Judges Who Broadcast Their Imprudent and Injudicious Behavior

Ronald D. Rotunda Aug 8, 2015
Judge WritingType “judges behaving badly” into Google, and you will get over 400,000 hits. There is one story after another about judges acting injudiciously, sometimes criminally. For example, the state of Oklahoma convicted one state judge of exposing himself while presiding over jury trials. He used a penis pump under his robes. His former court reporter testified that she saw him expose himself at least 15 times during a two-year period. In a murder case, the jurors asked the judge about the whooshing sound under his desk. He said he had not heard it. He later said that a fishing buddy gave him the pump as a joke. “It wasn’t something I was hiding.”
When state judges act injudiciously, state judicial discipline is available. The state remedies include the state publicly reprimanding the judge, or suspending him or her without pay for a period, and even removing him or her from the bench. In addition, in many states, the people vote for their judges, so that periodic elections can remove embarrassments.
No so for federal judges. Their lifetime tenure and salary protection make them immune from effective discipline, although Congress can impeach for serious offenses—a rarely used remedy, unless the federal government convicts the judge of a felony. Even then, the judge remains a judge and collects his salary, while serving time in prison, until the House impeaches, and the Senate removes the federal judge.
The framers of our Constitution gave federal judges lifetime tenure and salary protection to to make judges independent, not to authorize them to act with gay abandon. Some judges do not understand that, when they ascend to the bench, they are supposed to leave their politics behind.
Let us consider District Judge Richard Kopf of the District of Nebraska. He wrote a blog he calls, Hercules and the Umpire. In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court held that a regulation of Health and Human Services could not force Hobby Lobby to pay for abortifacients to give to its employees. Congress could pay for the abortifacients if it chose to do so. There would be no constitutional problem with that. Indeed, Congress could distribute free abortifacients on vending machines each street corner, but Congress (actually, in this case, the Secretary of HHS) could not force one private party to pay for another’s abortion. That violated a federal statute directly on point. The decision protected the religious liberties of the employer.
Judge Kopf published his analysis of this decision in is blog. It was pithy: “As the kids say, it is time for the Court to stfu.” Where he prints “stfu,” he added a hyperlink to the Urban Dictionary, helpfully explaining to the reader what “stfu” means. All in all, for that one posting, one sees the term “stfu” 64 times. Kopf says that the majority decided as they did because they are Catholics. Kopf, by the way, compares his own legal analysis to that of the late Professor Alexander Bickel of Yale, whose writing is more eloquent.
Judge Kopf’s blog gave him 15 minutes of fame in the popular press, with an article in the Huffington Post and a few other places about his language. Not content with just 15 minutes, he later decided to attack Senator Cruz. On July 6, 2015, Judge Kopf told us, “Senator Ted Cruz is not fit to be President.” I hold no brief for Senator Cruz; I do wonder, however, why federal judges (who are supposed to leave their politics behind when they assume the bench) would signify their disapproval, rebuke, or endorsement of any presidential candidate.
If Judge Kopf wondered whether it was ethically proper to give his official seal of approval or disapproval to a presidential candidate, he was not cast adrift with no navigational aids. The Administrative Office of the U.S. Courts publishes is Code of Conduct for U.S. Judges. The very first sentence provides, “Federal judges must abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States.”
