Proof of Politics on the Court: the Establishment Clause (Part II)

Examining the history between government and religion during the Founding era is at best mixed. Many colonial states had government sponsored religions, presidents gave religious oaths at their inaugurations and for Thanksgiving Day, and Congress paid chaplains to deliver prayers to open sessions in both the House and Senate. However, two of our greatest Founding Fathers (Jefferson and Madison), although they participated in some of the ceremonies previously outlined as president, they had strong feelings about keeping “a wall between church and state” (Jefferson). Madison wrote about the constitutionality of chaplains administering prayers in Congress (House and Senate) “In strictness the answer on both points must be in the negative. The Constitution of the U.S. forbids everything like an establishment of a national religion.” Madison was also concerned about the prayer tradition because it is “paid out of national taxes” and he worries that chaplains represent the most popular religions and not minority ones. Madison also said religion and government will “both exist in greater purity, the less they are mixed.”

The decisions delivered by divided Courts over the Establishment Clause are not surprisingly mixed. In Lemon v. Kurtzman (1971) the Court held that both Pennsylvania and Rhode Island laws using taxpayer money to subsidize teacher pay and school supplies (books) in all schools (including private parochial schools) were unconstitutional. The Court held that although the government’s interest to improve education in their states was compelling, still the statutes did not pass the newly established Lemon Test to determine the constitutionality of Establishment Clause cases: “First, the Clause must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhabits religion; finally, the statute must not foster an excessive government entanglement with religion.” The statutes in Lemon failed the “entanglement” provision. In Marsh v. Chambers (1983), the Court held that the century long practice of opening the Nebraska legislature with a prayer by a chaplain was constitutional. Chief Justice Berger did not apply the “Lemon Test” he developed 12 years earlier. However, in Lee v. Weisman (1992) the Court held that a Rhode Island practice of having a chaplain deliver an invocation and benediction prayers (although generic in nature) were unconstitutional. This decision disregarded over a century of national tradition. The Liberal sect distinguished Lee from the Conservative decision in Marsh by saying Lee was coercive and mandatory and Marsh was not (this is not 100% factual). The majority also argues that just because government routinely conducts religious activities it does not make it legal. The Alien and Seditions Act (1798) passed by the Adam’s administration is a good example of a law that would not be ruled unconstitutional today. Justice Scalia in his dissent called this decision “the bulldozer of its social engineering” saying the Court invents a theory of “psychological coercion”. Scalia points out that people at the graduation had no issue participating in the “Pledge of Allegiance”. Scalia also points out the purpose of the Establishment Clause is to stop the coercive power of money between government and religion.

In McCreary County Kentucky v. ACLU of Kentucky (2005) the Court held that a display of the Ten Commandants among other historical documents was unconstitutional. Kentucky failed three times in the Court’s view to portray the Ten Commandants as not just religious, but as an important document in the development of government civil law. The majority held that the display’s intention to be religious was obvious in the first two displays and the third display could not overcome that obstacle. In other words, the third display, no matter how successfully the display showed the connection between civil law, it would never have been found constitutional based on previous intent. That same year, in Van Orden v. Perry (2005), the Court held a Ten Commandments monument outside the Texas Capital was constitutional. In his majority decision Chief Justice Rehnquist dismissed the Lemmon Test. Since the monument was among 20 other monuments displaying other aspects of government, even Justice Breyer joined the majority. Breyer said that it was apparent that the Ten Commandments in this setting is more than just religious in nature.

