Photography didn’t come from Congress, so the question of federal power doesn’t arise. But even if a state legislature has the authority to act in a specific area, that authority can’t be exercised in a manner that violates the constitutional rights of the those subject to it. Yet the New Mexico high court disagreed with the position we took in our amicus brief and held that compelling someone to engage in artistic photography somehow doesn’t violate the freedom of speech if they aren’t forced to broadcast a government-sponsored message (for more on the inadequacy of the court’s ruling see comments by Dale Carpenter and Hans Bader). 

Even if you agree with the court that New Mexico’s law doesn’t violate Elane Photography’s speech rights, however, it clearly violates the company’s freedom of association and freedom of contract – two rights which, while not explicitly named in the Constitution, are clearly implicit in our understanding of “liberty.” The right to freely associate and contract with others must include a negative right not to do so – or the right is meaningless. This isn’t a defense of bigoted business practices, but a defense of choice, and it applies across the board: I don’t like homophobia, or racism, or any other number of irrational or even deplorable attitudes, but as I said on 20/20 earlier this month, being a jerk isn’t illegal.

If a restaurant doesn’t like how you’re dressed, it has the right not to serve you. No shirt, no shoes, no service, no problem – or, at least that’s the way it should be. My property is my property and my time is my time. I have the right to sell or rent both to anyone I want – or not to, as the case may be. We don’t need a government forcing businesses to serve people because the market will do that for us: refusing customers – refusing to make a profit – over something as irrelevant as a customer’s skin color or sexual orientation is a losing business strategy. 

Unfortunately, the Supreme Court has been hostile to freedom of association and contract since the 1930s, notably in the 1984 case of Roberts v. U.S. Jaycees, where the Court upheld a law that required the Jaycees, a private self-help and leadership training group, to begin admitting women, over the membership’s objections. More recently, Christian Legal Society v Martinez, (in which Cato also filed a brief), the Court ruled that a Christian student group couldn’t restrict candidacy for leadership and ministerial positions to students who shared the group’s faith. (Accordingly, Democrats apparently have to admit Republicans, PETA has to admit meat-lovers, and so forth.) In these cases, the Supreme Court, like the New Mexico court, held that the government’s interest in equality and “non-discrimination” allows it to run roughshod over individual liberties.

While the last few terms at the Court have included numerous important victories for freedom – and we may be living what I like to call the Court’s “libertarian moment” – the Court’s protection of individual liberty is patchy. The rights of criminal suspects, the religious, property owners, businesses, and many others, are all occasionally sacrificed in the name of “progress”.

Does Freedom of Speech Conflict with Freedom of Religion?

This is a provocative question, of course, or at least it is seemingly everywhere in the world but the United States. In just the last three years, the Supreme Court has protected highly offensive funeral protests, violent video games, animal “crush” videos, and a host of other types of expression. No law punishing blasphemy or “defamation of religion”—as approved by various UN resolutions and making inroads into the legal codes of even Western countries—could possibly survive First Amendment scrutiny. But that’s not the case elsewhere in the world, as an excellent new video by Danish human rights lawyer Jacob Mchangama shows (courtesy of Free to Choose TV; see press release):

America isn’t immune from increasing demands that free speech be limited to respect religious feelings. Recall the condemnations of the anti-Islamic video that may have caused rioting in Cairo on September 11 of last year (but not in Beghazi, as details of that scandal develop). The outcome of this battle will have profound consequences for the ability of people everywhere to freely express themselves and follow their beliefs. Democratic governments play a dangerous game when appeasing religious sensitivities rather than defending free speech.

Mchangama, not coincidentally, is affiliated with the invaluable Human Rights Foundation—an organization that deals with actual human rights violations rather than simply being a vehicle for pushing a transnational leftist agenda—whose president, Thor Halvorssen (with whom I’ve been acquainted since college), calls himself a “classical liberal” rather than a man of the Right or Left.