The title of Canon 5 provides, in bold letters no less, “A Judge Should Refrain from Political Activity.” Canon 5A(2) states and a judge should not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” [Emphasis added] That sentence is not difficult to understand. The Administrative Conference also provides ethics opinions to explain further what is not permitted. The Committee on Codes of Conduct Advisory Opinion No. 19 (June 2009) explains that Canon 5A(2) is so strict that the judge should resign membership in a political club advocating and maintaining the principles of any political party even though the judge does not actively participate in the club.
In case one wonders what about Senator Cruz so irked Judge Kopf to proclaim his public opposition to Cruz’s candidacy, Kopf—who concedes that he should not be handing out such pronouncements—tells us in no uncertain terms:
As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal [emphasis added] to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal. Senator, and Presidential candidate, Ted Cruz has recently stated,
I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
Because Cruz “is serious” about this “extreme proposal,” Cruz “is demonstrably unfit to become President.” Judge Kopf actually claims that he “did not label Senator Cruz unfit to serve in order to oppose his candidacy”; Kopf could have fooled me. I thought that if you say that Cruz is not fit to become President that means that you oppose his election to that office. No, says Judge Kopf, who claims he made his statement “rather to demolish [sic] and protect us all from his intemperate legal attacks on the Supreme Court.”
Whether one thinks that the idea of having term limits for judges is a bad idea or a good one, a proposal for a constitutional amendment is hardly an intemperate attack or an extreme proposal. In 2009, Professor Paul Carrington of Duke University urged Congress to consider term limits for Supreme Court justices. Last October, Dean Erwin Chemerinsky of the University of California Irvine, said, “I do believe there should be term limits for Supreme Court justices.” He presents his arguments in his article, Ted Cruz Is Right: The Supreme Court Needs Term Limits. Was that yet another extreme proposal or an intemperate attack on the Supreme Court? Chemerinsky argues that judicial elections are not the answer. Instead, he proposes that each justice should be appointed for an 18-year, non-renewable term, thus creating a vacancy every two years. He develops this idea in one of his recent books. Linda Greenhouse has also proposed 18-year terms.
Polls show that a large majority of Americans, without regard to party, support some sort of term limits for U.S. Supreme Court Justices. Last June, the Supreme Court ruled held that there is a constitutional right to same-sex marriage nationwide (a result that drew popular support) and that it would reject another challenge to President Barack Obama’s healthcare law (which does not enjoy such widespread support). A month after those two cases, a Reuters/Ipsos poll showed that the people, in general favor term limits for Justices: 66 percent of Democrats, 74 percent of Republicans and 68 percent of independents all favored the 10-year term limit for Justices. Are two-thirds of Democrats “intemperate” because they want limits on Supreme Court Justices that are stricter that what Cruz proposed?
Judge Kopf no longer updates his blog. He shut it down on July 9, 2015 (“I am today pulling the plug”), three days after he told us that Cruz is unfit to be President. His pages are still available on the web, but he no longer updates. Why? He says that it is not because of any judicial discipline, and anyway, any discipline complaint “would not discourage me from blogging,” he adds. In addition, “I am not pulling the plug because of any mental or emotional struggles or treatment.”
Instead, “I am pulling the plug because I learned a couple of hours ago about a discussion held at a retreat for our employees.” What did he learn? The Chief Judge asked, “how many of the employees felt the blog had become an embarrassment to our Court. The great majority raised their hands.” (Emphasis added.)
That is why he is pulling the plug. He is an embarrassment to the federal courts.