I brought up the Recess Appointment Case (NRLB v. Canning Noel, 2014) on purpose. In his concurring opinion, but dissenting on methodology, Justice Scalia quotes Marbury v. Madison saying it is the duty of the Court to “say what the law is.” He also quotes Zivotofsky v. Clinton (2012) by saying the role of the Court is not “lessoned” because “two political branches are adjusting their own powers between themselves.” Also Scalia quotes Free Enterprise v. Public Accounting Oversight (2010) about the separation of powers: “its vitality does not depend on whether the encroached-upon branch approves the encroachment.” In the majority opinion Justice Breyer provides a modern historical recital of Recess Appointments made by presidents. Since the FDR era president’s had been encroaching on Senate powers but as Scalia points out it is the duty of the Court to correct the balance of powers between branches of government. Why is this important? Even if history has shown an “entanglement” of traditions between the government and religion, does that make it constitutional? Just as it was the duty of the Court to determine the correct balance of the separation of powers in federal government (for recess appointments), it is the duty of the Court to determine the correct balance between separation of church and state for governments and religion (Establishment Clause). Is it fair for Scalia to take a historical interpretation for the Establishment Clause but a different textual approach for the Recess Appointment Clause (ignoring history), and the Liberal sect to do the opposite (although the liberal sect explores Jefferson’s and Madison’s views on the Establishment Clause)? In other words, the Court is highly inconsistent in its application of the Establishment Clause.

Proof of Politics on the Court: The Establishment Clause (Part I)

Liberal Justices will always try to find a way to expand the meaning of the Constitution. As the famous progressive Justice Oliver Wendell Holmes noted: “The Constitution is a living document.” In other words, the meaning of the Constitution changes with the times. Liberals employed many techniques over the years to expand the meaning of the Constitution such as “presumption” and “judicial restraint”. These two techniques allow liberal justices to uphold state or federal laws because laws were “presumed” constitutional unless it could be proven otherwise. The burden of proof was not on the government to show the laws they passed were constitutional, but on those opposing the laws. Justices also practiced “judicial restraint”: upholding government laws even if they thought they may be unconstitutional. For example, in Williamson v. Lee Optical (1955), the Court upheld an Oklahoma law that prohibited Lee Optical from practicing what Lens Crafters is doing today. In this case, the Warren Court held: “The law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” This is a very broad way to interpret government laws, considering the “evil” in this case performed by Lee Optical has become the present day business plan for Lens Crafters. Lee Optical is still valid law today.

Liberals have expanded the meaning of nearly every provision in the Constitution. The Necessary and Proper Clause was expanded immediately in our history (McCulloch v. Maryland, 1819) where the Court held a National Bank was constitutional. The Interstate Commerce Clause has gone from regulating trade between the states to controlling anything that is economic (interstate or intrastate) with Wickard v. Filburn (1941) being the absolute edge of federal government regulation. The Court has even used the Commerce Clause to uphold the 1964 Civil Rights Act in Katzenbach v. McClung (1964) and Heart of Atlanta Hotel v. United States (1964).

Consider a couple of examples: The Recess Appointment Clause and Qualifications Clause. In NLRB v. Canning Noel (2014), The Court held recess appointments made by President Obama were unconstitutional. However, in doing so, the entire Recess Appointment Clause was rewritten to construct a more modern interpretation. The new definition of the Recess Appointment Clause provides any President to make recess appointments during any short 10 day adjournments of Congress as well as fill vacancies not opened during the current Congressional recess. By doing so, the Court yielded much more power to the Executive branch at the expense of the Senate and the American people by diluting the separation of powers between the branches of government. In United States Term Limits v. Thornton (1995) the Court held that an Arkansas referendum placing term limits on United States Representatives and Senators was unconstitutional. The Qualification Clauses provide age requirements, state residence, and citizenship requirements for Congressional candidates. This decision, however, made another requirement not found in the Constitution: that States cannot place any requirements on its federal representatives and senators such as term limits or reasonable things such as mental acuity or criminal record. This decision, once again, provided more power to the Federal government at the expense of the States and more importantly the people.

The Liberal sect of the Court has also elevated fundamental rights not found in the Constitution using a technique called Substantive Due Process: abortion (Roe v. Wade, 1973), sodomy (Lawrence v. Texas, 2003), and gay marriage (Obergefell v. Hodges, 2015). All of those fundamental rights were the result of the Courts ambiguous and broad fundamental right to privacy (Griswold v. Connecticut, 1965). True, conservatives did the same thing during the Lochner Era Court: freedom of contract (Lochner v. New York, 1905), various rights including marriage, occupation, acquire knowledge, and raising children (Meyer v. Nebraska, 1923), and the freedom to make decisions in the upbringing of children (Pierce v. Society Sisters, 1925). I will not defend any of these elevated rights, but it is much easier to defend the conservative rights than the liberal rights.