Students Have Free Speech and Due Process Rights Too

This past Friday, a federal jury in Atlanta sent a powerful message to university administrators across the nation: you cannot violate students’ free speech and due process rights with impunity. The jury found Valdosta State University president Ronald Zaccari personally liable for $50,000 in damages for expelling former VSU student Hayden Barnes, who peacefully protested a planned $30-million campus parking garage. The trial and award followed a ruling last year by the U.S. Court of Appeals for the Eleventh Circuit that Zaccarri could not claim the immunity given to public officials acting in their official capacities because he should have known that Barnes was entitled to notice and a hearing before being expelled.

Barnes’s saga began in 2007, when Zaccarri announced, and Barnes protested, the proposed garage construction.  Barnes’s activities included sending emails to student and faculty governing bodies, writing letters to the editor of the VSU student newspaper, and composing a satirical collage on Facebook. In retaliation for these acts, Zaccari ordered that Barnes be “administratively withdrawn” from VSU, without any hearing before his expulsion in May 2007.

Barnes sued Zaccarri in 2010, and the federal district court quickly ruled that that Zaccarri had violated Barnes’ constitutional right to due process and that the administrator could not avail himself of qualified immunity because he had ignored “clearly established” law. When Zaccarri appealed to the Eleventh Circuit, Cato joined an amicus brief filed on behalf of 15 organizations, successfully asking the court to affirm on both First Amendment and due process grounds.

As stated in the brief, the “desire of some administrators to censor unwanted, unpopular, or merely inconvenient speech on campus is matched by a willingness to seize upon developments in the law that grant them greater leeway to do so.” The immense importance of constitutional rights on public university campus is due in no small part to the reluctance of school administrators to abide by clearly established law protecting student rights. 

Qualified immunity is intended to protect public officials who sincerely believe their actions are reasonable and constitutional, not those who willfully and maliciously ignore well known law in a determined effort to deprive another of constitutional rights.  In this case, Zaccarri even rejected the advice of in-house counsel concerning the process required before Barnes could be deprived of his enrollment at VSU and neglected to abide by the procedures set forth in the VSU Student Handbook.

This verdict is cause for celebration for those concerned with individual rights.  It will encourage students to exercise and defend their freedom of speech and due process, serving as a warning to administrators that they may not willfully disregard those rights. Perhaps most importantly, it vindicates Hayden Barnes, who has endured a grueling three years of litigation in order to earn, in his own words, “a victory for students everywhere.”

Thanks to the Foundation for Individual Rights in Education for orchestrating this case, including finding longtime Cato ally Robert Corn-Revere to be Barnes’s counsel and asking Cato to join its amicus brief.  Read FIRE’s press release on Barnes v. Zaccari.

Creating a Human Freedom Index

Until now, no global index measuring human freedom consistent with a classical liberal approach has existed. Today, as part of the Human Freedom project sponsored by Cato, the Fraser Institute, and the Liberales Institut, we are releasing the first such attempt (.pdf) devised by my colleague Tanja Stumberger and by me. The index is a chapter in Towards a Worldwide Index of Human Freedom (.pdf) (published by Fraser and Liberales).

Using indicators consistent with the concept of negative liberty—the absence of coercive constraint—we have tried to capture the degree to which people are free to enjoy classic liberties in each country: freedom of speech, religion, individual economic choice, and association and assembly. The freedom index is composed of 76 distinct variables including measures of safety and security, freedom of movement, and relationship freedoms such as assembly or legal discrimination against gays.

In this preliminary index New Zealand ranks as the most free country in the world, followed by the Netherlands and then Hong Kong. Australia, Canada, and Ireland follow, with the United States ranking in 7th place.

As we mention in our essay, “The purpose for engaging in this exercise is to more carefully explore what we mean by freedom, and to better understand its relationship to any number of social and economic phenomena. Just as important, this research could improve our appreciation of the way in which various freedoms relate to one another.”

The index thus allows us to look at which freedoms are most under threat in which parts of the world, the relationship between economic freedom and personal freedom at different stages of development, and the relationship between human freedom and democracy, to name a few examples.

