Is there a Blue Wave? 10/29/18

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +4.1 (% of Democrats - % of Republicans)

Female = +8 (% of Females - % of Males)

White = +41.1 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +4.2 R

Florida +3.5 R

Colorado +0.4 D

Georgia +0.2 W, +4.8 M

North Carolina +2.9 D, +5.2 W, +4.7 M

Nevada +2.9 R

West Virginia +5.6 R

For example, North Carolina means there is 2.9% more Democrat turnout, 5.2% more white turnout, and 4.7% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: So far things good for Republicans they are up 3.4% in turnout, 2% in White turnout, and 6.1% in Male turnout. However, these numbers have been trending back towards the Democrats this week.

Is there a Blue Wave? (10/26/18)

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +2.8 (% of Democrats - % of Republicans)

Female = +7.6 (% of Females - % of Males)

White = +41.8 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +5 R

Florida +4.4 R

Colorado +0.3 R

Georgia +0.4 W, +5.4 M

North Carolina +3 D, +6 W, +4.9 M

Nevada +3 R

West Virginia +4.9 D

For example, North Carolina means there is 3% more Democrat turnout, 6% more white turnout, and 4.9% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: So far things good for Republicans they are up 4.7% in turnout, 2.7% in White turnout, and 6.5% in Male turnout. However, these numbers have been trending back towards the Democrats this week.

Is There a Blue Wave? (11/23/18)

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +2.4 (% of Democrats - % of Republicans)

Female = +7.5 (% of Females - % of Males)

White = +41.6 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +5.9 R

Florida +6.2 R

Colorado +0.7 R

Georgia +0.3 W, +6.6 M

North Carolina +4.6 d, +7 W, +6 M

Nevada +2.1 R

West Virginia +1.7 D

For example, North Carolina means there is 4.6 % more Democrat turnout, 7% more white turnout, and 6% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: So far things good for Republicans they are up 5% in turnout, 2% in White turnout, and 6.5% in Male turnout. However, these numbers have been trending back towards the Democrats this week.

Oliver Wendell Holmes was no Protector of Free Speech (Part III)

In fact, in Fiske v. Kansas, the Court overturned the conviction of Fiske for merely belonging to a socialist political party. Fiske did not pose any risk or threaten violence. Hence, Whitney would not have been convicted if she only belonged to the communist party, but instead she conspired to use violence to release of “political prisoners”. In Burns v. United States, the Court upheld the conviction of Burns. The case was similar to Whitney because it used the same California statute. It was a federal case because the offense occurred in Yosemite National Park. Like Whitney, there was proof that Burns taught and advocated the use of violence and sabotage against the local and state governments. Holmes joined the majority opinion in this case and Brandies was the lone dissenter. In all these cases (other than Fiske), the only person on the Court who held inconsistent views on free speech was Holmes. While a majority of the Justices upheld convictions and Brandies would dissent, Holmes would consistently change his mind even over similar cases.

In Milwaukee Leader v. United States, the Court held that the United States Post Office could deny or charge an inflated rate for newspaper delivery if the substance in the newspaper violated the Espionage Act. Holmes’s dissent is puzzling because it conflicts and contradicts his earlier ruling in McAuliffe. One would conclude if a “police officer who talked politics could be excluded from public employment.” then it would follow a “seditious newspapers could be excluded from the mail”. In United States v. Schwimmer, the Court held that Congress could deny citizenship to an immigrant who refused to take an oath to fight and defend the country. The Constitution is clear and only Congress has the power of naturalization. The Court really has no jurisdiction over this case. Once again, however, Holmes and Brandies dissented even though in a past decision Holmes said: “It is admitted that sovereign states have inherent power to deport aliens, and seemingly that Congress is not deprived of this power in the Constitution of the United States.” Both Milwaukee Leader and Schwimmer violate the views that Holmes expressed in Davis where he said the government could prohibit any public speech. Why have Holmes’s views changed? Why was he contradicting earlier decisions and doctrines? Although he did not side with Brandies on all cases he did on most. I believe Holmes was influenced by Brandies and became his puppet on the Court, especially over free speech cases. Of course, Holmes believes the meaning of the Constitution changes over time. Holmes said, “we do not realize how large a part of our law is open to reconsideration up a slight change in the habit of the public mind.” Furthermore, according to Holmes judges have a “duty of weighing considerations of social advantage.” Moreover, Holmes wrote “The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.” Therefore, Holmes’s point of view on free speech may be merely evolving based on public opinion or because of certain economic conditions. This is ridiculous, but Holmes was a ridiculously poor Justice. In fact, modern interpretation of the First Amendment much more closely resembles the founders’ intent, it does not resemble the conjured-up scheme of doctrines and philosophies of Holmes’s imagination that failed to provide adequate free speech protection. I would argue that the words of the Constitution are just as precise as any mathematical formula and any alteration from that formula is merely activism that supplants the Constitution with a Justices prejudices and philosophies as law of the land.