The First Amendment’s religious Establishment Clause is very much different than everything we discussed earlier in this article because it is role reversal. It is the Liberal sect of the Court providing a narrow reading of the Clause whereas the Conservative sect of the Court wants a broader reading of the Clause. This flip flop over positions demonstrates that the Court is highly political and justices are not always neutral. The Establishment Clause states “Congress shall make no law respecting an establishment of religion.”

Is Bullying Protected Speech? (Part II)

Other speech, such as speech made by groups of people is also protected such as in Snyder v. Phelps. Many times bullying is done by a group of people committing the act, not just one person. In cases involving group speech, the government does not have much influence unless once again there may be a “compelling government interest” to do so. In Roberts v. United States Jaycees (1984), the Court held that a club designated for males between the ages of 18 and 35 discriminated based on gender. This was a really bad decision because Americans have the right to peacefully assemble and the government cannot tell Americans who they can and cannot associate with (Gilmore v Montgomery). For instance, it is not a crime for the Ku Klux Klan to peacefully assemble. The Ku Klux Klan also discriminates in their membership and their beliefs, as hurtful and hateful as they may be, are not against the law. Roberts was mostly nullified by Boy Scouts of America v. Dale (2012) where the Court held that the Boy Scouts did not have to admit homosexuals as scoutmasters. Public establishments such as restaurants, hotels, movie theaters, etc. cannot discriminate in any fashion. It is important to remember that not all discrimination is bad, it may occur in much more accepted or subtler terms. Discrimination is wrongly viewed as a bad word. Here are some examples: Companies discriminate based on an applicant’s ability; basketball teams discriminate against short people; men pay higher auto insurance premiums because they are more dangerous drivers; dating or marriage may be considered discriminatory based on our preferences for a partner; restaurants and adult clubs may discriminate on weight and appearance; restaurants hire qualified chefs and companies may rely on experience; many colleges discriminate based on gender and it is seen as an opportunity that many young adults prefer; and therefore all discriminatory ideas, thoughts, and beliefs are protected by the First Amendment

There is one very interesting case: Brown v. Entertainment Merchants Association (2010). In this case, the Court held that a California law prohibiting minors from purchasing “violent” video games without the consent of a parent or guardian was unconstitutional because it violated the First Amendment rights of children. What was important in this case was Justice Thomas’s dissent. Thomas claims that children or minors do not have the same protected speech rights guaranteed in the First Amendment as adults. Thomas illustrates his point through the history of this nation which shows that children are to respect their elders and to do as they are told. A child’s speech may be limited to what their parents want their speech to be (speech and conduct). Even the government has placed vital free speech limitations on children. For example, the government has placed a minimum age requirement for voting, enlisting in the military, marrying, curfew laws, drinking age, to purchase provocative materials (Ginsberg v. New York, 1968), and children cannot consent to medical procedures to name a few. But in Erznoznik v. Jacksonville (1975) the Court held “Minors are entitled to a significant measure of First Amendment protection, and only in a relatively narrow well-defined circumstances may the government bar public dissemination of protected materials to them.” Erznoznik lifted restrictions “designed to protect minors at drive-in movies”.

So what does all this mean when it comes to bullying? It means, for the most part, the government usually sides with free speech. The government has the burden of proof to show a compelling state interest in limiting free speech of individuals or of groups of bullies. For instance, the government may want to stop attempted or successful suicides of minors that may be driven by bullies. For this to be compelling a vast majority of minor suicides must be the result of bullying. Unless obscenity (pornography) is used as a bullying mechanism, it is hard to prove intent of other types of speech limitation doctrines such as “fighting words” or to “incite violence”. If Flag burning, cross burning, or hateful protests outside a military funeral do not constitute “fighting words” or are not intended to “incite violence” the government has a high bar to prove a bully’s words fit into these categories. Bullies can use hateful and discriminatory words and they can lie and all of that is protected speech. But what if it was decided that minors or children had less protected free speech than adults, then it may be easier for the government to place regulations on children for bully speech. Brown was a close 5-4 decision with conservatives and liberals on both sides of the outcome. If Thomas’s theory of child speech would come to fruition then bullying could be regulated for minors without the need to prove a compelling state interest (but Thomas’s views are not the law because they violate Erznozdik and Brown). In Brown, California was unable to prove a “direct causal link between violent video games and harm to minors.” There was no proof video games made kids more “aggressive” and that would be hard to prove since studies indicated that minors watch as much violent TV as they did playing violent video games. The majority opinion also held the California law was discriminatory since it failed to hold booksellers, cartoonists, and movie producers to the same standard as video game producers. Brown gives you an idea of how difficult it is to write a law that would make bullying unconstitutional because of some compelling government interest.

