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Posts Tagged ‘first amendment’

The American Civil Liberties Asoociation has, over the years, done a lot of commendable work in defence of freedom. Particularly praiseworthy is its consistent defence of the First Amendment. It has frequently extended legal help to protect those whose free speech rights have been threatened. It has fought for the separation of the church and the state and argued for the  decriminalization of drugs. For all that, it deserves our plaudits.

Unfortunately, the ACLU has been firmly opposed to other, equally fundamental, areas of freedom. It’s legal apparatus has ben used to file anti-discrimination claims against private clubs. The ACLU does not seem to recognize the fact that the so called ‘positive rights’ that it champions — for instance the ‘right’ of this woman to gain admittance into a social club — come only at the expense of the liberty of purely private organizations to operate in any way they wish. It is ironic that an organization that believes people should be allowed to say whatever they want does not believe that people should have the freedom to associate with whoever they want.

The ACLU has over 500,000 members and it has been influential in the evolution of constitutional law. Unfortunately, despite its name, it is not a libertarian organization and its influence has quite occasionally been used to curtail individual liberty. That is a sad truth. 

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Remember Karen Fletcher? The woman in the centre of the high-profile obscenity case I wrote about earlier? The reclusive lady who wrote violent sexual stories involving children in an attempt to cope with her own history of child abuse and was subsequently hounded by federal prosecuters? Well, the matter’s come to an end.

She battled the federal government’s allegations for more than a year and a half, but in the end, Karen Fletcher’s mental health will win out over her principles. And First Amendment lawyers will lose a key chance to have a court determine whether text-only material can be considered obscene.

Ms. Fletcher has decided to plead guilty to six counts of distributing obscenity online stemming from fictional stories published on a members-only Web site.

First Amendment lawyers thought an acquittal in the case could have begun a trend — proving that text-only cases do not rise to the level of obscenity standards.

The Donora woman was charged in September 2006 based on her “Red Rose” Web site, where Ms. Fletcher, 56, and others posted fictional stories that depicted the rape and torture of children — including infants.

She and her high-profile First Amendment lawyers claimed that what she’d written was not obscene, and they hoped to prevail before a jury.

In their favor, they thought, was the fact that the federal government has never won a conviction based solely on text under current obscenity law.

But Ms. Fletcher, who has agoraphobia — a fear of public places — is not capable of sitting through what likely would be a weeklong trial, said one of her attorneys, Lawrence Walters.

“With a different client, with somebody who had the strength to fight, there might have been a different outcome,” Mr. Walters said. “While we’d like her to be a standard-bearer on First Amendment issues, this is not the person to endure a trial.

“Even worse, should she be convicted, I don’t know that she’d be able to withstand a jail sentence.”

Under the proposed plea agreement, Ms. Fletcher would avoid prison and be sentenced to a term of home detention.

When I wrote about this matter several months ago, I noted that this case would a key test for the greatest American law of all — the first amendment. I ended that post with the words:

It is possible that Karen Fletcher will not be convicted. If she is, God save us all.

I don’t blame Karen Fletcher for the decision she has taken. A trial is a painful affair and I cannot even imagine how traumatic it may be to some one who suffers from agoraphobia, as Fletcher does. Nevertheless, today feels like an anti-climax. A defeat would have been catastrophic, signalling the slow destruction of something precious and irreplaceable; a victory would have reaffirmed the protection enjoyed by free speech in this country. This, being neither, leaves things in the balance, for another day, another case, another hero.

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posted earlier about the Elane Photography case. The New Mexico Human Rights commission issued its opinion today, holding Elane Photography guilty of discrimination. As Eugene Volokh discusses here, the breadth of the decision is astounding and ostensibly covers other businesses of a similar nature. For instance, freelance writers — by the same logic employed by the commission — can be compelled to write things contrary to their religious beliefs.

As this case makes clear, the attack on freedom of speech from anti-discrimination laws is current and real. And it is getting worse.

(Link via The Volokh Conspiracy)

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Eugene Volokh writes about a hypothetical scenario involving a mixed-race couple in the photography incident:

The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can’t be legally barred from choosing their subjects based on race, that’s just an implication of the basic First Amendment principle of the speaker’s right to choose what to say.

There should be nothing particularly daring about this position.

Needless to say, I agree. And my position will remain the same if I am discriminated against by someone in the US because I am an Indian.

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In America, you have freedom of expression and freedom of association, except when you don’t. Since the passage of the Civil Rights Act, one does not really have the right to decide who one hires, or rents out one’s apartment to, allows inside one’s restaurant, or does business with. If you refuse to deal with someone commercially because of their race, sex, age, sexual orientation or other protected characteristic, the government will punish you.