Freedom of speech and press would have minimal value if Holmes’s doctrines were practiced by modern courts. Speech would be restricted more than it would be free. Even in cases where Holmes sided in favor of free speech, the majority used his doctrines to side against free speech. And on many cases where Holmes dissented in favor of free speech he would join the words and doctrines written by Brandies (Holmes was silent). Brandies was much more consistent and committed to free speech and his doctrines live on today (especially his Whitney dissent). Holmes was not committed to free speech and his interpretations where hard to understand because he was very inconsistent in his rulings. Holmes’s free speech doctrines (clear and present danger) died out over 50 years ago. Holmes’s deference to state legislation was indeed more important to his doctrine of judicial restraint than protecting any natural rights including free speech of individual citizens. Some may argue that Holmes’s free-speech doctrine was way ahead of its time in protecting free speech. This too is not true. Many judges and legal scholars had doctrines which protected speech far more than Holmes (other than Louis Brandies): Learned Hand, Zechariah Chafee Jr., and Ernst Fruend to name a few that Holmes corresponded with over the issue of free speech. Fruend’s view on free speech is more of our modern interpretation: “No matter what the speaker’s intent was, speech alone was not sufficient basis for an attempt. An actual harm had to result.”

Oliver Wendell Holmes was no Protector of Free Speech (Part II)

In Fox v. Washington Holmes found that a book written by Fox (“The Nude and the Prude”) was harmful speech that violated the First Amendment because it incited citizens to break the law (indecent exposure). This precedent, if enforced, would find any modern book, movie, TV Show, or video game as harmful speech.

In Schenck v. United States Holmes found that Schenck violated the Espionage Act of 1917. In this case, since Schenck was found guilty of a conspiracy to obstruct enlistment in the armed services for WWI there was no need to find a proximity to harm, yet Holmes cites his “clear and present danger” doctrine in his decision which should have had no bearing on the case. Schenck proved that Holmes was not only wrong about free-speech, but he was confused and could not even follow his own doctrines. Frohwerk v. United States was a similar case because it too involved a conspiracy and that in and of itself forced the Court to uphold Frohwerk’s conviction. However, the cases were vastly different: Schenck was a high-ranking officer in his Socialist Party while Frohwerk was simply a poor working man carrying out the orders of his employers; Schenck targeted drafted Americans but Frohwerk did not attempt to reach Americans subject to the draft; evidence against Schenck involved both speech and a high volume of non-verbal speech (Pamphlets) but evidence against Frohwerk consisted of only a small circulation of non-verbal speech. Frohwerk was a pawn and took the fall for his bosses. Frohwerk had no harmful intent nor did he have any proximity to harm, but since it was a conspiracy case Holmes felt he had no choice but to uphold his doctrine and theory of legal liability. The Frohwerk decision was proof that the Supreme Court was providing the United States government increased war-time powers.