Is Bullying Protected Speech? (Part I)

I thought if I studied the law (on my own), I may find answers to the many of the complicated questions that we face in society. However, the law is very complicated and convoluted and it is really hard to answer these questions. In the following evaluation, I only consider bullying that is speech and not physical contact which would undoubtedly be a crime (assault). Let’s evaluate some relevant precedent by the Court when it comes to the First Amendment and free speech.

We know that people have the right to bigoted and hateful speech (words, actions, and conduct), much like flag burning (Johnson v. Texas, 1989) and cross burning (R.A.V. v. St. Paul). In Snyder v. Phelps (2010), the Court held that religious protests at the funerals of soldiers was constitutional if the protests were held outside a buffer zone. I will not publish what the protestor’s signs said, but they were extremely hurtful and hateful. The Court held that although the signs were provocative, the protest was orderly and peaceful. In the United States v. Stevens (2010), the Court held that owning violent films showing animals being crushed to death was protected speech, but the act of creating those films is probably not be protected (violated animal cruelty laws). The federal government is not completely powerless to regulate speech. In O’Brien v. United States (1968) the Court held that the burning of military draft cards was not protected speech because the government had a “compelling” reason for prohibiting the behavior: Since the government has broad powers over the formation of armies, this was compelling enough for the Court to side with them. There are only a few cases of the government mandating speech, but most of this deals with freedom of the press and political speech. In Red Lion Broadcasting Company v. Federal Communications Commission (1969) the Court held the Fairness Doctrine was constitutional. In this case, the government could mandate broadcasters to tell both sides of political issues. But just five years later in Miami Herald v. Tornillo (1974) the Court held a Florida statute forcing newspapers to print opposing political views was unconstitutional. In my view, Tornillo all but overrules the Red Lion case (although it did not officially do so). So government mandated regulation over political speech is not allowed (see also Citizens United).

Bullying of public personalities (New York Times v. Sullivan, 1964) may be viewed differently than private personalities (Gertz v. Robert Welch, 1974). Private citizens are protected more by defamation claims that public citizens who more readily have resources to fight allegations. Lying is also protected speech that the government cannot regulate unless they have a “compelling interest” to do so (United State v. Alvarez, 2012). In many cases, it comes down to how the law is written and if the action of abridging free speech is needed for some “compelling government interest”.

Some speech is not protected such as obscenity (Roth v. United States, 1957) unless the obscenity is in the privacy of your own home (Stanley v. Georgia, 1969). In Miller v. California the Court put some guidelines on obscenity that may make it permissible such as if the obscenity has a “literary, artistic, political, medical, or scientific value.” Some speech may not be protected if it “incites violence” (Brandenburg v. Ohio, 1969) or are “fighting words” (Chaplinski v. New Hampshire, 1942). But as the above cases show doctrines abridging free speech are hard to prove because it must be shown someone is intentionally trying to incite violence or pick a fight.

The Difference between Union and Corporation Political Speech

Union and corporate First Amendment rights towards political spending (speech) are treated very differently, but there are reasons for those decisions. The Supreme Court has held that unions can charge non-members dues to help cover “collective bargaining costs”. The reason for this is to prevent “free riders” who get the collective bargaining advantages at no cost. However the Court has also held that unions cannot charge non-members dues that will be used to support political speech since non-members may have different political views. That being said, corporate stockholders do not receive the same type of protections as union nonmembers. Corporations are free to invest in political speech anyway the board of trustees sees fit regardless of how stockholders may feel about their choice of political speech. It is important to point out that there are many reasons why the Court has made decisions that seem more favorable to corporations.

