Dr. Jillian T. Weiss

U.S. Supreme Court: See No Evil, Hear No Evil, Speak No Evil

Filed By Dr. Jillian T. Weiss | June 22, 2010 12:30 PM | comments

Filed in: Politics
Tags: Berghuis, Boy Scouts, Citizens United, Humanitarian Law Project, Supreme Court, US Supreme Court, US v. Stevens

The U.S. Supreme Court is making less and less sense to me these days, particularly when it comes to speech.hear-see-speak-no-evil1.jpg

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?


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I have so much trouble with this sort of thing. I understand the traditional approach to law in my ethnic group and that is so very different from our approach to law in this country. My daughter just got her Juris Doctorate and she spend a lot of time answer my "WTF" about the SCOTUS. She has just made it a habit to watch what they are doing because she knows I'll ask and ask often.
I am very confused about them.

Well once again proof that even justice is not only blind, but also deaf and dumb at times as well.

I guess the answer to "When is a Law a Law?" is done by interpretation of it and who interprets it. One thing to ponder is that the forefathers of our Country wrote the Law of the Land with the white man in mind. There are a lot of things that need to be rewritten. Even state and local laws need to be changed. One that is on the books here in Phoenix is that Central Ave. is a designated horse path. In other words that means every motor vehicle and the light rail could be cited for its use. Amazing that things like this are still on record and possibly can be enforced, whether it will prevail is another story.

Bill Perdue Bill Perdue | June 22, 2010 3:37 PM

Do you think the Supremes are transitioning from partial support for the Bill of Rights to general hostility towards it?

Do you think these rulings prove that they're essentially political and not at all 'neutral'.

During the 2008 campaign Obots and Democrats kept up a deafening mantra of "Only the Supreme Court can save us from Republikan Konzentration Kamps" and similar nonsense.

People who misunderstood the Supremes got their wish but now it appears that Obama's Supremes nominations are as adept at pandering to bigots as Obama himself.

http://herdandscene.blogspot.com/2010/06/kagan-pushed-religious-liberty-despite.html

The answer, I believe, is quite simple.

The increasing majority on the Court is a reactionary one; that is, it is reacting to the liberalization of social mores since the Earle Warren Court.

The Federalist Society, the institutionalization of conservative legal scholars, such as those Elena Kagan hired when she was Dean of the Harvard Law School, has been consciously building towards this for 50 years.

Like so much else in this world, it is less overt violence that we must be concerned with, as Bob Mullaly argues throughout his work, but with oppression and the covert aversion it leads to. In our increasingly bureaucratic and legalized society, particularly in the Global North, this aversion as we see in the decisions you cite, Dr. Weiss, have increasingly greater effect upon our lives.

Simply put, presidents, and Obama is no exception, rather he exemplifies this dynamic, choose for the Court those Jurists who will read the law in a truly activist manner--belying their claims to strict constructionism--in whatever manner is necessary to reinforce the power of those who already have power, and enfeeble those who are already without.

These are people so steeped in the structures of power they cannot see anything other.

Even as Glenn Greenwald has been arguing for several days now (I'm referring to Greenwald alot recently), Obama is not weak, nor is the Presidency weak, rather it achieves precisely what Obama seeks to achieve--precisely what his backers, whether Big Pharma, Big Health, Big Banks, whatever--seek to achieve.

You and I, Dr. Weiss, and all of us who are steeped in what they would disparage as liberalism or judicial activism, see what is truly inherent in both the historical tradition of legal judgments--stare decisis I believe its called--and foundational principles of law, what leads us to see a contradiction in the way decisions, such as Citizens United are made.

We never saw this a cultural war or the war of ideas which the Right has be quite clear about since the 60's. When Reagan was elected governor of California; I was there.

We, and certainly you, see the law as something of an independent body of knowledge that proceeds to implicit ends, both built in and also creatively read into the law and the Constitution and the Bill of Rights.

The Rights doesn't.

It starts from pre-determined conclusions that support oppression. The Jurists now being appointed to the Court, by Obama and his predecessors and successors, seek to find the decisions that support the status of their sponsors.

Hence the contradictions we see in decisions that throw out a century of established, and settled, law.

It is a war of culture, of ideas, and of class--and we are losing.

I think it would only make sense to Joseph Hertzog of Catch-22 fame.

But only if he was on acid, 'shrooms and the entire inventory of drugs they had at Woodstock.

Simple explanation: they screwed up.

Citizens United v. Federal Election Commission was a bad decision. They make them sometimes - Dredd Scott being merely the most infamous.

There is very little about the United States Supreme Court that is simple.

If this were an isolated case, I might, just might agree with you.

but Dr. Weiss has cited many cases where something more than a bad decision is at play.

At what point does the number of individual bad decisions rise to the level of systemic bias?

I believe this point has long since been reached.

This is just one of the reasons I'm not an attorney. I would get too confused and/or angry to be effective.

polargirl360 | June 23, 2010 12:32 PM

Jessica seems to be the only poster here that fully gets it!

Damn!