In Sugarman v. United States the Court held that it did not have jurisdiction over the case. However, according to Holmes’s theory of legal liability he would have concluded Sugarman was rightfully convicted for violating the Espionage Act. Anything that hindered the United States war effort against Germany was said to be a violation of the Espionage Act. Sugarman was arrested for giving a speech condemning the draft at a Socialism Party meeting in which draft eligible men were present. Similarly, in Debs v. United States, the case and outcome were very close to that of the Sugarman case. In Debs, Holmes declared a clear and present danger of intent to obstruct the war effort. Debs, like Sugarman, was a socialist who condemned the war effort in many of his public speeches. But I find it hard to believe that Debs and Sugarman (who both represented very unpopular political parties) could convince but a few young men to commit a crime and dodge the draft. The only “clear and present danger” were the thoughts going Holmes’s brain.

Holmes would change his views on free speech in Abrams v. United States and Gitlow v. New York. If Holmes had followed his previous theory of legal liability doctrine he would have upheld convictions in both cases. In his dissent Holmes found Abrams innocent of violating the Espionage Act. However, the majority used Holmes’s “clear and present danger” doctrine to uphold the conviction but for some reason Holmes went against his own doctrine. Even if the defense argument was factual that they did not want to hinder the war effort with Germany but merely wanted to enhance United States foreign policy with Russia, the group sought to incite labor strikes which would hinder the war effort. This case was probably more egregious than Schenck or Debs, but Holmes changed his views. There was truly a clear and present danger, maybe even more so than in Schenck or earlier cases decided by Holmes differently. In Gitlow, Holmes did not find advocacy of criminal anarchy was harmful (but any effort to affect the military draft was harmful). In fact, Holmes generally practiced “restraint” and almost always sided with police power (state legislation), but not in this case. Abrams and Gitlow are generally cited by liberals who revere Holmes and his defense of free speech. But Holmes’s “clear and present danger” doctrine upheld the convictions of both Abrams and Gitlow. The damage had been done, Holmes’s doctrines would be used for decades to restrict free-speech until it was abandoned by the Warren Court in the 1960s. But what changed in Abrams and Gitlow? Everything points to how Holmes should have decided these cases differently: Holmes had a contempt for natural rights, especially free speech and he saw no relationship between the law and morality (positivism); Holmes’s principle to conform to the powers of state government (judicial restraint); Holmes’s value of speech: the more valuable the speech the more protection and the less valuable the speech less protection; Holmes’s view that law is created to coerce citizens into compliance (judicial restraint); Holmes’s view of siding with majority factions (popular sovereignty and judicial restraint); Holmes’s positive view of war and its necessity; and Holmes’s theory of legal liability all pointed towards restricting the speech of Abrams and Gitlow. One argument was that Abrams and Gitlow were not popular cases with the mainstream media and the public and therefore there was not as much hysteria over the threat of communism compared to persons trying to hinder the war effort against Germany (Gitlow was after the war). Gitlow was a major case for another reason: It applied the First Amendment to the States. It is believed that Holmes supported applying the First Amendment to the States to create a landmark ruling and appease his superego. While the majority agreed that the First Amendment could apply to the States, Holmes thought by ruling against the legislative statute would make it clear the First Amendment did apply to the States. Remember, very rarely did Holmes rule against state legislative police power, so there must be some reason. Others would like to believe Holmes had a change of heart and all the sudden believed that free-speech and natural rights needed more protection. I would buy that argument if Holmes was consistent with all his free-speech cases after Abrams, but that was not the case.