Citizens United, decided in 2010, provides that both Unions and Corporations are allowed unlimited donations to political campaigns and referendum initiatives. However, the line of cases Aboad v. Detroit Board of Education (1977), Keller v. State Bar of California (1990), and Knox v. SEIU (2012) set the precedent explained in the first paragraph restricting non-union member’s fees. In Board of Regents University of Wisconsin v. Southworth (2000), the Court held that mandatory member fees can be collected if the political speech is “viewpoint neutral”. Unfortunately, Union speech is not “viewpoint neutral”, but corporate speech is much more “viewpoint neutral” than union speech: about 40% of United States business owners are Democrats. In the last presidential election Clinton received more than 75% of the corporate contributions. Unions back Democrats candidates 100% of the time.

So why is okay to have what the Left calls an “un-level playing field” between Unions and Corporations other than “viewpoint neutral” speech. First, according to one article there is a distinction between government and private employees: “The First Amendment is a limit on government power, and it does not directly affect private agreements, whether between companies and shareholders or between private employers and their workers.”

Secondly, there is a big difference between a union member worker and a shareholder. Specifically, the shareholder can choose and buy and sell any stock or mutual fund it likes. A worker is much more restricted because leaving and starting new jobs is not quite as easy as pushing enter on a computer screen. Union fees are compulsory whereas stock purchasing is a private and personal decision.

Third, a corporation does not charge stockholders fees, but instead works to make the investor money through capital gains and dividends. A union can also help make money for employees in the same way a company can (pensions, 401K, raises), but they charge their members fees and they cannot earn capital gains or dividends. Unions spend as much as 50% of its dues on political speech, no corporation will spend anywhere near that much on political speech. If a corporation spends 1% on its profits on political speech that would be extremely high.

Finally, shareholders do have a say in the political choices made by a company through the voting proxy system. The same option is not available to union members or nonunion members. In fact, collective bargaining decisions made on behalf of the government worker is done so by a “monopolized” viewpoint. Union members and nonmembers have very little say over any direction of their employer’s decisions; they are completely silenced. Nonunion members should be able to advocate for their own pay and benefits. Government employees are not paid based on how well they perform (merit based system), instead they are paid the same as workers who are underachievers. In my view, Unions should feel lucky they are allowed to collect any dues from nonmembers. There is a distinct difference between a company making money in the private sector for use as political speech and a union making money by stealing from people who do not want to pay the fee for political speech. Unions and corporations are completely different entities with completely different business plans and philosophies. To think laws should be applied “symmetrically” between two vastly different types of groups, companies, and organizations is just being naïve.

Rehnquist Made Many Questionable Rulings

Chief Justice Rehnquist made more good decisions than bad ones, but some of the bad ones can leave a person scratching their head wondering what he was thinking. Rehnquist may have been only one of two Justices on the right side of the Roe v. Wade decision in 1973, but his dissent, in my opinion, was extremely lacking in substance and vigor. In South Dakota v. Dole (1987), Rehnquist gave the majority decision that allowed the federal government to use coercive tactics when using its spending power. In this decision the Court held that Congress had the authority to withhold federal transportation funding from the state of South Dakota unless they raised their drinking age to 21. South Dakota allows young adults (18-20) to only drink near bear (3.2% alcohol by content). In her dissent, Justice O’Connor schooled Rehnquist that coercive or as the Left call it “encouragement” spending powers apply if the money being withheld is related to the subject of the funding: Federal highway safety. There was no evidence South Dakota highways would be safer by increasing the drinking age and thus O’Connor theorized that establishing a drinking age and highway safety were unrelated. One example where Rehnquist really misses the target is over “commercial speech”. Commercial speech involves things like corporate advertising. Rehnquist wrongly asserts that commercial speech is not subject to the same First Amendment protections as noncommercial speech – such as political speech. And he feels this way even if the commercial speech is truthful and informative.

