Nel's New Day

August 9, 2017

Washington Subway Bans Constitution

Should a government entity be required to obey the U.S. Constitution? That’s the question raised by the ACLU after the tax-supported Washington Metropolitan Area Transit Authority (WMATA) refused its paid ad that quoted the First Amendment. WMATA claims that it restricts “controversial” advertising and turned down ads from Carafem, a healthcare network that provides access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC, the corporate entity of provocateur Milo Yiannopoulos.

To communicate support for Muslims (freedom of religion) and the media (freedom of the press), ACLU put up ads in Arabic, English, and Spanish that simply cited the First Amendment.

WMATA refused the ACLU because of its policy forbidding advertisements “intended to influence members of the public regarding an issue on which there are varying opinions” or “intended to influence public policy.” The tax-aid transit accepts beer (no problem with alcoholism), mink coats, Coke-or-Pepsi jokes, etc.—no “varying opinions” there. The PETA ad showed a pig with the text, “I’m ME, Not MEAT. See the individual. Go Vegan.” WMATA has several ads asking their riders to eat animal-based food, wear clothing from animals parts, and attend circus performances. It did suggest that they might run the PETA ad with the removal of “Go Vegan.” To ACLU, WMATA stated, “You’ll have to dramatically change your creative.”

Ads for Milo Worldwide LLC were initially accepted. The author of Dangerous brands feminism a cancer, proposes that transgender people have psychological problems, and compares Black Lives activists to KKK. His ads showed Milo Yiannopoulos’ face, a suggestions that his new book be ordered, and one of four quotations from his reviews: “The most hated man on the Internet” (Nation); “The ultimate troll” (Fusion); “The Kanye West of Journalism” (Red Alert Politics); and “Internet Supervillain” (Out Magazine). In contrast to his writings and speeches, the ads didn’t appear to influence except for selling the book. The ads stayed for 10 days until WMATA got complaints.

These ads—including the First Amendment—were considered “controversial,” but those from gambling casinos, military contractors, and internet sex apps weren’t. PETA was rejected, but a restaurant dish “PORKADISE FOUND” was advertised. The same for a rejection of Yiannopoulos’ book while advertising movie ads of four women drooling over a male stripper.

ACLU’s lawsuit requests that the court declare parts of WMATA’s advertising guidelines unconstitutional because they violate free speech rights and are unconstitutionally vague. Although disagreeing with Yiannopoulos’ viewpoints, the organization also filed a motion on behalf of Milo Worldwide LLC for restitution of loss of revenue by the wrongful removal of advertisements for his book.

Arthur Spitzer, the legal director for the ACLU in Washington, stated:

 “The First Amendment protects the speech of everyone from discriminatory government censorship, whether you agree with the message or not.

For the better part of a century, the Supreme Court has wobbled back and forth on the exemption of “commercial speech” from the First Amendment. But to prevent the First Amendment as an advertisement? This is not freedom of speech!

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February 19, 2017

The Struggle to Regain Free Speech

The biggest shock I received from the news during the past few days did not come from Dictator Donald Trump (DDT). It was the ruling from the 11th Circuit Court of Appeals that struck down a Florida law restricting doctors’ First Amendment free speech rights when talking to patients about guns. In a 10-1 vote, the court overturned laws preventing doctors from asking patients questions about guns in their home, putting any “non-relevant” information about gun ownership in a medical record, and “unnecessarily harassing a patient about firearm ownership during an examination.” The law still prohibits discrimination against patients who don’t answer the doctors’ questions.

The ruling sends a message that government does not have the ability to prevent unpopular speech, a vital decision because government increasingly suppresses language. Although the court covers only two states other than Florida—Alabama and Georgia—it establishes a precedent for other courts and could affect the nation if the case moves to the Supreme Court to a supportive First Amendment ruling.

Throughout history governments have tried to control doctors’ free speech. Chinese doctors were sent to rural areas during the Cultural Revolution to convince patients to use contraception, and the Soviet government ordered physicians during the building of the Siberian railroad in the 1930s to deny medical leave requests and keep the order from patients. Nazi Germany taught doctors that their higher duty was to the “health of the Volk” over their individual patients while many of them performed horrifying surgical experiments on humans. Romanian dictator Nicolae Ceausescu’s plan to increase the nation’s birth rate stopped doctors’ advising patients about birth control and providing information about prevention of the transmission of AIDS and HIV infections by the use of condoms.