In Pierce v. United States, the Court upheld convictions for violations of the Espionage Act. This case, like Schneck, dealt with a conspiracy and the distribution of an anti-war leaflet. Despite the similarities in the cases Holmes changed his view and joined Louis Brandeis dissent. In Schaefer v. United States, the Court upheld the conviction using similar logic as it used in Pierce. Schaefer dealt with a German language newspaper which changed articles and editorials it reprinted from other news sources. Once again, Holmes joined Brandies dissent even though this case had a lower threshold of proof since it was a conspiracy like Piece, Schneck, and Debs. Yet, in another similar case, Gilbert v. Minnesota, Holmes concurred with upholding the conviction of Gilbert who gave speeches that were anti-American. In Gilbert, Brandies was the lone dissenter. What made this case so different than Pierce or Schaefer? First, it was a state and not a federal case. Holmes’s first inclination was to practice judicial restraint and uphold state legislation and rulings regardless of their consequences on individual rights even if the decision conflicts with his earlier precedent. Secondly, Holmes objected because Gilbert’s speeches were said to instigate the crowd and make them unruly. Gilbert precedent would deem any modern conservative political speech unconstitutional because they always instigate, upset, incite, and anger liberals. Gilbert was proof that Brandies saw that free speech could only be restricted by the federal government during war times, but Holmes saw that free speech could be restricted by both the federal government and police power in times of war and peace. These philosophies were further enforced in United States v. Burleson where both Brandies and Holmes wrote separate dissents. Brandies dissent points to a difference between war time and peace time speech and Holmes’s dissent merely points to the fact that one man, the Post Office General, would have too much power. This, once again, violates Holmes’s position is Davis. If the federal government could deny any public speech, then why couldn’t a Post Office General deny seditious speech as outlined by a federal law. Since only Congress could declare war, Brandies felt only federal law could impinge free speech and States had no power to impinge speech. Holmes disagreed and his deference to state legislation provided state legislations broad power to control free speech. In Whitney v. California, the Court upheld the conviction of Whitney because membership in a group that advocated violence regardless of harm was sufficient grounds to convict any subject for conspiracy. Although Holmes and Brandies concurred with the conviction they dissented saying that the California statute was too broad because it could merely target political groups. Brandies Whitney dissent (Holmes joined) is seen today as the modern doctrine for free speech: not “bad tendencies” or a “clear and present danger” used by Holmes. Brandies brought forth the idea that free speech and individual liberty are closely related. Brandies also introduced the idea that speech had to be inciteful to abridge the First Amendment. Brandies said “The fact that free speech is likely to result in some violence or in destruction of private property is not enough to justify suppression. There must be the probability of serious injury to the state.” Obviously Brandies free speech philosophies are much more protective than those of Holmes.

Oliver Wendell Holmes was no Protector of Free Speech (Part I)

In past publications, I have uncovered the evils of Oliver Wendell Holmes. Holmes was a bigot and racist as his decisions in Mueller v. Oregon (gender discrimination), Baily v. Alabama (racial discrimination), and Buck v. Bell (mentally challenged discrimination) illustrate. Holmes’s Lochner dissent was revered in history. Yet, in Bailey Holmes contradicts his views about contracts in Lochner to uphold a flagrantly racial discriminatory law. Holmes was on the wrong side of history in all these cases, even in Lochner. Liberal courts have used the substantive due process techniques introduced in Lochner to uphold abortion and gay rights. In fact, Holmes saw the Fourteenth Amendment as “perverted” and therefore, discrimination was never considered by Holmes in terms of equal protection under the law. Consider the case Interstate Consolidated Railroad Company v. Massachusetts where Holmes held that a law forcing the railroad company to charge students half price was constitutional. Holmes said the law could be upheld by calling it an education tax. However, this law was discriminatory because it was a tax against only railroad companies. A tax should be consistent and target all businesses equally. This decision also conflicted with Holmes’s decision in Pennsylvania Coal Company v. Mahon. In this case Holmes held that a Pennsylvania law was unconstitutional because it was a taking of private property without just compensation. A tax is also an unjust taking of private property when it targets just one business sector. Holmes had a “political attitude” towards the law because he believed that the law should follow the philosophies and ideas of popular sovereignty. Holmes felt that lawyers also needed to be experts at economics. This makes little sense, but it may help explain many of his decisions in Mueller, Lochner, Mahon, and Interstate Consolidate Railroad Company. Holmes felt his opinions favored what was economically best for America, not what was legally best. And since a majority of Americans had subpar views of women in the workplace, minorities, and the mentally challenged, Holmes felt it was the will of the people to discriminate against them. It was okay to discriminate so long as the power of the majority felt it was okay. Holmes’s view on speech was not much different. Holmes would defer to popular legislation to restrict speech more times than not.