In Virginia Pharmacy Board v. Virginia Consumer Council (1976), the Court held a statute prohibiting pharmacies from “truthfully” advertising the cost of its products was unconstitutional. Rehnquist wrote the dissenting opinion: “I do not believe that the First Amendment mandates the Court’s ‘open door policy’ toward such commercial advertising. Rehnquist writes that “prescription drugs, liquor, cigarettes, and other products the use of which it has previously been though desirable to discourage.” There may have been some restrictions placed on some products in terms of advertising, but advertising was never banned in any sense such as Rehnquist hints. This is a totally anti-capitalistic way of thinking on his part and is by no means even accepted First Amendment theory by the “liberal” sect of the court.

In Central Hudson Gas and Electric v. Public Service Commission (1980), Rehnquist elaborates much deeper into his flawed thinking. In this case, the Court held a New York law prohibiting the advertisement of energy as unconstitutional. Of course, energy is not at all any of the “evil” products pointed out in the Virginia Pharmacy Board ruling. Yet, Rehnquist still dissents claiming the Court is moving back to the “bygone era of Lochner v. New York (1905) in which it was common practice for this Court to strike down economic regulations. However, as Rehnquist notes, the FDR Court era changed all this and “it had become well established that a State has broad discretion in imposing economic regulations.” Rehnquist summarizes by saying “in a democracy, the economic is subordinate to the political.” Rehnquist’s summary of Lochner and FDR era economic laws is true. But those cases dealt specifically with the Commerce Clause not the First Amendment. More importantly in Gibbons v. Ogden (1824) which was the first major Commerce Clause case, Chief Justice Marshall writes about the power of interstate commerce “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the Constitution.” I read this as meaning the Commerce Clause can be preempted if it violates some other clause or right in the Constitution. A Commerce Clause law that abridges any right outlined in the Bill of Rights will be struck down as unconstitutional. That makes sense, so in Central Hudson Gas and Virginia Pharmacy the Commerce Clause does not matter since these cases are about the First Amendment. I do not believe Rehnquist was using the correct logic or theory to apply the law in these two cases which led him to make the wrong decision. Today’s conservative Justices would not agree with Rehnquist’s philosophy about commercial speech, FDR economic use of the Commerce Clause (especially Wickard v. Filburn, although it seems accepted except for Justice Thomas), or the right of Congress to use the Spending Clause in a coercive manner (although Trump is going to do this to try to end Sanctuary Cities – interesting to see what happens if that goes to the Supreme Court).

Why Torture the Body with Unnecessary Pain

My wife asks me questions like “why do I put myself through so much pain and agony with cycling?” or “why do I have to compete in cycling?”. She is right, I do not have to compete or put myself through so much pain in races or training. After all, I have a perfect excuse to avoid pain since I am already in pain with a neurological disorder. Thus, it defies logic and commonsense to enhance my pain levels. However, I have explained some of my reasons in the previous posts: For instance, having the good pain from training helps mask some of the bad pain from the neurological disorder. That is one important reason for my dose of daily torture on a bike. But there are other reasons as well.

Just eight to ten years ago I was being tested for sinister disorders such as ALS and MS. Everything came back negative, but I had the tests redone a few years later to double check the results since I was still convinced I had something majorly wrong with my body. These results also came back negative. Although, I was diagnosed with Cramp Fasciculation Syndrome (CFS), it could have been worse so I find myself as being very lucky. If I had ALS, I would currently be dead and not writing this blog post. CFS is no joy, but it is better than the alternatives. So, in my view, I was granted a second chance at life since I was convinced that I was dying just a few short years ago. When you get a second chance at life you not only realize that life is short and precious, but you also understand that you are mortal and life can end at any moment without notice. Most of us take life for granted, I know I was in that group. You need to make the most of life regardless of the adversity or the situations you may face. Furthermore, I was told that exercise intolerance was a sub-symptom from all the primary symptoms of my CFS disorder. My life was going to change for the worse because I would no longer be able to exercise with intensity or do many of the activities I love anymore. The doctors were partially right. I found certain types of exercise and activities no longer possible because of both extreme pain levels and safety concerns over paresthesia symptoms in my hands and feet (such as rock climbing). However, for some unexplained reason, I can cycle. Sure, it can be painful (proportional to the intensity of the workout), but it has been manageable. All that being said, each day it is becoming more difficult to ride (slightly, but more difficult none the less). The strange thing is that although my pain levels are going up after riding, I continue to improve. No one can explain this phenomenon.

