Mediaboss Marketing

Two members of the Sigma Alpha Epsilon fraternity at the University of Oklahoma have been expelled for their role in video that showed members singing a racist chant. (AP)

University of Oklahoma President David Boren has expelled two students for leading a racist chant. These students speech was indeed quite repugnant, but for reasons I discuss here, its protected by the First Amendment.

And heres one reason why. Consider the presidents statement to the students: You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others. Similar things could be said about a vast range of other speech.

Students talking to each other about a student group event about how Hamas has it right? (The Charter of Hamas, recall, expressly says, The Prophet, Allah bless him and grant him salvation, has said: The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree, (evidently a certain kind of tree) would not do that because it is one of the trees of the Jews. (related by al-Bukhari and Moslem).) Why, that could be labeled leading an anti-Semitic and exclusionary discussion that, once its publicized on campus, creates a hostile educational environment for Jews.

Black students talking to each other about how all whites are racist, and white cops and maybe other whites should get shot? Again, that could be labeled racist and exclusionary speech that, when publicized, can create a hostile educational environment for whites.

Students talking about what a horrible, oppressive religion Islam is, or Scientology is, or Catholicism is, or conservative Christianity is, and how no-one should associate with people who have such evil religious views? Could be called religiously bigoted and exclusionary discussion that, when publicized, can create a hostile educational environment for members of that group. To be sure, this hypothetical doesnt include discussion of violence but president Boren seems to think that even this isnt required for expulsion, so long as the speech is bigoted and exclusionary. And the rhetoric of hostile educational environment, when it has been used to try to restrict speech on campuses, has never been limited to speech that mentions violence.

Likewise, students talking about how they think homosexuality is evil, and that homosexuals shouldnt get equal treatment? Could be called bigotry based on sexual orientation and exclusionary statements that, when publicized, can create a hostile educational environment for gays. Students talking about how women are inferior to men, or men are inferior to women same thing.

And I take it that open membership in groups including off-campus groups that espouse actually or allegedly racist, religiously bigoted, antigay, sexist, etc. views would be covered as well. Surely a students membership in the KKK, if other students learn about it, will lead them to infer that the student is racist just as much (if not more than) the singing of a racist song would. Likewise, a students membership in a group that endorses the Hamas Charter, a religious organization that harshly criticizes homosexuality, an organization that believes whites are inferior or morally corrupt, and so on.

There is, as Ive mentioned before, no First Amendment exception for supposed hate speech. But if there is such an exception, there certainly is no First Amendment foundation for distinguishing speech that is actually or supposedly anti-black from speech that is anti-white, anti-Semitic, anti-Muslim, anti-Catholic, anti-women, or anti-men. If the University of Oklahoma presidents position is accepted as legally sound, then thered be no legal basis for protecting the other kinds of speech while expelling students for this sort of speech.

And what I call censorship envy will make it all the more likely that there will indeed be calls for expelling students who express those other views. Right now, for instance, Jewish students who have to deal with their classmates holding anti-Semitic views, and expressing them to each other, may rightly assume that such speech is protected by the First Amendment and the university cant expel the anti-Semites. But if it becomes accepted that a university can expel people who express racist views about blacks, why wouldnt many Jewish students call for expulsion of students who express (even just to each other) anti-Semitic views? Indeed, many students might think that they would be chumps for failing to demand such expulsion, after theyve been taught that such speech victimizes them by creating a hostile educational environment that can be remedied by expelling bigoted students. And thats just one example.

Excerpt from:
Volokh Conspiracy: What speech is going to justify expulsion next, if the OU / SAE expulsion is accepted as proper?

Milwaukee

In a decision that could have far-reaching implications, the 7th Circuit Court of Appeals ruled that the Milwaukee archdiocese can't rely on the free exercise of religion clause in the First Amendment or the Religious Freedom Restoration Act as protections against claims in its bankruptcy case.

The key question in the Milwaukee case of whether approximately $55 million placed in a trust for the care of cemeteries can be used to pay off the archdiocese's debts in bankruptcy was not answered in the decision. Mounting legal fees -- now at least $16 million but possibly as high as $20 million -- raise the question of whether much will be available to pay debts and compensate those who claim to have been sexually abused.

The appellate court decision issued late Monday is not a final decision. The court also found that U.S. District Judge Rudolph Randa, who ruled in the archdiocese's favor, should have stepped aside because of a conflict of interest. A new judge will have to be appointed to decide the issue of the trust fund based on the appellate findings that the First Amendment and Religious Freedom Restoration Act do not apply.

James Stang, a lawyer representing the claimants in the Milwaukee case, said a number of states have local laws similar to the federal Religious Freedom Restoration Act that allow some cases to be handled at the state level.

"In states that do not have these laws, bankruptcy is seen as a way of shielding assets from creditors," he said. "This decision means they can't hide under RFRA anymore."

Stang, who represents many claimants in bankruptcies involving dioceses or religious orders, said he will be in New York this week on a case involving the Christian Brothers who transferred a school in an attempt to minimize its assets.

"Does it happen often?" he asked. "Yeah, it does."

The Milwaukee archdiocese filed for bankruptcy in January 2011, just before lawsuits involving 17 survivors of sexual abuse were about to go to trial in state court. The Wisconsin Supreme Court had ruled that archdiocesan officials could be sued for fraud if they knowingly allowed abusers to continue in their ministries despite credible allegations having been made to the archdiocese. The state's high court had also ruled that insurance coverage did not have to pay if the archdiocese committed fraud.