Legislators in 38 of the United States order doctors and women’s clinics what to tell women requesting abortions, some of this information inaccurate and misleading. These doctors must tell women about a non-existent link between abortion and an increased risk of breast cancer, suicide, or future infertility. In 28 states, informed consent forms and brochures in clinics must provide legislative-chosen information about alternatives to abortion, the risks associated with abortion, and fetal development stages.

Some states require non-scientific and non-medical language for doctors’ counseling, mandatory brochures, and informed consent forms such as referring to embryos as “unborn children,” insisting that life begins at conception, lying that a fetus feels pain at 20 weeks, and stating that abortion at any stage terminates the life of a separate, living being. Twenty-eight states require that women wait between 24 and 72 hours between their visits to doctors and the procedure in reflect on her decision—and an attempt to humiliate her.

Government uses religious values in their lies to prevent abortions. There is no link between abortion and breast cancer according to the National Cancer Institute, the American Cancer Society, and the American College of Obstetricians and Gynecologist. There is no “post-abortion syndrome,” according to the American Psychological Association (APA) or the American Psychiatric Association. The APA found that “there is no credible evidence that a single elective abortion of an unwanted pregnancy in and of itself causes mental health problems for adult women,” noting most studies that claim otherwise “suffered from serious methodological problems.” There is no link between abortion and infertility. And fetuses cannot feel pain until 24 weeks at the earliest.

This article gives a list of states with their laws as of August 2016. Since then, one more state is mandating that doctors lie to patients about the non-existent link between abortion and the occurrence of breast cancer.

The new president added fuel to the abortion controversy at the last presidential debate when he declared that doctors do abortions in the “ninth month” of pregnancy. In his false bombastic rhetoric, DDT said that “you can take the baby and rip the baby out of the womb in the ninth month, on the final day.” This is called a Cesarean  or C-section, and it doesn’t kill the baby.

Religious–or pandering—lawmakers with the goal to prevent all abortions fail to recognize only 1.3 percent of abortions happen at or after 21 weeks and 91 percent of them happen before 13 weeks. The ones that occur late in the pregnancy almost always are required by dead or seriously deformed fetuses. With the religious fervor to keep all fetuses coming out of the uteruses at full term, the House voted last Thursday, 230-188, to overturn an Obama-era rule banning states from denying federal funds to Planned Parenthood and other health care providers that perform abortions. Thirteen states can return to their non-support for Planned Parenthood. A repeal of the Affordable Care Act would remove money from caring for the severely mentally and physically disabled children resulting from the lack of abortions.

Religion was the reason behind DDT’s removal of U.S. funding from any overseas organization that mentions abortion. The money doesn’t go toward abortions: the Mexico City Policy is simply a suppression of free speech. When George W Bush reimposed the global gag rule, he erased shipments of contraceptives to 16 countries in sub-Saharan Africa, Asia, and the Middle East. The elimination of these shipments cut off condoms for Lesotho Planned Parenthood, the only available place in a country where one in four women were infected with HIV. Like George W., DDT will create more unwanted pregnancies and more cases of HIV.

ddt-signs-mexico-act

The above photograph of DDT signing an act that affects millions of women shows that limiting women’s reproductive rights is largely a “guy thing.”

The worship of DDT is creating threats to democracy. In attempts to avoid protesters, over two-thirds of the congressional Republicans refuse to have town halls during the current recess. DDT’s tweet explains the lies that they are spreading:

“Professional anarchists, thugs and paid protesters are proving the point of the millions of people who voted to MAKE AMERICA GREAT AGAIN!”

GOP legislatures in at least ten states are introducing bills to stop dissent permitted by the First Amendment, that gives the “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”:

  • Colorado: Greatly increase penalties for environmental protesters up to felonies resulting in prison and fines up to $100,000.
  • Indiana: Publish officials could immediately dispatch “all available law enforcement” to clear a traffic blockade involving at least 10 people “by any means necessary.” People have nicknamed the bill “block traffic and you die.”
  • Iowa: Creates penalty of five years in prison for traffic disruptions.
  • Michigan: Boost anti-picketing penalties, especially for union members who try to boycott a business’s profits.
  • Minnesota: Penalties for blocking traffic.
  • Missouri: Prohibit demonstrators from wearing masks or robes. (Does that count the Ku Klux Klan?)
  • North Carolina: Imprison people who intimidate ex-officials because a group followed former Gov. Pat McCrory (king of the “potty police” law) and chanting “Shame!” His discriminatory law cost the state millions of dollars and hundreds of jobs.
  • North Dakota: Criminalize road protests, restrict wearing apparel, and allow government to sue for enforcement costs. An additional proposal would exempt drivers from liability if they injure or kill a pedestrian obstructing traffic on a public road.
  • Virginia: Imprison people engaged in an “unlawful assembly” after “having been lawfully warned to disperse.”
  • Washington: Classify as “economic terrorism” any permit-less protest that causes harm to the flow of commerce.

