As you’ll recall from an earlier post, the dispute is over the release of the names of 138,000 petition signers in Washington state who wanted to see Ref 71 (repeal of a domestic partnership law) on a state ballot in November. Gay activists want the names released so they can be published on websites, similar to what was done in California and other states with regard to marriage and domestic partnership issues.
Although gay activists say they just want to encourage polite discussion between petition signers and their “friends,” we know, as the LA Times has reported, the results of such publication can be devastating:
Christoffersen was a manager at El Coyote, the Beverly Boulevard landmark restaurant that’s always had throngs of customers waiting to get inside. Many of them were gay, and Christoffersen, a devout Mormon, donated $100 in support of Proposition 8, the successful November ballot initiative that banned gay marriage.
She never advertised her politics or religion in the restaurant, but last month her donation showed up on lists of “for” and “against” donors. And El Coyote became a target.
A boycott was organized on the Internet, with activists trashing El Coyote on restaurant review sites. Then came throngs of protesters, some of them shouting “shame on you” at customers. The police arrived in riot gear one night to quell the angry mob.
The district court judge agreed with petition signers’ arguments that signing one’s name to a petition is classic anonymous political speech (which is strongly protected by the First Amendment) that would be “chilled” if signers expected to be subjected to reprisals like the one described above. The 9th Circuit, however, reversed the district court and ordered the release of the names, only to be temporarily stopped by a Supreme Court order found here. That will be the status quo until we hear whether the Supreme Court decides to hear the full case on appeal or not.
On Friday’s Focus on the Family Action broadcast, Dr. James Dobson alerted listeners about recent actions taken by Congress and our President that could affect families and children for years to come.
He was joined by three members of our public policy team—myself as the education analyst; Tom Minnery, our Vice President; and Carrie Earll, the director of the Issues-Analysis team. Here’s a quick run down:
We began the broadcast by discussing our alarm over the appointment of “Safe Schools Czar” Kevin Jennings, including his commitment to pushing homosexual advocacy into schools down to the kindergarten level.
Also topping the list of concerns was President Obama’s pledge to work to overturn a federal law protecting traditional, man-woman marriage (the Defense of Marriage Act, DOMA).
When Tom Minnery pointed out that the President’s pledge actually contradicts traditional-marriage measures passed in at least 45 states, Dr. Dobson expressed his distress: “Can you imagine, now, that the President of the United States stands up there and essentially contradicts and defies the will of the American people in 45 states? What gall!”
Also discussed was the “hate crimes” legislation, recently passed by the U.S. Congress. Carrie Earll expressed her concern about the “aiding and abetting” section that’s attached to the bill, which could eventually be used to attack pastors who dare to preach about homosexuality.
To listen to the whole broadcast, click here.
“The Supreme Court has consistently held that a component of the First Amendment is the right to anonymously participate in a political process” said U.S. District Court Judge Benjamin Settle in an opinion granting an injunction last week forbidding the disclosure of petition signers in the State of Washington. Over 138,000 citizens signed petitions to support placing a question on the next general election ballot to overturn a recently enacted (by the legislature) domestic partnership law. Various gay activist groups had sought disclosure of the names under existing state disclosure laws in order to place the names and addresses of the petition signers on the Internet. As we’ve seen done in several states like Massachusetts, Florida and most recently in California, petition signers have been harassed and their property vandalized after their personal information was disclosed.
The state has an interest in ensuring the “integrity and reliability” of the ballot initiative process, according to the U.S. Supreme Court, but the First Amendment requires courts to “guard against undue hindrances to political conversations and the exchange of ideas.” (Buckley v. American Const. Law Foundation, 525 U.S. 182). Because of the threatened harassment of petition signers by gay activists, a seemingly harmless state disclosure law became a tool for “chilling” free speech. The judge’s decision looks like a good one to me, but this particular issue is not settled.
The state has announced that it will appeal the district court’s decision.
On September 8 the 9th Circuit U.S. Court of Appeals in San Francisco held that a school administrator could forbid a religious instrumental piece at a graduation ceremony. The case, Nurre v. Whitehead, involved a 2006 high school graduation ceremony, a student-selected instrumental piece titled “Ave Maria” (This one, not THAT one), and a recent history of public complaints over a religious song sung at the school’s 2005 graduation.
Apparently stung by the public criticism of that 2005 graduation song, the school’s administrators banned the “Ave Maria” instrumental piece for the 2006 ceremony. The federal court supported the administrator’s decision, even though the court admitted that playing the musical piece would not have violated the Establishment Clause of the First Amendment.