When Milwaukee Archbishop Jerome Listecki authorized the Chapter 11 bankruptcy filing, he said the pending lawsuits forced the action. The backdrop for the case was a 2006 agreement by the archdiocese to pay $17 million -- about half from insurance coverage -- to 10 California victims of sexual abuse by priests who had been transferred there after abusing victims in Wisconsin.

Here is the original post:
Court: Milwaukee archdiocese can't use First Amendment to protect against claims in bankruptcy

Tuesday, March 10, 2015 | 10:48 a.m. CDT; updated 8:18 p.m. CDT, Tuesday, March 10, 2015

ST. LOUIS The U.S. Court of Appeals has ruled that the House of Worship Protection Act, which bans anyone from intentionally disturbing the order or solemnity of a house of worship through profane discourse, rude or indecent behavior, is a violation of the First Amendment.

The St. Louis Post-Dispatch reported that the St. Louis-based court ruled against the state law Monday after the American Civil Liberties Union of Missouri filed a lawsuit challenging the law in 2012.

The lawsuit was on behalf of various groups, including the Survivors Network of those Abused by Priests. The groups argued that the First Amendment protects their freedom to protest, pray and distribute literature outside places of worship.

Under the law, which took effect in 2012, anyone who violated the act is guilty of a misdemeanor and faces months of jail time. Third and subsequent charges are felonies.

When the lawsuit was filed, American Civil Liberties legal director Tony Rothert cited the severe sentences that were handed down to members of the Russian punk band Pussy Riot for their political protest inside a Russian Orthodox Church.

"In Missouri, Pussy Riot wouldn't have to set one foot inside a church to land in jail because the House of Worship Protection Act makes it a criminal act simply to protest on a sidewalk near a church," Rothert said.

The rest is here:
Missouri court rules worship act violates First Amendment

Andrew Breibart Defender of the First Amendment Award CPAC 2015
Phil Robertson wins Defender of the First Amendment Award.

By: The ACU

Read more:
Andrew Breibart Defender of the First Amendment Award CPAC 2015 - Video

Reading the First Amendment isnt easy. Consider the text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Neither the Words nor the History Helps Much

The words themselves arent much help. Reading the first word, Congress, literally would leave the president, the military, fifty governors, and your local cops free to ignore our most important set of constitutional protections. Reading the fourth and fifth words, no law, literally would wind up protecting horrible verbal assaults like threats, fraud, extortion, and blackmail. The three most important words in the First Amendmentthe freedom of the words that introduce, modify, and describe the crucial protections of speech, press, and assembly, simply cannot be read literally. The phrase the freedom of is a legal concept that has no intrinsic meaning. Someone must decide what should or should not be placed within the protective legal cocoon. Finally, the majestic abstractions in the First Amendment, like establishment of religion, free exercise thereof, peaceful assembly, and petition for a redress of grievances do not carry a single literal meaning. In the end, each of the abstractions protects only the behavior we think it should protect.

So much for the literal text.

History (or whats sometimes called originalism these days) is even worse as a firm guide to reading the First Amendment. The truth is that the First Amendment as we know it today didnt exist before Justice William Brennan Jr. and the rest of the Warren Court invented it in the 1960s. In fact, history turns out to be the worst place to look for a robust First Amendment. Thomas Jefferson thought free speech was a pretty good idea, but the ink wasnt dry on the First Amendment before President Adams locked up seventeen of the twenty newspaper editors who opposed his reelection in 1800. One of the jailed editors was Benjamin Franklins nephew Benjamin Franklin Bache. He died in jail. Despite the newly enacted First Amendment, not only did the federal courts remain silent in the face of Adamss massive exercise in government censorship; they often initiated the prosecutions. Matthew Lyon, Vermonts only Jeffersonian member of Congress, was jailed for four months and fined $1,000 for criticizing the president in his newspaper. Lyon had the last word, though. He was released just in time to cast Vermonts swing vote for Thomas Jefferson when the presidential election of 1800 was thrown into the House, helping to seal Adamss defeat.

The nineteenth and early twentieth centuries were free-speech disasters. Before the Civil War, antislavery newspapers were torched throughout the North. All criticism of slavery was banned in the South. Slaves were even forbidden to learn to read. During the Civil War, President Lincoln held opponents of the war in military custody for speaking out against it. After the Civil War, labor leaders went to jail in droves for picketing and striking for higher wages. Labor unions were treated as unlawful conspiracies. Radical opponents of World War I were sentenced to ten-year prison terms and eventually deported to the Soviet Unionfor leafleting. In 1920, Eugene Debs polled more than one million votes for president from his prison cell in the Atlanta federal penitentiary, where he was serving a ten-year jail term for giving a speech in 1917 praising draft resisters. Released in 1921, Debs, his health broken, was banned from voting or running for office; he died in 1926. After World War II, fear of communism translated into jail or deportation for thousands of political radicals guilty of saying the wrong thing or joining the wrong group, culminating in 1951 with the Supreme Courts affirmance of multiyear jail terms for the leadership of the American Communist Party, despite its status as a lawful political party.

So much for history, unless you want to erase the First Amendment.

* * *

A Tale of Two Readings

See the article here:
The First Amendment as we know it today didnt exist until the 60s