One of the great attributes accredited to Supreme Court Justice Oliver Wendell Holmes was that of being a protector and champion of free speech. This is far from the truth. In most free speech cases Holmes followed his theory of legal liability which includes distinguishing between harmful acts, attempts, and abuses of privilege. Harmful acts were particularly easy to identify. If a speaker’s act was harmful then the speaker was liable for their actions regardless of any intent or foresight. This followed the doctrine of “bad tendencies” utilized by the Court to determine what speech is protected and which speech is outside constitutional protection. For instance, Holmes would classify someone yelling fire in a crowded movie theatre as an example of harmful speech because it could incite a melee (I doubt this famous Holmes example would win any support in the modern Court). Many harmful speaking acts are privileged such as criticizing public officials and rights to association. However, that privilege may be rescinded if an unlawful conspiracy is charged against a group of association. In cases of conspiracy defendants are guilty if unlawful intent is proven regardless of any proximity of harm (a clear and present danger). In individual cases where no conspiracy exists, both unlawful intent and proximity of harm must be proven. An attempt is when liability may be imposed on non-harmful acts but only if the speaker intended harm and there was a proximity of harm. An attempt is the hardest to act of liability to prove. For example, in one case Holmes wrote “If a defendant had gone no further than to buy a box of matches for the purpose [to start a fire], he would not have been liable”, but if the defendant went to the place he intended to start a fire and changed his mind he would then be guilty of attempted arson. By holding free speech to same standard as his theory of legal liability, Holmes decreased free speech rights and by no means expanded or protected free speech rights.

McAuliffe v. New Bedford was a case decided by Holmes while he sat on the Massachusetts Supreme Court. The case involved a statute where a policeman whose political free speech was restricted while he held a public service job. Holmes declared “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” This statement cannot be more wrong because all people have a right to pursue any lawful profession. Similarly, in Laurel Hill Cemetery v. San Francisco Holmes said a law that denied cemeteries within the city limits was Constitutional. Once again, Holmes sided against the right of the individual to pursue a lawful occupation at the expense of discriminatory state or local legislation. In Holmes’s view the burden of proof was on individuals to prove state laws were not needed instead of on state legislators to prove why the laws were essential especially those that violated the rights of an individual. And the only reason a state or municipality needs to pass a law, in Holmes view, was because it was what a majority wanted. In Holmes view, there was no need to show a compelling state interest for laws that violate the rights of individuals. Holmes ignores the Constitution and its view to protect the natural rights among citizens equally without bias to majorities (this is how practices like slavery start). In Holmes view judges should uphold dumb, stupid, harmful, or discriminatory laws if that is what the majority wants. This type of thought is just dangerous. One person’s rights are not more important than another person’s rights merely because one belongs to a majority. But this is precisely what Holmes decides in Laurel Hill and McAuliffe. Remember, Holmes said, “The whole collectivist tendency seems to be toward underrating or forgetting the safeguards in the bill of rights….” In Commonwealth v. Davis (also decided while on Massachusetts Supreme Court), Holmes’s opinion declared that a State has the right to forbid any public speaking in the streets and in parks. Of course, these early rulings by Holmes were perverse and have absolutely no bearing in modern society. If Holmes had his way, the government would employ the speech police to keep Americans in line.