Abandoned Symbols: Confederate Flags and Criminal Justiceby Joseph Margulies

ORIGINAL ARTICLE
Old Confederate FlagIn the wake of the horrific massacre in Charleston, leading social conservatives across the country have loudly called for the removal of the Confederate battle flag from public display. But some people have wondered whether their call, however welcome, will prove nothing more than an empty gesture, a cynical strategy to woo moderate whites to the conservative camp in the 2016 election.
As is my wont, I am more hopeful. In ways that have not been adequately appreciated, the elite repudiation of the flag in the wake of Dylan Roof’s murderous rampage could be an important step, not simply in the debate over slave-era symbolism but in the contemporary struggle for criminal justice.
***
Why do we care about symbols? They don’t put food on the table, money in your pocket, or a roof over your head. You can’t eat a symbol. But they are nonetheless as important to our lives as anything we can buy.
Symbols play two equally important roles in American life. In the most obvious sense, they represent a belief system. The Constitution, for instance, symbolizes our belief in and commitment to the rule of law. Yet symbols also signal our membership in a particular community. For many years, Christians have used the ixthus to signal their faith to fellow believers, and many conservative Christians now display the symbol in their home or business or affix it their cars.
This dual role makes symbols vital to both our personal and communal identity; they declare what we believe as individuals and confirm our place in a tribe of like-minded others. We could never survive without symbols, and if suddenly they were taken from us, we would surely create others to take their place.
Yet symbols are deliberately vague and ambiguous. That’s part of what makes them so valuable. It is important that the Constitution, as a symbol, not be given a single, inflexible meaning, since that would prevent it from accommodating the shifting demands of the day. Equality, for instance, means something very different today from what it meant during the heyday of Jim Crow. In fact, historians have shown that its meaning today bears only a distant “family resemblance” to its meaning at the time of the Founding.
What is true for equality is no less true for many of the other terms and expressions in the Constitution, as recent historic events in the Supreme Court have made abundantly clear. What we mean by liberty, wrote the historian Michael Kammen, has “changed and broadened over time, . . . ranging from constraints upon authority to improvements in the conditions of social justice, of privacy, and a growing concern for the protection of personal liberty.”
This process is not only natural but inevitable, despite what Justice Scalia might think. As Justice Felix Frankfurter once observed, “Great concepts like . . . ‘due process of law,’ ‘liberty,’ [and] ‘property’ were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”
The meaning of symbols is thus perennially a work in progress, continually renegotiated in the many spaces occupied by both the individual and the community—the private space, where the individual reflects on her own beliefs; the communal space, where the community speaks with its own members; and the public space, where the community speaks with the wider world.
In this never-ending negotiation, we have long understood the prominent role played by the community’s elites. These are the politicians, religious leaders, and other public figures that are widely believed by the community itself to be the keepers of the flame, the men and women who best represent the ideas and ideals of the belief system.
And that brings us at last to the Confederate Flag. In the days since the massacre in Charleston, elite social conservatives have consciously redefined the flag in both its individual and communal sense. Consider this statement from South Carolina State Senator Paul Thurmond, the son of arch-segregationist Strom Thurmond:
I think the time is right and the ground is fertile for us to make progress as a state and to come together and remove the Confederate battle flag from prominent statue outside the Statehouse and put it in the museum. It is time to acknowledge our past, atone for our sins and work towards a better future. That future must be built on symbols of peace, love, and unity. That future cannot be built on symbols of war, hate, and divisiveness.
. . .
Now we have these hate groups and the symbols that they use to remind African Americans that things haven’t changed and that they are still viewed as less than equal human beings. Well, let me tell you: Things have changed. Overwhelmingly, people are not being raised to hate or to believe that they are superior to others based on the color of their skin. My generation was raised to respect all people, of every race, religion, and gender.
At the individual level, Thurmond declares that the Confederate flag cannot be a legitimate representation of the southern, socially conservative belief system. A true southern conservative, he admonishes, does not believe in these things.
But the communal redefinition is even more important. Pronouncing that “things have changed,” Thurmond emphasizes the need “to come together” as a state and build a future around “symbols of . . . unity” rather than “divisiveness.” The implication is unmistakable. Contrary to the long-held socially conservative mantra, Thurmond says the flag does not represent fidelity to an honorable heritage, but to a racist, violent, sinful past.
In announcing this change, Thurmond has declared that the voice of the black community, which long called for this change, is more important than the voice of a significant portion of the white community, which had for just as long called to maintain the status quo. Inclusivity, with its explicit appeal to common membership in a broader community that transcends race, has trumped the traditional exclusivity of southern, white, social conservatism.
This is an extraordinarily potent declaration. Calling divisive symbols into question, demanding anew that they prove themselves worthy of inclusion in the conservative canon, and repudiating them if they are found wanting implies a healthy receptivity to profound change. And if applied conscientiously, a determination to denounce symbols deriving from a racist, divisive past would sweep away much of the iconography of modern conservatism.
In particular, we have known for years that much of the architecture of the criminal justice system has been built around precisely such symbols: Willie Horton, the welfare queen, the crack whore. These and other symbols have generated an entire set of divisive law enforcement and prosecution strategies, like the war on drugs and “zero tolerance” policing, that have been broadly endorsed by whites but widely deployed against blacks. If the denunciation of the Confederate flag implies a willingness to revisit these toxic symbols and failed strategies, and to heed the voice of the black community, then criminal justice reform is truly upon us.
I may be hopeful, but I am not naïve. I have no illusions that the repudiation of the Confederate battle flag, by itself, will eliminate racism in this country or make the criminal justice system fair. But the combination of message and messenger—elite social conservatives siding with an historically marginalized black community over numerically, economically, and culturally dominant whites to remove a divisive symbol of oppression—is an enormously important step that should be encouraged.

Is the Federal Government Really a State, if the IRS Says It Is?

By July 4, the Supreme Court will have decided King v. Burwell. (Those of us who write about the most recent cases sometimes do not have a work-free July 4th weekend, but the Justices always do. The justices like a summer vacation longer than just a few weeks, so I can confidently predict we will know the answer before July 4, and most likely before the end of June.)

