Sago Boulevard

The Supreme Court has moved to the right but the sky isn’t falling just yet. Jan Crawford Greenburg nicely distinguishes Kathleen Sullivan’s critique of the Roberts Court from some of the more hysterical, “tabloid-style, Jerry Springer-esque” reactions (via Keith Burgess-Jackson).

The role of state-church separation in American law has been on my mind recently. Here’s what’s bothering me: I have a vague understanding of what “religion” means, although I’m aware that my understanding of the term is heavily influenced by personal religious biases. But I’m really not sure what “secular” means. Everybody, religious or not, believes certain things about the world to be true and certain things to be false. From a constitutional perspective, what’s the difference between a belief that happens to coincide with that of a major religious institution and one that doesn’t? You might answer that so-called religious beliefs simply have a special legal protection. But that’s not good enough. In order for certain kinds of beliefs to enjoy special protection, there must be some difference between those beliefs and others. Even if you make the silly distinction between “faith” and “reason”, the same problem arises. What about entirely secular beliefs that make no sense? (I can think of a few). Or a secularist who expresses beliefs that are often associated with religion? Is it the belief that is either “religious” or “secular” or is the individual expressing that belief? (more…)

Paul Horwitz, guest-blogging at Volokh Conspiracy, writes on the Religious Test Clause in Article V of the Constitution (”[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”) in the context of recent judicial nomination hearings. (more…)

NYTimes reports:

SAN FRANCISCO, May 26 — A California appeals court ruled Friday that online reporters are protected by the same confidentiality laws that protect traditional journalists…
…
In its ruling, the appeals court said online and offline journalists are equally protected under the First Amendment. “We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” the opinion states. “Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment.”

The ruling states that Web sites are covered by California’s shield law protecting the confidentiality of journalists’ sources.

The ruling strikes me as correct despite the slippery slope. Yes, not all bloggers qualify as journalists but enough do to justify using the First Amendment to protect them. (via Bitch PhD)

We should take notice of any legal action that limits freedom of expression, even if it turns out to be justified. Libel and slander laws, for instance, explicitly limit free speech and that shouldn’t be taken lightly. It’s justified, not because free speech doesn’t apply, but rather because the negative externalities of limitless libel and slander outweigh other considerations.

The anti-Holocaust-denial legislation that helped convict David Irving should be viewed in this light. The question isn’t whether or not it violates free speech (of course it does). It’s whether or not allowing public Holocaust-denying is better.

From what I can tell, the discussion over Irving’s conviction seems to be about censorship in general. Alonzo Fyfe argues:

[C]ounter-words are the only legitimate response to the claims that David Irving made. Responding to his words with violence (including the violence of state-imposed punishment) is no different that Muslims responding to the Mohammed cartoons with violence.

Jim Lindgren writes similarly:

I don’t think that holocaust denial… should be a crime… [T]he cartoon riots have confirmed and strengthened this opinion. The Imams are right to point to the inconsistency in European treatment between holocaust denial and blasphemy against Mohammed.

The comparison with the Danish anti-Muslim cartoons misses a crucial difference. Holocaust denial conjures up an image of violence. It has been and continues to be used by anti-Semites to rally against Jews and against Israel. It should come as no surprise that Arab countries that deny Israel’s right to exist and sponsor terrorism against it, regularly support claims that Jews exaggerated the Holocaust for political purposes.

This is not the case regarding the Mohammed cartoons. Although a negative reaction from the Muslim world was surely expected, there is no particular violence against Muslims that the cartoons represent. I think it’s reasonable to distinguish between the two on these grounds. Holocaust denial is clearly associated with violence against Jews and thus, qualifies as incitement. In countries where this is especially true (i.e. Austria) I think legislation criminalizing it is justified.

Professor Volokh writes about his article Deterring Speech: When Is It “McCarthyism”? When Is It Proper? dealing with when economic retaliation against unpopular speech is justified. When the Dixie Chicks announced they were ashamed that President Bush is from Texas some music stations stopped playing their music. MCI stopped using Danny Glover in its commercials apparently because he opposed the Iraq war and defended Fidel Castro. Susan Sarandon, Tim Robbins, and Sean Penn all experieced backlashes for similar unpopluar positions.

While I think it’s inappropriate (and possibly illegal) in general for employers to discriminate on a political basis, entertainment warrants an exception. As Volokh explains:

Entertainers are valued speakers because people like them. Danny Glover makes a good pitchman for MCI because people feel good about him: If MCI simply wanted someone who could act well in its commercials, it could have hired a nameless actor for much less. Susan Sarandon was invited to speak to the United Way because people want to hear the well-liked movie star Susan Sarandon, not because Sarandon is a national expert on women in volunteerism. People go to movies largely because they like the stars’ work, but also because they like the stars or at least like the image that the stars project; the same is true for musicians. That’s a big part of why entertainers have publicists.

When people stop liking you, whether because they think that you’re rude, vulgar, or foolish, your value as a speaker or pitchman falls. People are less likely to want to hear you or buy products that you promote. Those who hire you, invite you, or play your music might understandably switch to someone who alienates fewer audience members. What you gain from your sex appeal, coolness, or association with worthy causes, you lose from what people see as your rudeness, folly, hostility to projects they support, or association with causes they dislike. Tolerance demands that people neither beat you up for your views nor throw you in jail for them. But it doesn’t demand that people continue to like you—and if they don’t like you, then you won’t be as effective a promoter.