In Hanson v. Globe Newspaper Company Holmes found the newspaper libel when it erred in writing critically about H.P.H Hanson as H.P. Hanson. The real H.P. Hanson filed suit. Even though there was no intent to harm H.P. Hanson, false statements of fact about Hanson made the newspaper libel in Holmes’s view. Modern courts would never come to the same conclusion. In this instance, the courts would protect the newspaper from a suit since it was an accident and could be corrected by a simple statement clearing the plaintiffs name. It is true, that false statements of fact have no First Amendment protection under modern jurisprudence. However, in this case, the statements may have been false, but they had a lawful intent (not unlawful intent). The paper simply made a mistake. If every mistake made a newspaper liable to a suit then there would be no Freedom of the Press. In Patterson v. Colorado Holmes found an ex-Senator’s editorial about the Colorado Supreme Court was in contempt. This case was about whether the government could enforce prior restraint on free-speech. Even though Patterson’s speech was truthful, his editorial mentioned both current and possibly future cases before the Colorado Supreme Court. Hence, Holmes found Patterson was guilty obstructing justice and found him in contempt. However, the truthful claims by Patterson revealed potential corruption and this should never be a violation of free speech. Why would any whistleblower ever come forward if they could be found in contempt while their truthful statements are ignored? This is another bad decision because it fails to protect one of the most important forms of speech: truthful speech which identifies a crime or the violation of a person’s rights. However, in Near v. Minnesota, the Court found prior restraint of free speech unconstitutional even if the speech was untruthful or had malicious intent. Future letters indicate that even Holmes admitted he erred in Patterson. In fact, Holmes’s change of heart in his opinion for Toledo Newspaper Company v. United States was proof that Holmes knew he was wrong in Patterson. By Brandenburg v. Ohio in 1969 (only literal incitement fell outside of First Amendment protection) all of Holmes’s free speech doctrines would be abandoned. Even during the Red Scare of McCarthyism during the 1950s free speech was not restricted to the degree of Holmes’s free speech doctrines.

Modern Example of Abortion and Eugenics

CBS ran a story about how Iceland “eliminated” downs syndrome from its population and many other countries are not too far behind. The word “eliminated” is not the correct term, the correct term is “killing” down syndrome through abortion. This is further proof that abortion which was founded on the principles and philosophies of eugenics is still following these same practices in modern times. The article’s title: “What Kind of Society Do You want to Live In: Inside the Country where Down Syndrome is Disappearing”. The cleansing of society of defectives was what eugenics was founded on and it obviously still exists today. What’s even more troubling is that test used to determine downs syndrome on a fetus is at best 85% accurate. That means 3 out of 20 times the test is wrong with a false positive or a false negative meaning the abortion of a fully healthy baby is highly probable.

CBS said “With the rise of prenatal screening tests across Europe and the United States, the number of babies born with Down syndrome has significantly decreased, but few countries have come as close to eradicating Down syndrome births as Iceland.”

Moreover “Since prenatal screening tests were introduced in Iceland in the early 2000s, the vast majority of women -- close to 100 percent -- who received a positive test for Down syndrome terminated their pregnancy.”

Although the article states that most persons born with down syndrome live a “normal” life it portrayed some alarming statistics “Other countries aren't lagging too far behind in Down syndrome termination rates. According to the most recent data available, the United States has an estimated termination rate for Down syndrome of 67 percent (1995-2011); in France it's 77 percent (2015); and Denmark, 98 percent (2015). The law in Iceland permits abortion after 16 weeks if the fetus has a deformity -- and Down syndrome is included in this category.”

I have met several down syndrome children and adults. My only observation about them is that they are the happiest people I have ever met without a bad bone in their bodies. They do not have any feelings of hate or vengeance and they are not argumentative. For some reason, down syndrome persons are immune to being corrupted by the evil or the polarizing politics in society. We need more people with the compassion, sincerity, and caring of down syndrome persons, not less.

Where do we draw the line? Is it okay to abort females, like in China? Is it okay to abort any fetus with a defect such as a missing finger? What is to stop the government from compelling abortions of “defective” fetuses? After all, wouldn’t this control healthcare costs especially for a single payer system? How is aborting down syndrome fetuses any different than trying to compel Hispanics, African-Americans, or the poor to get abortions? Maybe I am crazy but I view all humans as being equal. It is dangerous when we start creating a hierarchy of acceptable persons. This is no different than what Nazism was founded upon: creating a “perfect” race. All persons are highly flawed for whatever reason, no one is even close to being perfect. Life is about working to become better persons since we are all defective in many ways. Life is not about eliminating or killing off those who do not meet our accepted definition of a person. This is dangerous and scary precedent since history has a way of repeating the same errors it has made in the past.