Yet the Civil Rights Act, in its original form, did allow significant exceptions for activities of a private or expressive nature. Much of that is no longer true. Courts are interpreting the provisions of anti-discrimination laws in ever broader terms. One no longer, for instance, has the right to decide who one lives with.  And now, it appears that one cannot even choose what one photographs. 

Elane Huguenin refused to photograph a client’s same-sex commitment ceremonies, and the New Mexico Human Rights Commission decided that this violated state antidiscrimination law. Elane has to pay over $6000 in attorney costs.

Eugene Volokh has a series of excellent posts regarding this particular incident, which I highly recommend. He argues that since photography is an art, this judgement violates the first amendment. I agree. However, even if that were not the case, I think there is no rationale for an anti-discrimination law that forces someone to offer their service to others — especially when the act of discrimination does not significant restrict the client’s ability to obtain that service (I am sure there were many other photographers who would have been willing to do the job for this particular client).

Ultimately, all these laws boil down to an intent to strip individuals of their right to make ‘immoral’ choices and use the power of the state to force this; and that, in my view is the ultimate immorality.

(Hat tip to The Volokh Conspiracy, where I saw this story)

Previous posts in this blog on anti-discrimination law:

Anti-discrimination laws and freedom

The need to defend the rights of bigots

 

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Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book called “Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan” during his work breaks. Apparently, the mere presence of the word Ku Klux Klan offended a co-worker, despite the fact that the book is in fact about opposition to the Klan. The school’s Affirmative Action Office agreed. In a letter to Sampson, they accused him of “disdain and insensitivity” and ordered him to stop reading that book in the presence of co-workers.

Sigh… 

Update: The affirmative action office has (following the uproar?) issued a new letter to Sampson, effectively canceling its previous order and making a complete retreat from its earlier position.  

Further Update.

— 

Also read:
Don’t Glock in school.
Did you use the word?

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A hundred years ago, you could be arrested if your drawing, writing or other form of creative expression was considered obscene by the authorities. Artistic freedom was not as important as preserving public morality. And the idea that a century on, pornography could be displayed and sold in perfectly legal shops was unthinkable.

For good or bad, those times are far behind us. One of the greatest jewels of the United States is her First Amendment, a piece of law enshrined in her constitution and systematically strengthened by the courts through the last century – that guarantees the freedom of expression for all. In modern day USA you can depict anything and not worry about the moral police coming after you. Of course you can still be charged if your work is libelous or directly incites violence or violates someone else’s rights. But other than that, the idea that someone can be put in jail simply for expressing distasteful thoughts or fantasies is preposterous. This is a free country, right?

Wrong.

Karen Fletcher, a reclusive woman living in Pittsburgh, recently began posting short stories on the Internet that describe, in graphic detail, the sexual abuse of children – in order, she says, to cope with her own history of childhood abuse. The internet abounds in pornography, much of it visual. Fletcher’s stories had no illustrations, were obvious works of fantasy, and were not displayed publicly. The only way to read these stories was by paying a modest sum of ten dollars a month, so that – Fletcher says – she could she could keep the website running and also protect children (and unwilling adults) from accessing it. Yet those stories, read by about 29 paying subscribers, have made Fletcher one of the few people facing federal criminal charges for obscenity.

In many ways, Fletcher’s case is unusual. A obscenity charge is rare these days, and almost unheard of in situations where no one has been harmed in the making of the offending material. And a case like Fletcher’s, which involves only the written word, has not been successfully prosecuted in the last thirty five years in this country.

So if this case feels like a throwback to the dark ages, it indeed is. But it should not be viewed in isolation. Recent years have witnessed an increasing clamping down on civil liberties in the US, accompanied by the passage of the Patriot Act, draconian anti-discrimination laws, hate-crime laws and an atmosphere of extreme political correctness. This particular case seems to be an example of the Bush administration’s efforts to cater to the religious right and reinvigorate the Obscenity Act. It is a long, slippery slope. Once a certain level of freedom becomes unacceptable, the bar is lowered and the next act of censorship is not only easier but also more extreme. Intolerance begets greater intolerance and by the time you realise the value of what you have lost, it is too late. Once these freedoms are gone, the wheels of motion are much harder to turn in the opposite direction. Illiberality and offended sensibilities make for excellent political nourishment. Those of us from India will attest to that.

It is possible that Karen Fletcher will not be convicted. If she is, God save us all.

The case is now over, see update (5/21/08)


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