Therefore, I try to explain to my wife what if she thought she would eventually lose the ability to cycle, wouldn’t she try to make the most out of what time she had with the activity? If she was given a second chance at life wouldn’t she try to make the most of it and pursue goals that have eluded her during her lifetime? If she was good at cycling and getting better even though she is in her 50s with neuro disorder, wouldn’t she want to know how good she can be, especially understanding it could be taken away without a moment’s notice? You have one chance at life, would she regret not making the most of an opportunity? Wouldn’t it be a crime not to use my legs (although in pain) when so many others are suffering around the world and they literally cannot use their legs? Sometimes we fail to realize how fortunate we are in this country and how lucky most of us are to have the freedom to do almost anything that we want. But when you lose many of those freedoms wouldn’t you want to make the most out of what freedoms you still have? Unfortunately, we never realize how much we miss something until it is too late and it is gone. And although I have evolved, I surely miss the activities I can no longer partake in, but I will not have any regrets when and if cycling is taken away from me. I am riding with passion and conviction every day. I am giving it my all. I will miss cycling if it taken away from me, but I know I put every ounce of effort behind the sport on daily basis, so I will have no regrets.

Is Fake News Constitutional?

Is fake news constitutional? I believe the answer to this question depends on what the fake is news about to determine if it is protected by the First Amendment. If a fake news article slanders or defames another person, it is Constitutional to do so if the person being defamed is a public figure (well known – politician, sport star, Hollywood star etc.). This precedent was decided in New York Times v. Sullivan in 1964. On the other hand, if the person being defamed is a private citizen, this speech is not protected by the First Amendment. This precedent was decided in Gertz v. Robert Welch (1974). In Getz, the Court held there was a distinction between public and private persons: “Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.” At the same time, the Court in Gertz held “all” false statements are problematic under the First Amendment: “But there is no constitutional value in false statements of fact.” Also “Under the First Amendment there is no such thing as a false idea.” But the Gertz majority opinion will then go on later to proclaim: “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” In the United States v. Alvarez (2012), the Court held that lying about receiving Military awards / medals is protected by the First Amendment. In 1952, Beauharnais v. Illinois the Court upheld a statute making it illegal to portray in any matter: “depravity, criminally, unchastely, or lack of virtue of a class of citizens of any race, color, or creed of religion”.

Then there is the question of fraud, if someone knowingly commits an act of fraud – this is not protected by the First Amendment. In Virginia Pharmacy Board v. Virginia Consumer Council (1976) the Court held “commercial speech” was protected similarly to “non-commercial speech” such as political speech. Commercial speech includes things such as corporate advertisements of any kind. However, commercial speech is not unlimited: “Untruthful speech, commercial or otherwise, has never been protected for its own sake. Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive and misleading.” So it may be hard to prove if someone writing fake news was intentionally writing false statements and committing fraud or just being “deceptive or misleading”. In Central Hudson Gas and Electric Corporation v. Public Service Commission (1980), the Court placed a four points in determining whether government legislation was constitutional regarding “commercial speech”: 1. “It must concern lawful activity and not be misleading”; 2. The government interest for the law must be “substantial”; 3. The legislation or regulation must “directly advance the government interest asserted”; and 4. The regulation cannot be “more extensive than is necessary to serve that government interest.” As Justice Thomas says in Lorillard Tobacco v. Reilly (2001) there is no “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” If that is true, then both forms of speech can be held to “strict scrutiny”. Under strict scrutiny unless there is a compelling government interest, the speech is constitutional.

Since speech protected by the First Amendment varies depending upon the circumstance (non-commercial, commercial, public figures, or private figures), each case of fake news would have to be determined on a case by case basis. It seems fake news is expanding daily and covers a vast number of topics so the issue is not as simple as if fake news is constitutional. My guess is that a vast majority of fake news articles will be found constitutional while it is possible that a few may be found unconstitutional.