King v. Burwell involves the Patient Protection and Affordable Care Act [Pub. L. No. 111-148]—popularly called either the “ACA,” or “Obamacare” by both its opponents and its proponents. The litigation now before the Supreme Court is, on the surface, a simple issue of statutory interpretation. Only millimeters beneath the surface is a broader issue—how far will the courts go in allowing administrators to change the law by simply redefining terms that are not vague at all. This issue is peculiarly significant because the agency doing the redefining is the Internal Revenue Service. The first named defendant is Sylvia Burwell, the Secretary of Health and Human Services, but another defendant is the IRS, and it is the agency doing the redefining. No case has ever held that Congress could delegate to the IRS the power to raise or lower taxes.

The ACA, in Section 1311 [42 U.S.C. § 18031], provides that states shall create Health Benefit Exchange (“Health Exchanges”). If they meet certain criteria, they are “Qualified Health Exchanges.” The qualified Exchanges qualify for federal subsidies. Nonqualified exchanges do not.

The Court has consistently held that Congress does not have the constitutional power to order or commandeer states to enact particular laws. New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). While Congress cannot force a state to enact a qualified Health Exchange, it can use its taxing and spending power to “bribe” states by offering various incentives to states that enact and implement the kind of laws that Congress wants. That is what the ACA does.

It provides that if a state creates a qualified Health Exchange by January 1, 2014, then another section of the law—26 U.S.C. § 36B, in the Internal Revenue Code —offers generous subsidies. The subsidies are in the form of ‘‘premium assistance tax credits” and “refundable tax credits.” They not only reduce tax liability but also provide for federal money paid to private insurance companies.

Congress also created a fallback position: if a state refuses to set up a State Health Exchange, a different section of the ACA [42 U.S.C. § 18041(c)] authorizes the Secretary of Health and Human Services (HHS) to set up Federal Exchanges in those states that refuse to set up a State Exchange.

No provision of the ACA offers any tax subsidies or payments for federally created (as opposed to state created) Health Exchanges. That supports the carrot-and-stick approach to encourage states to create, implement, and maintain state Health Exchanges. In other words, if the state creates a Health Exchange, its citizens secure valuable tax benefits in addition to acquiring health insurance. If the state refuses to create, implement, and maintain a Health Exchange, that state’s citizens do not receive the financial benefits, but they will have to pay federal taxes that finance the subsidies that residents in other states (those with state-created Exchanges) will receive.

Besides to the financial incentives (carrots), the ACA has disincentives (sticks) to prod states to set up Health Exchanges. For example, the law penalizes states that do not create Exchanges by barring them from narrowing their state Medicaid programs until “an Exchange established by the State . . . is fully operational.” [42 U.S.C. § 1396a(gg)]

As one proponent of the law explained,

[I]f you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So, you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country.

Congress expected that all or most states would take this “bribe” because it gave an offer that was hard to refuse.

Nonetheless, some states—actually a lot of states34 of them — did not pick up the free federal subsidies (the carrots) and were willing to put up with the disincentives (the sticks). They simply refused to establish State Exchanges. It turned out that the ACA has not been as popular as its proponents believed it would be. Indeed, polls show that the more people learn about the law, the less favorably they view it. Moreover, many individuals have concluded that it is quite rational to not pay for health insurance until they get sick, because the fines are often not very much and the ACA does not allow insurance companies to refuse coverage because of preexisting medical conditions.

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Follow the Money . . . to Ferguson

March 9, 2015., by Joseph Margulie

Original Article



“Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” So began the report written by the Civil Rights Division of the Justice Department, a 100-page indictment of the Ferguson Police Department. The entire document repays careful study, but at its core, the report describes a department—and municipality—beset by two overlapping problems.

First, the City uses its police to close gaps in the city budget rather than deter or investigate crime. As a result, the police in Ferguson are fee- and fine-producers instead of peace officers, which has predictably led to chronic over-policing. “Many officers,” the report found, seem to view Ferguson’s residents “less as constituents to be protected than as potential offenders and sources of revenue.”

Second, the Ferguson Police Department has developed an adversarial culture that routinely trumps the restraints imposed by the Constitution. “Officers expect and demand compliance even when they lack legal authority.” As symbols of authority so often do, Ferguson police apparently confuse disagreement with disobedience, and mistake a legitimate exercise of constitutional rights with an unpardonable display of disrespect.

