30 January 2016

Ripped from the headlines: "Make no law"

"[M]ake no law... abridging the freedom of speech."

Seems pretty clear, doesn't it? Anything ambiguous about the phrase "no law?" Seems to me "no law" means "no law", right?  

So, does that mean the government cannot make a law forbidding speech that goes, "Give me your wallet or I will kill you?" No? Why not? Well, generations of Supremes have told us that sometimes you cannot literally apply Constitutional language. Why not? Well, they explain, "Because". (Good for them. "Because" was my favorite answer to my children when they asked me why they couldn't do something I didn't want them to do because my gut told me not to let them do it.) So the anointed ones have told us that despite the clear language of the First Amendment, sometimes it doesn't really mean what is says and therefore it's perfectly okay sometimes to make laws abridging some speech.  Today we have a long list of speech that is, in fact, legally "abridged", such as, threats, conspiracies to commit  crimes, some incitements to violence, copyright infringement, statements in violations of court orders or rules, some defamation, passing of some government secrets, and a lot more.

But the problem with this approach is that once you start "interpreting" language clear on its face, the slope gets slippery. If a threat is illegal, can I make one that is conditional, as in "If the court were not in session I would kill you?" Or utter an incitement to riot that is temporally vague, i.e, "Let's burn down those buildings, but not right now"?   Or is it okay to declare a general Holy War on the United States, publish on the internet a recipe for building a bomb that can blow up an airplane or kill and maim hundreds of  Boston Marathon runners, and then urge people to make one and use it? That okay? There's lots of lawyers, and probably judges too, who would say "Of course it's ok, make no law abridging freedom of speech."  Who's crazy, me or them?

Then the lawyers really get going, and we start to move farther down the slope. A reporter prints ''I know who detonated the bomb in the school and killed the kids." But when the detectives ask for the identity of the mass murderer, the reporter says, "Sorry, but I promised him confidentiality, and because I am a "journalist'' I have the right not to reveal the name of my informant because that would impair my First Amendment right to gather the news and speak freely.''  That sound ridiculous?  Where does it say that in the First Amendment, or anywhere else in the Constitution? I can't find it, but there's a legion of lawyers and judges who say that "Well, of course, it doesn't say that, but just because it doesn't say it doesn't mean it doesn't mean it."  Oh, I see. And many states, bowing to lobbying pressure from publishers and their employees, have even passed statutes to that effect. They are called "Shield Laws." If you qualify as a "journalist", you are a beneficiary. (And the definition of a journalist may well include bloggers. Yippee!)

Where is the bottom of that slippery slope?  Ahh, we may well have reached it in the last few weeks. If not, all is lost. Two instances, and if this doesn't point out the absurdity of this nonsense, nothing ever will.

First, we have the anti-choice fraudsters who forged California driver's licenses in the process of trying to deceive Planned Parenthood employees into making an illegal sale of fetal tissue. (The law says it is okay to give researchers fetal tissue for research designed to save fetal lives, and the donor may not "sell" the tissue but may be compensated for its transaction costs. In the wacko-induced fraudulent transaction, the PP people asked for $60, but the fraudsters nevertheless offered $1600 and presumably were upset when they got no response). So a Texas, (yes, TEXAS) grand jury, looked into the transaction, and, led by a right-to-life prosecutor, cleared PP and indicted the anti's for fraudulent use of altered government documents.  The defense?  Get this: "We are 'citizen journalists' and therefore were acting within our Constitutional rights."  I guess that would vindicate a Drudge blogger who broke into your house and planted a video camera in your bedroom, right? Well ...as long as she was a "citizen journalist."

Next up (actually, down) are are gun-happy militiamen, led by the nutty Bundy brothers (great hats, though) who are sons of the guy who insists on profiting by grazing his cattle on government land without paying a fee.  The Bundys and their pals occupied a federal government wildlife refuge in Oregon and threatened to kill any government officer who tried to remove them. Their defense? What they did is okay because they are part of an organization called "Citizens for Constitutional Freedom.''  I guess that as long as its "Constitutional," we are all for "Freedom", right? Can't hardly argue with that, can ya? 

Sigh, at the bottom of the slope, I see a ditch.

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