Illegal in Public, but Legal in Private

Is there anything that is illegal in public but legal in the privacy of our own homes? For the most part no. Although there is a fundamental right to privacy elevated by the Supreme Court in Griswold v. Connecticut in 1965, this is misleading. The Court makes it sound as if everything do in private is okay, but that is not true. Drug usage is mostly done in private, but that does not make it protected. Growing or manufacturing drugs in the privacy of our homes is not legal. Manufacturing alcohol is prohibited in public or in private. Sex with prostitutes is done in private, but that does not make it legal (other than Nevada). Defaming private citizens in private is not legal. Storing stolen goods on private property is not legal. Sure, these things are not legal, but people may get away with many crimes because they do them in private.

There is one issue that may be illegal in public but legal in private: obscenity. Sex in public is not legal, it would be considered lewd or obscene. But sex in the privacy of our homes is legal, including such things as sodomy (Bowers v. Hardwick, 1986 and Lawrence v. Texas, 2003). Obscenity is one of the few subjects that is not protected by the First Amendment (Roth v. United States, 1957) other than the following exceptions settled in Miller v. California (1973): 1. The material “appeals to the prurient interest”; 2. Material or conduct is allowed by state laws; and 3. The material has some “literary, artistic, political, or scientific value.” The Court does not deal with obscenity the same way that it does with other First Amendment cases such as things depicting violence: video games (Brown v. Entertainment Merchants – 2011) and animal cruelty videos (United States v. Stevens, 2010). Hate speech is also tolerated such as the burning of the American Flag (Johnson v. Texas, 1989) and burning a cross on a neighbor’s yard (R.A.V. v. St Paul, 1992). Other than obscenity, the following issues have not gotten First Amendment protection: defamation (Beauharnais v. Illinois, 1952), Fraud (Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 1975), Incitement (Brandenburg v. Ohio, 1969), Child Pornography (Ferber v. New York, 1982) and speech that integral to criminal conduct (Giboney v. Empire Storage and Ice, 1949). Remember, just because a video of someone crushing a dog to death with their feet is protected, this does not mean the act is not a crime.

One case stood out when dealing with obscenity and First Amendment protections: Stanley v. Georgia (1969). In this case, obscene videos were confiscated from the home of the defendant and he was convicted under Georgia law. Although Roth v. United States said obscenity is not protected by the First Amendment, Justice Thurgood Marshall, who wrote the majority opinion, found a variety reasons to not apply Roth to this case: Roth did not involve “prosecution for private possession of obscene material”. That is true, Roth involved the public dissemination of obscene material. Furthermore, Marshall, pointed out other precedent: the right to receive information and ideas (Griswold v. Connecticut, 1965 – I am not sure why Marshall did not say the “right to privacy” for this case). Marshall contends “For also fundamental is the right to be free, except in very limited circumstance, from unwanted government intrusion into one’s privacy.” Marshall continues “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Marshall's best reason (although weak) for allowing something prohibited in public but legal in private is “the State may no more prohibit mere possession of obscene matter on the ground it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground they may lead to the manufacture of homemade spirits.” Also, since Marshall believes there is no danger “in this case” for the material to get into the hands of children he decides to strike down the law.

Marshall has many flaws in his rationale. First, it sounds as if the obscenity in this case would break the law if it were used in public. Second, although the threat of the material to get into the wrong hands in this case is not an issue, but that does not mean it could not happen in another obscenity - privacy case. Third, Marshall’s example of the chemistry book fails to mention that those homemade spirits made in private would be illegal, but anti-social behavior is not illegal. Fourth, Marshall says intrusion into a person’s privacy is “limited”. That limitation occurs when a person breaks the law as in this instance. Fifth, Marshall talks about our fundamental right to learn, but what does that matter if the material is illegal in public. Besides, one reason obscenity is not protected by the First Amendment is because it offers no social, educational, or moral value. Sixth, Roth is still the law of the land, it was not overruled. Finally, Marshall’s contention that the government doesn’t have the power to control what we read or to control our minds. The government does this all the time such as Nanny State laws, editing history books, restricted book lists high school students can read, indoctrinated teachers, the Fairness Doctrine, and so forth and so on. So, obscenity in private, is the only instance I have seen where someone violated a statute that was illegal in public but the Court ruled it was legal in private.