The U.S. Supreme Court is making less and less sense to me these days, particularly when it comes to speech.
There have been thousands of U.S. Supreme Court decisions about speech, the freedom of speech, and its various forms and permutations.
The lines drawn around what constitutes "speech," and what does not, form a crazy polygon with a lot of dotted lines and strange curliques.
I am writing a law review article this summer on the alleged clash between LGBT non-discrimination law and the First Amendment. The more I see, the less I understand.
Recent cases in the news have made this whole area even more opaque and confusing. The legal doctrine reads like a riddle:
Not speaking is speech when you do it to law enforcement, it's speech when you give corporate money to electioneering, or film sickening animal abuse videos for fun and profit, but speaking is "material assistance" rather than speech when you do it to help terrorist organizations turn to non-violence. Being gay is speech when organizations don't want to associate with gay people, but not speech when you say it to your employer.
Here is a summary of some recent cases in the news that seem to contradict one another, except, perhaps, in the "everything is its opposite" Bizarro World of legal doctrine.
Early this month, the Court said that a criminal defendant, Thompkins, did not speak of waiving his right to silence. Therefore, the Court said he did speak of it, and thereby obviously intended to waive his right to silence, by not speaking of it.
According to the Court, his failure to specifically ask for the right to remain silent by name, after his silence in the face of three hours of interrogation in custody, resulting in a one-word answer to an oblique question that convicted him -- that meant he intended to waive his right to remain silent. This even though previous Court decisions required a specific waiver, knowingly and intelligently given, not just coerced out of him by long hours of interrogation. Berghuis v. Thompkins (US Supreme Court 2010) Another limb severed from the Miranda decision.
Citizens United, a nonprofit corporation, expended funds from its treasury to produce broadcasts in violation of the Campaign Reform Act of 2002. The Court said that money is speech, and thus protected by the First Amendment. Citizens United v. Federal Election Commission (US Supreme Court 2010)
Robert Stevens sold films featuring dogfights, in which dogs are egged on by trainers who abuse them into mauling and killing each other, in violation of federal law. The Court said his films constituted speech, and were protected by the First Amendment. They said that they had no "freewheeling authority" to declare new categories of speech outside the scope of the First Amendment. They said this despite the disturbing similarities between the sales of animal abuse videos (often pornographic in nature, featuring nude women crushing small animals under high heels, which prompted the federal statute), and possession of child pornography (which include even merely nude pictures of people under 18, even pictures of your children) US v. Stevens (US Supreme Court 2010)
So money is speech, rather than unprotected material assistance, if you're campaigning against Hillary Clinton. And animal abuse videos are protected speech, even though sold for a profit.
And, strangely enough, speech is not speech, but "material assistance," if you're trying to help a terrorist organization turn to non-violence.
In an opinion released yesterday, the Humanitarian Law Project proposed to speak to terrorist organizations, to teach them to fight injustice in non-violent ways. They planned to provide only advice about how to work with the United Nations, not money or goods. But the Court said that their speech is not speech, but illegal "material assistance" to terrorists. Therefore, the First Amendment right to freedom of speech did not apply. Holder v. HLP (US Supreme Court 2010)
The Boy Scouts of America said that it did not want to accept gay scoutmasters. The Court said that being openly gay is speech, and so the government cannot force the Boy Scouts to associate with it. Boy Scouts of America v. Dale (US Supreme Court 2000)
The government of Virginia wished to fire an openly gay employee because being gay is against a manager's beliefs. Although the US Supreme Court called being openly gay a form of "speech," the Virginia Supreme Court found nothing in the US Supreme Court precedents to prevent the government from rejecting the "speech" of gay identity by firing the gay employee. Moore v. Virginia Museum of Natural History (Va. Supreme Court 2010)
To summarize: Not speaking is speech when you do it to law enforcement, it's speech when you give corporate money to electioneering against Hillary Clinton, film sickening videos of animal abuse for fun and profit, but speaking about non-violence is "material assistance" rather than speech when you do it to terrorist organizations. Being gay is speech when organizations don't want to associate with gay people, but not speech when you say it to your homophobic employer.
How did "Congress shall make no law . . . abridging the freedom of speech" get so convoluted?
Am I the only one confused here? What do you think of this?