The report implies that the second condition follows from the first, but in this regard it is mistaken. The fact that the police are misused as revenue agents need not make them hostile to the community they ostensibly serve. One can imagine, in other words, an officer handing yet another ticket to a Ferguson resident for some trivial or non-existent offense with an apology instead of a snarl.

The problem of an adversarial police culture—in which the police view themselves as operating in hostile territory and treat the community as the dangerous enemy—has been recognized for decades. It was immortalized in the movie, Ft. Apache, the Bronx, and helps account for the too-quick decision to acquire and deploy the latest and most advanced weapons of war on neighborhood streets. I hope to address this problem in future columns, since it is almost impossible to imagine meaningful reform of the criminal justice system so long as it persists.

But today, I want to address the first problem identified by DOJ—viz., the distorting influence of money. More than anything, the DOJ report confirms the familiar insight that financial incentives can have a profound, if not always dispositive, influence on behavior. Implicit in this insight, and similarly confirmed by the lesson of common experience, is that if you alter the incentives, you can influence the behavior.

Ironically, this was a key insight in the earliest years of the punitive turn in American life. In 1975, conservative political scientist James Q. Wilson published, Thinking About Crime, where he argued that offenders were fundamentally rational actors who assessed the relevant incentives and chose crime because the anticipated balance of risk and reward favored lawlessness. Change the balance and you will alter the behavior, or so he thought. His work was exceptionally important in advancing the view that punishment should be far more swift, certain, and severe, a view which many legislators and criminal justice policymakers quickly endorsed.

Tinkering with incentives is also an essential component of the neoliberal approach to crime control, which relies on, among other things, the management and control of physical space to corral and redirect would-be offenders. Have you ever noticed that newer park benches use metal armrests to divide the bench into two or three distinct seats? That’s not for comfort. It prevents the bench from being used as a bed, and therefore deters the homeless from mixing with the good people of the city.

To date, proposals to redirect the flow of money have not played a prominent part in the discussion of criminal justice reform, which has focused instead on statutory changes, mostly at the state level. But there is some evidence this may be changing. Recently, the MacArthur Foundation announced a $75 million grant to develop programs aimed at reducing jail populations. Last week I spoke with Nancy Fishman, the Project Director of the Center on Sentencing and Corrections at the VERA Institute, a major player in criminal justice reform and one of four groups charged with administering the MacArthur grant.

As Fishman explained, the idea of the grant is to create incentives for municipalities to think systemically about how to eliminate what has become a reflexive over-reliance on jail. Over the past two decades, violent crime has fallen by nearly 50 percent and property crime by 44 percent. Yet annual admissions to jails in the United States have almost doubled, from six million to nearly 12 million. The great majority of these people, perhaps as many as three-quarters, are held for nonviolent traffic, property, drug, or public order offenses. Many are mentally ill or have alcohol or drug dependencies but are warehoused in jail for want of alternatives. Finally, to compound the crisis, pretrial detainees are held far longer than in the past: over the past three decades, the average stay has increased from 14 to 23 days. (VERA’s report is available here).

MacArthur, VERA, and its partners hope to identify and fund creative proposals from municipalities that will reward alternative strategies. Backed by MacArthur’s resources and tied to VERA’s technical expertise, these alternatives will—one hopes—change the incentives in a way that encourages police, sheriffs, prosecutors, judges, and legislators to think of jail as the last resort rather than the first. This, after all, is the intended purpose of pretrial detention, which should be limited to those very few who cannot safely be returned to the community. All evidence shows that jails long ago took on a far different role.

One lesson of the DOJ report is that if you reward municipalities to think and behave differently, they will. If cash-strapped cities are paid to reserve jail for the appropriate population, they will, and the message will gradually spread from the mayor in city hall to the cop on the street, and all the actors in between. Prosecutors will learn not to seek pretrial detention for those who should be diverted elsewhere, judges will no longer impose bail that sounds reasonable to a middle class sensibility but is far beyond the reach of a poor man or woman, and legislators will think twice before creating yet another category of crime that calls for presumptive pretrial detention.