When Dreams Come True

I always dreamed of becoming a State Champion at something, it could have been anything: athletics or academia. Since my athletic prowess was limited, the closest I ever came was in my eighth-grade math club and that was not very close. Like most kids I dreamed of being a pro athlete and even making the Olympic team and winning a gold medal. All kids dream, but those dreams very seldom become a reality.

In 1979, I was a freshman in high school and a kid by the name of Keith Alston from neighboring Neptune High School won the state wrestling championship (Winning a wrestling state title in New Jersey was very hard since there was only 1 champion for all schools regardless of size). I read the article and dreamed about how cool that was and how lucky he was. I turned the page and there was a short article about how Alston died in a car accident coming home from the event. For years, I debated if Alston would have changed his destiny by giving up that state championship in exchange for the rest of life – about another 60 to 70 years. I don’t think Alston would have changed his destiny because he reached the pinnacle of his sport, a sport he loved and he trained so hard to excel. It changed my feelings about winning a state championship, I do not think there was anything out there more important than life until I found cycling because this sport comes with some risks.

After winning a state masters cycling championship (Colorado and Wyoming) in the time trial it made me truly understand the sacrifice, love, and pain associated with athletics. People do not understand the love people may have for a sport and how much suffering it takes to win a state title. I am certain Alston made the choice for his destiny. Why? Because I take some of the same risks every day. When I train outside I know there is a chance I may not see another day. Cars do not see you and even if they do they do not slow down or give you room. I go fast most days, and although I am going at or below the speed limit, when people see a cyclist they are not expecting them to be going 25, 30, or even 40 MPH so they pull out in front of me. I avoid at least one close call every week, yet I continue to ride and train. It would seem the risk is not worth it. Each year dozens of cyclists are killed or maimed from car accidents in Colorado alone. I try to mitigate risks by cycling on less busy roads, cycling at off peak hours, and wearing bright clothing but nothing will completely eliminate the risks. Why is it so important to risk life and limb? I do not exactly know. I believe being diagnosed with a neurological disorder changed how I view life. I literally thought I had ALS and would be dead in a few years. After ALS and MS were ruled out, I realized I was lucky to be diagnosed with cramp fasciculation syndrome. What I have is no picnic, but I have been given a second chance at life. Although exercise intolerance is one of my symptoms, I fight through it for one last chance to achieve some of my childhood dreams. The pain of training on top of a neurological disorder is extremely intense. I keep telling myself I will quit once I reach my full potential, but each day and week I keep getting better. I do not understand it and more importantly my doctors do not understand it. Yes, you can improve and get better at certain sports even in your 50s, 60s, and 70s. Each year I accomplish all my goals. It is amazing, I have never had so much success at anything.

I may not have ever been an Olympian or raced in the Tour de France but I race against a person who has accomplished these feats – Norman Alvis. Alvis was one of America’s best cyclists outside of Greg LeMond in the 80s (and 90s). Alvis was a U.S. cycling champion and held the one-hour time trial record (on a track) for nearly 20 years (it was just broken last year). Alvis currently holds the U.S. record for the one-hour time trial for the 50+ group. He rode the Tour de France and Italia multiple times. His team finished 10th for the team trial in the 88 Olympics. Alvis beat me by a mere 7 seconds in an 8-mile time trial earlier this summer (16:48 to 16:55). I may not have accomplished my dreams of the Olympics, but I am holding my own racing against a former Olympian. The success of Greg LeMond generated dreams of riding in the Tour, and although that did not happen, I am holding my own against a guy who did. This is just as good as accomplishing that dream.

Please do not give up on your dreams and goals. No matter how hard and difficult persistence and hard work generally pay off. I am not saying dreams are worth dying over, but accomplishing them before you die is well worth some risk. Unfortunately, it took a situation where I thought I was going to die before I truly pursued some of my dreams. We should not require a wake-up call before we show some urgency to live life to its fullest.