DDT has his phone back and is angrily tweeting his “war on the press.” His latest salvo is declaring the media as the “enemy of the people.” Beginning with The New York Times, CNN and NBC News, he quickly added ABC and CBS. That’s a major U.S. newspaper and all three mainstream television channels. DDT is patterning his actions on ancient Rome and later Russia’s communist revolution a century ago which was followed by massive purges ordered by Soviet dictator Josef Stalin.

DDT rants included a quote from Thomas Jefferson about his hate for the press. The press quoted DDT but failed to show how DDT’s message was out of context.  The Founding Father also said,“Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

We can only hope that the 11th Circuit Court took the first step toward reinstating free speech and free press in the United States as guaranteed by the First Amendment of the U.S. Constitution.

“Indifference about the distinction between truth and lies is the precondition of fascism. When truth perishes so does freedom.”—Simon Shama, British historian

January 28, 2015

Fix the Supreme Court’s Constitution

Conservative justices serving on the Supreme Court try to make people believe that every ruling that they make follows the U.S. Constitution literally—just as fundamentalist Christian leaders swear that every word out of their mouths came from their bible. Both conservative elements are wrong, however, and retired Justice John Paul Stevens has written a book suggesting how the constitution can be brought back into its original text. Six Amendments: How and Why We Should Change the Constitution presents these recommendations with an explanation of the problem and the history to the issues.

Following is a summary of these amendments, thanks to a posting on Daily Kos.

The “Anti-Commandeering” Rule: A 1997 5-4 ruling bans Congress from ordering state officials to carry out federal duties because two county sheriffs didn’t want to carry out Brady Act-mandated background checks for firearm sales. Now people prone to violence, such as the Virginia Tech mass shooter in 2007, can easily get guns. The ruling also affects other federal laws such as emergency responses to national catastrophes and acts of terror.

Suggested amendment adding the four words in boldface to the Constitution’s Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges and other public officials in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Political Gerrymandering: The practice of gerrymandering, loading districts with people registered in one political party, makes politicians more radical and elections less competitive, according to Stevens. A 1986 Supreme Court ruling eliminated most challenges to state legislatures controlling elections of U.S. House members: “[A] finding of unconstitutionality must [show] continued frustration of the will of a majority of the voters or effective denial to a minority of the voters of a fair chance to influence the political process.” Stevens believes that public power should not be allowed to enhance “the political strength of the majority party.”

Suggested amendment: “Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.”

Campaign Finance: Congress passed a law 108 years ago that banned all corporate contributions to political candidates; this federal law was followed by many states passing total bans of corporate activity to influence public policy. The laws were slowly reversed, culminating in the 2010 Supreme Court disaster that gave corporations the unlimited right to finance campaign speech. Feeling that they had not gone far enough, the same five justices struck down any limit on total donations a person could make to candidates four years later, giving rich persons the right to spend millions in a single election. Three “sulky Supremes”—Justices Alito, Scalia, and Thomas—annually boycott President Obama’s State of the Union speech because he disagrees with their ruling. Thanks to the Supreme Court, the two Koch brothers plan to spend almost $1 billion in the 2016 election—more than the GOP—to control the results. Stevens purports that the problem can be solved by an amendment stating that corporations are not persons and money is not speech.

Suggested amendment: “Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

Sovereign Immunity: Citizens of one state are banned from suing another state in federal court, according to the 11th Amendment. This legal doctrine of “sovereign immunity” originated in 1400 when the king didn’t want to be sued without his consent. It shields the “sovereign,” any of the individual states, from court action by putting it above the law. Stevens disagrees and gives the argument against this amendment from Chief Justice Oliver Wendell Holmes: “It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.” Chief Justice William Rehnquist began a spate of rulings that extended sovereign immunity and weakened state compliance with national law. For example, Illinois avoided paying damages for non-compliance with a federal law for aiding aged, blind and disabled persons in 1974, and 15 years later the Rehnquist Court used this unwritten state sovereignty rule to keep Congress from authorizing the suing of a state of violating the Fair Labor Standards Act. In this case, Maine successfully refused to pay probation workers overtime. According to Stevens, state-owned institutions such as hospitals or police forces should not have a defense to federal claims that private institutions lack.

Suggested amendment: “Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.”