No one remotely thinks that the MacArthur grant will solve the problem of distorted incentives and misallocated money in the criminal justice system. After all, $75 million is almost literally nothing compared to the tens of billions of dollars awarded by the federal government to states and local municipalities across the country over the past 50 years to shape and expand their criminal justice system. But all of this money represents an extraordinarily powerful resource, if only it can be harnessed in the service of a new vision of criminal justice. Ferguson points the way, and MacArthur is taking the first step.


Je Suis Charlie Hebdo

February 16, 2015
Je Suis Charlie Hebdo
by Ronald D. Rotunda

IMG_2597

Censored SpeechFree speech is under renewed attack after the Charlie Hebdo murders that claimed 12 lives earlier this year. Around the world, some Muslims protested—not to defend the right of free speech but to attack those who, in their view, insulted Islam. For example, in late January, protestors killed five people and set fire to eight Christian Churches in Niger. French President Francois Hollande responded that France was committed to “freedom of expression,” and that commitment is “non-negotiable.”

A month before the Charlie Hebdo violence, a French appellate court overturned the conviction of Christine Tasin, a retired schoolteacher of Classics. In 2013, she had publicly criticized Islam’s Eid-ul-Adha (“Festival of the Sacrifice”), as unsanitary and cruel to animals. The trial court sentenced her to a €3,000 fine (half of which it suspended) and a three month prison sentence, also suspended. Earlier, a Muslim man threatened her with death. The court fined that man only €800. The judge apparently decided that objecting to cruelty to animals is five times more offensive than threatening a retired schoolteacher with death.

Tasin rejoiced in the overturning of her conviction. “Last Thursday was a great day for freedom of expression in France,” she said. She added:

The [appeal] court in Besançon has now acknowledged that one has the right to express opinions and I did not encourage hatred against Muslims, and I can think and say that Islam is a threat to France, that it is a freedom of expression. [Those who] fear that freedom of expression is disappearing, and that blasphemy has become a crime again are relieved. Yes, I am an Islamophobe, so what? It’s Normal! . . . I don’t find it normal to torture animals; I don’t find it normal to veil women. I’m talking about a serious problem.

Others take away a different lesson and encourage self-censorship—be careful what you say. On January 21, Stevie Wonder advised, “we should make laws against people criticizing religion,” a most in-apropos comment (it was part of his eulogy of André Crouch). In 2012, the President’s Press Secretary, Jay Carney, in the course of a press conference, said, “We are aware that a French magazine [referring to Charlie Hebdo] published cartoons featuring a figure resembling the prophet Muhammad, and obviously we have questions about the judgment of publishing something like this.”

After the 2015 murders of the Charlie Hebdo staff, Carney reaffirmed his view that Charlie Hebdo should have pulled back with its satire. Carney, of course, made clear that he did not justify violence. Yet, as Washington Post columnist Charles Lane advised, “mixed messages unavoidably implied that the rioters had a valid point, which is never something you want to imply—at least not if you understand how dangerous it is to give violent extremists a veto over what your citizens can and cannot say.”

Carney’s successor as White House Press Secretary, Josh Earnest, speaking shortly after the Charlie Hebdo attack, embraced that mixed message. The violence is terrible, of course, yet, when a reporter asked Josh Earnest, “Does the White House stand by that questioning [in 2012] of the judgment of the publication of that cartoon in light of recent events?”—Earnest’s response was yes, after long, convoluted remarks. He reaffirmed that Charlie Hebdo exercised poor judgment; however, satire “could put Americans abroad at risk,” so the President “will not now be shy about expressing a view or taking the steps that are necessary to try to advocate for the safety and security of our men and women in uniform.”

This response appeared to be a non sequitur so the reporter said that protecting “American service personnel is different than criticizing or raising questions about the judgment underlying any satirical expression, be it to mock Islam or Christianity or Judaism, or anything else.” Consequently, the reporter asked, “Where do you draw the line?” Earnest’s answer, “I think it depends on the scenario.” What does that mean? Don’t mock Islam but Episcopalians are fair game?

It is difficult for you to support free speech if you simultaneously express reservations about what the speaker is saying and then warn that you will “not now be shy” about “taking steps” to discourage the speaker from speaking because that is exercising “poor judgment.”