We have benefited from the input of numerous scholars around the world who have participated in several seminars as part of this project, many of whom have also contributed chapters to the book published today. Fred McMahon provides a nice survey (.pdf) of the literature on defining freedom that serves as a good introduction to the topic. Our index is being updated and revised along the lines of recommendations we have received since this version was drafted. We also thank Bob Lawson and Josh Hall for providing critiques (published in the book) on the index, the bulk of which we agree with. Further recommendations and criticisms are also most welcome as we continue to refine this work in progress.

French President Demands and Gets Firing of Opposition Editor

According to the New York Times, French Socialist president François Hollande demanded and received the dismissal of the editor of Le Figaro, the country’s leading conservative newspaper. If that sounds impossibly high-handed, consider the background, as reported in the Times:

The publisher, Serge Dassault, is a senator from [ousted President Nicolas] Sarkozy’s political party [and thus opposed to Hollande]. But Mr. Dassault also heads a major military contractor, and there was widespread speculation that [Figaro editor Étienne] Mougeotte’s ouster was meant to put the Dassault group in good stead with the new president.

For an American reader, it would be natural to turn the page with a murmur of thanks that such things don’t go on in our country. Don’t be so sure:

[Since-convicted Illinois Gov. Rod] Blagojevich, Harris and others are also alleged [in the federal indictment] to have withheld state assistance to the Tribune Company in connection with the sale of Wrigley Field. The statement says this was done to induce the firing of Chicago Tribune editorial board members who were critical of Blagojevich.

And in 1987, at the secret behest of the late Sen. Edward Kennedy (D-MA), Sen. Ernest Hollings (D-SC) inserted a legislative rider aimed at preventing Rupert Murdoch from simultaneously owning broadcast and newspaper properties in Boston and New York. The idea was to force him to sell the Boston Herald, the most persistent editorial voice criticizing Kennedy in his home state. Kennedy’s and Hollings’s actions drew criticism in places like the Harvard Crimson and from syndicated columnist R. Emmett Tyrrell, but no national furor developed.

One moral is that we cannot expect our First Amendment to do the whole job of protecting freedom of the press. Yes, it repels some kinds of incursions against press liberty, but it does not by its nature ward off the danger of entanglement between publishers and closely regulated industries, stadium operators, and others dependent on state sufferance. That’s one reason there’s such a difference in practice between a relatively free economy, where most lines of business do not require cultivating the good will of the state, and an economy deeply penetrated by government direction, in which nearly everyone is subject to (often implicit) pressure from the authorities. France has been unable to avoid the perils of the latter sort of economy. Can we?

We Support Gay Marriage but Oppose Forcing People to Support It

Elane Photography, a Christian-identified business in Albuquerque, N.M., declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal beliefs. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission.  She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law.

The commission found against Elane and ordered it to pay $6,600 in attorney fees.  Elane Photography’s owners appealed the ruling, arguing that they are being denied their First Amendment right to the free exercise of religion (and a similar provision in the state constitution).  Furthermore, New Mexico’s Religious Freedom Restoration Act defines “free exercise” as “an act or a refusal to act that is substantially motivated by religious belief” and forbids government from abridging that right except to “further a compelling government interest.”

The state trial and appellate courts affirmed the commission’s order.  Elane Photography v. Willock is now before the New Mexico Supreme Court, where Cato has joined UCLA law professor Eugene Volokh and University of Minnesota law professor Dale Carpenter—who, like Cato, support gay marriage—in filing an amicus brief siding with Elane Photography on free speech grounds.

Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing.  Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).

The U.S. Supreme Court has already ruled in Wooly v. Maynard that photography is protected speech—even if it’s not political and even if the photos are used for commercial value—and that speech compulsions (forcing people to speak) are just as unconstitutional as speech restrictions.  The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.”  Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

The New Mexico Supreme Court should thus reverse the lower court’s ruling and allow Elane Photography to be free to choose the work it desires.

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