The Death Penalty: Arguments for the death penalty such as deterrence of crime are invalid, and DNA technology shows that many convicted murders, some already put to death, are innocent of the crime. Supreme Court rulings, including upholding a judge’s jury instruction to choose death when the evidence for and against it is balanced, made the death penalty more likely.

Suggested amendment adding the five words in boldface to the 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Gun Control: No amendment has been more debated in the past few years than the 2nd Amendment. For over two hundred years, federal judges ruled two limitations of this amendment: it applies only for military purposes; and while it limits the power of the federal government, it does not limit the power of state or local governments to regulate ownership or use of firearms. Twice, however, the Roberts Court ruled against governments trying to control gun violence. One was creating a new constitutional right for a resident in Washington, D.C. to keep a handgun in the home, and the other extended this newly-created constitutional right to states.

Suggested amendment returning the 2nd Amendment to its original meaning and the power of regulating firearms to state and local governments with the five words in boldface: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia, shall not be infringed.” 

In an interview with NPR, Stevens said:

“I think in time that what I have to say about each of these six issues will be accepted as being consistent with what the framers really intended in the first place. I think in time, reason will prevail.”

We can only hope. 

Referenced Supreme Court Cases:

  • Printz v. United States: 1997. 5-4 ruling. Bans Congress from ordering state officials to carry out federal duties. Holding: Scalia, Rehnquist, O’Connor, Kennedy, Thomas; Dissenting: Stevens, Souter, Ginsburg, Bryer.
  • Davis v. Bandemer: 1986. 7-2 ruling. Adopts a lofty and cloudy standard for unconstitutional gerrymandering. Holding: White, Brennan, Marshall, Blackmun, Burger, O’Connor, Rehnquist; Dissenting: Powell, Stevens.
  • Citizens United v. FEC: 2010. 5-4 ruling. Gives corporations the unlimited right to finance campaign speech. Holding: Kennedy, Roberts, Alito, Scalia, Thomas; Dissenting: Stevens, Ginsburg, Breyer, Sotomayor.
  • McCutcheon v. FEC: 2014. 5-4 ruling. Gives individuals the right to spend millions in a single election. Holding: Roberts, Scalia, Kennedy, Alito, Thomas; Dissenting: Breyer, Ginsburg, Sotomayor, Kagan.
  • Edelman v. Jordan: 1974. 5-4 ruling. Lets Illinois avoid paying damages for past non-compliance with a federal law for aiding aged, blind and disabled persons. Holding: Rehnquist, Burger, Stewart, White, Powell; Dissenting: Douglas, Brennan, Marshall, Blackmun.
  • Alden v. Maine: 1999. 5-4 ruling. Cites an unwritten state sovereignty rule imagined to be in the “plan of the [Constitutional] Convention” and forbids Congress to authorize suing a state for violations of Fair Labor Standards Act. Holding: Kennedy, Rehnquist, O’Connor, Scalia, Thomas; Dissenting: Souter, Stevens, Ginsburg, Breyer.
  • Baze v. Rees: 2008. 7-2 ruling. Holds that Kentucky’s three-drug death penalty system is not “cruel and unusual.” Holding: Roberts, Kennedy, Alito, Breyer, Thomas, Scalia, Stevens; Dissenting: Ginsburg, Souter.
  • Kansas v. Marsh: 2006. 5-4 ruling. Allows a judge’s jury instruction to choose the death penalty when aggravating and mitigating evidence were equal in weight. Holding: Thomas, Roberts, Scalia, Kennedy, Alito; Dissenting: Stevens, Souter, Ginsburg, Breyer.
  • United States v. Miller: 1939. 8-0 ruling. Holds that Congress can ban possession of a sawed-off shotgun because that weapon has no reasonable relation to “a well regulated Militia.” Holding: McReynolds wrote unanimous opinion; Not Involved: William O. Douglas.
  • District of Columbia v. Heller: 2008. 5-4 ruling. Overturns a Washington, D.C., law and creates a new Constitutional right for a civilian in D.C. to keep an enabled handgun at home for self-defense. Holding: Scalia, Roberts, Kennedy, Thomas, Alito; Dissenting: Stevens, Souter, Ginsburg, Breyer.
  • McDonald v. Chicago: 2010. 5-4 ruling. Overturns a Chicago handgun ban and extends the Court’s newly-created Constitutional right for a civilian to keep a handgun to the states. Holding: Alito, Roberts, Scalia, Kennedy, Thomas; Dissenting: Breyer, Ginsburg, Sotomayor, Stevens.

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