Jonathan Chait, a commentator for New York Magazine and former senior editor at the New Republic, saw right through this decidedly ambiguous message. What the White House Press Secretary is saying, Chait says, is, “They do not believe religious extremists should be able to impose censorship by issuing threats, but given the existence of those threats, the rest of us should have the good sense not to risk triggering them.” That is not a defense of free speech but rather a call for self-censorship:

“The line separating these two positions is perilously thin. . . . The right to blaspheme religion is one of the most elemental exercises of political liberalism. One cannot defend the right without defending the practice.”

The Washington Post republished the Charlie Hebdo cartoon cover circulated after the attack, but the New York Times did not, noting, “most Muslims consider any depiction of their prophet to be blasphemous.” That certainly appears like self-censorship. (It also shows that the editor of that article does not travel much, at least not to Istanbul, where one could tour the famous Topkapi Palace Museum, which displays many images of Mohammed. That’s another problem with self-censorship; it leads to over-self-censorship, if you are scared enough.)

In December 2004, I gave a speech at the University in Nijmegen, The Netherlands about America and the Gulf War. A month earlier, a 26-year-old Dutch-born Muslim murdered Theo van Gogh, while cycling to work. My speech was public and a Muslim woman spoke up in the back of the room before I began. She was accompanied by several large men and videotaping equipment. She wanted to videotape my speech. I asked the audience if they objected and they did. The audience was obviously scared and I asked her if she had any reaction to that. She refused to speak.

I told her that the audience was scared of her because of the murder of Theo van Gogh and that ought to concern her. She just stared at me in utter silence. I said she could condemn the murder of Theo van Gogh; that might make the audience less frightened. Again, nothing. I finally told her that she could videotape me but the camera must focus only on me. She could not make any record of anyone in the audience. She agreed, and the audience felt better. Then I began my speech by saying that it is important that we not be afraid to speak. After I finished the presentation and answered questions, she and her entourage left. At that moment, I did not need the White House Press Secretary to tell me to exercise “better judgment,” i.e., self-censorship.

Each generation must learn and relearn the lessons of free speech. Those who say we can speak, but should not be rude or offensive do not understand that inoffensive speech has no need of protection. The White House Press Secretary should not be telling us to censor ourselves; he should be telling the world that the cure for speech we do not like is more speech, contrary speech, not violence or self-censorship. If you disagree, respond with words, not force.

Those who worry about inciting those Muslims who preach and act out hate think that appeasement will stop the terrorist attacks. Sadly, appeasement in the past has been about as effective as throwing some blood in the water to appease sharks.
Listen to an Egyptian cleric, Muhammad Hussein Yaqub, speaking in 2009, on Egyptian Television. He told his viewers:

If the Jews left Palestine to us, would we start loving them? Of course not. We will never love them…They are enemies not because they occupied Palestine. They would have been enemies even if they did not occupy a thing…You must believe that we will fight, defeat and annihilate them until not a single Jew remains on the face of the earth.

The Quran tells us that if God had wanted one community, He would have made one community. Instead, we are many communities so that we can compete with each other in good works (Quran verse 5:480). The murderers of Charlie Hebdo worry about sacrilege, but they are the ones who are sacrilegious, because they actually think that Almighty God needs those puny men to effectuate His will.

SCOTUS Rules Cops DO NOT Need A Warrant To Search Your Home

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In another devastating blow to freedom, the Supreme Court ruled Tuesday that police don’t need a warrant to search your property. As long as two occupants disagree about allowing officers to enter, and the resident who refuses access is then arrested, police may enter the residence.

“Instead of adhering to the warrant requirement,” Ginsburg wrote, “today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.” Tuesday’s ruling, she added, “shrinks to petite size our holding in Georgia v. Randolph.”

Georgia v. Randolph was a similar case the Supreme Court addressed in 2006, in which a domestic violence suspect would not allow police to enter his home, though his wife did offer police consent. The police ultimately entered the home. The Court ruled in the case that the man’s refusal while being present in the home should have kept authorities from entering.

“A physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant,” the majority ruled in that case.

The majority, led by Justice Samuel A. Alito Jr., said police need not take the time to get a magistrate’s approval before entering a home in such cases. But dissenters, led by Justice Ruth Bader Ginsburg, warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the “very core” of the 4th Amendment and its ban on unreasonable searches and seizures, reports the LA Times.

According to the AP, Justice Samuel Alito wrote the court’s 6-3 decision holding that an occupant may not object to a search when he is not at home.

“We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Alito said.

Read more at http://thefreethoughtproject.com/supr…