The dissenting judge, Milan Smith, argued that letting the school district off that easy would cause chilling of students’ free expression:
“…[T]he practical effect will be for public school administrators to chill – or even kill – musical and artistic presentations by their students in school-sponsored limited public fora where those presentations contain any trace of religious inspiration, for fear of criticism by a member of the public, however extreme that person’s views may be.”
I agree. Most school districts have shown a marked tendency to take the path of least resistance in student free expression situations, knuckling under to the first complainer wishing to exercise a “heckler’s veto” over any religious content. This decision puts the bullies in charge of students’ First Amendment rights.
Do corporations have the same rights of free speech as individuals? What about at election time? Is the fear of corporations spending huge sums of money on TV and radio commercials at election time, and perhaps unduly influencing or even corrupting the election process, reason enough to restrict such spending/speech?
A special Supreme Court hearing takes place on Wednesday in the case of Citizens United v. Federal Election Commission. Although the case originally involved a non-profit corporation who produced and wanted to advertise the movie “Hillary: The Movie” in 2008 during the election season, the case seems to have landed upon the larger question of whether a couple of major Supreme Court precedents upholding campaign finance laws should now be overruled, meaning more corporate speech, and less government regulation of campaign finances for federal elections.
A thorough discussion of the history of campaign finance laws and this case in particular can be found at Scotusblog.
My own take is that I do not want the government protecting me from political speech that politicians think could be bad for me because it is misleading or made for hidden motives. Frankly, I don’t trust the government’s judgment as to what’s good for me, and it will inevitably overreach in banning speech. Further, such laws usually protect the incumbent legislators who pass them (i.e., stricter controls on speech favor the politician in office) more than anyone else.
The remedy for bad speech is more speech, not less. We’ll see if the Supreme Court agrees with that in this case.
No nation is really “free” unless it is willing to tolerate unpopular speech. Even the best-intentioned speech code always ends up going too far. Ask Canada. What started out as a sincere effort there in the 1960’s to stop the rise of racist telephone hotlines has morphed to cover the entire Internet and every critical comment about almost any other person or group, now punished with steep fines and gag orders. Write an article about radical Islam? Face a “hate speech” charge. Just ask Mark Steyn and Ezra Levant. Write a letter to the editor about the Bible’s view of homosexuality? Trip to the Human Rights tribunal. Steep fine. Gag order. Ask Pastor Stephen Boissoin.
Finally, however, a small leak in the dam of Canadian government speech-chilling efforts has opened up at a tribunal empowered with enforcing the national speech code. The Canadian Human Rights Tribunal has issued a ruling finding that Canada’s “hate speech” law conflicts with constitutional guarantees like freedom of expression, conscience and religion – so it won’t enforce the hate speech law. The tribunal’s finding doesn’t immediately change the law, but it’s akin to having the fox resign from guarding the henhouse. And last year an expert hired by the Canadian Human Rights Commission issued a report urging the Commission to get out of the business of policing hate messages on the Internet. This could be the start of something worth talking about.
No, I’m not condoning the speech at issue in the Canadian ruling. But I’ll tolerate it if it means that I can be confident that my words uttered tomorrow will not invite a visit from the constable.
We’ve seen this type of thing before. A street preacher or pro-lifer is talking to people on a public sidewalk, and gets arrested for disorderly conduct or disturbing the peace. But wait. How does “talking to people” get classified as “disturbing the peace” or “disorderly conduct?” Primarily through vague statutes that invite, either intentionally or unintentionally, a governmental overreach. In the most recent New Haven, CT street preacher case, a state statute made it illegal to, with “intent to cause inconvenience, annoyance or alarm … by offensive or disorderly conduct, annoy or interfere with another person…”
Now that is not a statute that I would hold up as a model of great draftsmanship, but it is the type of wording that has made it into a lot of state statutes and local ordinances around the country. There are lots of factual non-speech situations where the application of such a law would be perfectly appropriate.
Where speech is involved, however, problems arise. For example, the message of the Gospel is inherently “annoying” to many people. So is the content of political speech, depending on the listener. Our Founders not only appreciated that reality, but actually welcomed it. They protected it in the First Amendment.
The lesson of the New Haven case is simple. Generally, speech can’t be prohibited because the message is “annoying.” But speech can be prohibited if the manner in which it is presented is “annoying.” For example, if a street preacher was outside my bedroom window at 2 a.m. with a bullhorn delivering his message, I’d be more than happy to call the cops on him for disturbing the peace, even though I might AGREE with his message.