An Arab couple is petitioning an Israeli court, claiming that the government policy of giving greater mortgage benefits to veterans of the military is discriminatory. (Via David Bernstein )

First, it should be pointed out that the couple, “based on the number of children and siblings they have,” is entitled to a NIS 207,000 mortgage by law. Had they served in the military, however, they would receive a mortgage of NIS 255,000. This discrepancy, according to the couple, is discriminatory.

But discriminatory against whom? Arab citizens are permitted to volunteer in the Israeli military, even if not many do. But that is besides the point. Veterans are awarded benefits because of their national service. They give up 3 years of their youth, delay education and career aspirations, and risk their lives. That Israeli Jews are drafted while Israeli Arabs may volunteer doesn’t strike me as a relevant difference.

I’d go a step further and argue that even if Arabs were not permitted to serve, it would still not justify this claim. In such a situation, I would be sympathetic to a law suit demanding that the Israeli military allow Arabs to serve, but not one demanding financial benefits as though they had served.

Consider the following analogy. If I am wrongly discriminated against in seeking employment in, say, the NYPD, it’s reasonable for me demand accountability and perhaps even compensation. But, when I turn 65, is it reasonable for me to demand that NYPD pay me a pension and award me other benefits on grounds that they discriminated against me? Of course not. The pension is payment for a life of service and only those who serve receive it. Similarly, the benefits Israel affords its veterans should be limited to, well, veterans.

Having failed to ban reciting the Pledge of Allegiance in public schools, Michael Newdow is now trying to remove the phrase “In God We Trust” from our currency. Newdow’s explanation as to why is, I think, particularly telling.

“The key principle is that we’re supposed to treat everybody equally especially in terms of religious belief,” Newdow told KWTV in Oklahoma City. “Clearly it’s not treating atheists equal with people who believe in God when you say ‘In God We Trust’ or we are a ‘nation under God.”

There are at least two issues that we should be careful not to conflate. One is whether or not “In God We Trust” belongs on our currency. The other is whether or not it is constitutionally permitted to have it on our currency. Obviously, if we say that it is indeed unconstitutional, it follows that we should remove it from our currency. But it doesn’t work the other way around. Saying that “In God We Trust” doesn’t belong on our currency isn’t an argument for its unconstitutionality.

Newdow often intersperses his constitutional argument with a public policy one because, frankly, he needs to. Regarding the phrase’s constitutionality, Newdow invokes the Establishment Clause. But what religion is the phrase “In God We Trust” endorsing? Is the phrase taken from any sacred scripture or part of a particular religious tradition? As Bill Vallicella correctly notes:

The exceedingly vague phrase “In God We Trust” does not have the power to establish any religion as the state religion… The vague theism/deism suggested by ‘God’ in the sentence in question… is not a specific religion. And note that the vagueness is very significant. ‘God’ can and does mean different things to different people. For the pantheistically inclined, God is nature. For some deists, God is nothing but a cosmic starter-upper. Or ‘God’ might be a way of referring to ethical ideals.

I’ll even go a step further. “In God We Trust” need not be about God at all. It may merely express that the United States sees itself as responding to some great calling. Similarly, the phrase “God only knows”, when used to express utter cluelessness is hardly an affirmation of an all-knowing divine being.

As to whether or not “In God We Trust” belongs on our pennies as a matter of public policy is a different issue. Despite the vagueness of the phrase, many may still feel excluded on account of their differing beliefs. If that’s the case, a bill ought to be proposed to remove it and the Democracy will rule. But it has nothing to do with the Establishment Clause.

In Olmstead v. United States, Justice Louis Brandeis describes the right to privacy as he sees it:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and his intellect…. They sought to protect Americans in their beliefs, their emotions, and their sensations. They conferred, as against the Government, the right to be left alone—the most comprehensive of rights and the right most valued by civilized men.

For Brandeis, it sounds like the right to privacy is a kind of foundation upon which all other rights depend. The following question then arises. If particular rights such as speech, assembly, and religion are enumerated in the Constitution, is it at all meaningful to talk about a right to privacy, per se? Timothy Sandefur of “Positive Liberty” says no: “I have never liked the phrase “right to privacy.” It is redundant. All rights are a right to privacy.” Brian Radzinsky of “Stalinist Orange” adds:

It follows that “right to privacy” is a backward construction of sorts. Essentially, privacy is a manifestation of the permissions we enjoy and possess under those abstract things called “rights.” Privacy stems from property as much as it stems from liberty. Its nature is determined by application, not inherency. Therefore, for example, if one is to buy a house and live in it, privacy stems from the right to be secure in that property. One’s medical files are kept secret because their circulation might lead to an infringment of liberty, by being used in an unwarranted search for incriminating evidence.

If “privacy is a manifestation of the permissions we enjoy”, then it’s not quite redundant. What Sandefur should say is that all rights stem from a right to privacy. It’s not a backward construction. The implied right to privacy justifies the 4th Amendment, not the other way around. The reason that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” is because the Founders assume a basic right to privacy.

Returning to my original question, if we have a 4th Amendment why do I need a particular right to privacy? Well, not every manifestation of privacy is foreseen in the Constitution. As both Sandefur and Radzinsky agree, privacy is implied by liberty. Simply put, it’s the right to be left alone. S0 when the Constitution omits a particular instance of privacy, it’s certainly acceptable to appeal to the generally implied right in applying constitutional values to new circumstances.