Free Speech and Free Counter-speech. Our First Amendment Rights

When the Supreme Court in Citizens United held that all corporations -- profit, non-profit and ecclesiastical -- had the First Amendment right to use their corporate funds to voice and "broadcast" their political and economic ideas (as The New York Times or The Washington Post do on a daily basis), the court was vilified.

The essence of Citizens United was that your right to "speak" necessarily assumes that someone who disagrees with you has the right to engage in "counter-speech."

When I was a law student, one of my professors said, "A nation teaming with a myriad of competing entities, large and small, each espousing and pursuing its own competing interest, must of necessity remain free and democratic. The totalitarian state can brook no dissenting entities."

His remark was reminiscent of what the great Justice Oliver Holmes said in Abrams v. U.S. "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.

"To allow opposition by speech seems to indicate that you think the speech impotent …

"But when men have realized that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market ….

"That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

"Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

So what is happening in our modern "free marketplace of ideas?"

When I was a boy, living in a Chicago suburb, Chicago had four major newspapers: the Chicago Tribune, the Sun Times, the Daily News and the Herald American. They spoke with very different voices. The Tribune was staunchly conservative. The Sun Times was pro-Democrat, but independent of Chicago political control. The Daily News was scholarly and literary. The Herald American was something right out of Ben Hecht's play, the"Front Page."

Today, only the Tribune and Sun Times survive.

Running parallel to the demise of many newspapers is the phenomenon of merger. In June 2000, the Tribune acquired the Los Angeles-based Times Mirror Company.

That merger added seven daily newspapers to the Tribune's chain, including the Los Angeles Times, the Baltimore Sun, the Hartford Courant, and the Long Island-based Newday. Additionally, the Tribune acquired TV stations in New York and LA to go along with WGN-Chicago.

As each independent newspaper, TV station or radio station died off, America lost one more independent purveyor of ideas. As media holding companies gobble up small media companies, "thought monopoly" tends to replace diverse and independent thought.

But what should be more worrisome is the emergence of the intolerant tyranny of "political correctness." Disfavored speakers are shouted down so their voices can't be heard. Riot, as at Berkeley, becomes the left's weapon of choice to suppress disfavored speech. The infallible apostles of the religion of "clean energy," hold that "error has no rights," and that any politician or corporation espousing contrary "heretical" views must be silenced -- denied any right of "counter-speech." What other way of thinking can justify the attempted assassination of Rep. Steve Scalise and his fellow baseball-practicing Republican Congressmen because their politics was objectionable to the shooter?

When I was a boy, that's exactly the way things were in the USSR. All newspapers and media were a monopoly of the Communist Party and the Soviet State. All Soviet "truth" came from Pravda, or other state-controlled media. There was no marketplace of ideas.

Dissent was punishable with a one-way ticket to Siberia. Ancient history? How is counter speech being tolerated in Venezuela today?

The choice is yours: a free marketplace of ideas, or totalitarianism.

Posted: QCOline.com July 16, 2017
Copyright 2017, John Donald O'Shea

When First Amendment Prohibitions and Rights Collide

                       “Congress shall make no law respecting an establishment of religion, or prohibiting the 

                       free exercise thereof.” -- 1st Amendment, U.S. Constitution

In June, the U.S. Supreme Court, in Trinity Lutheran Church of Columbia, Inc. v. Comer, decided a major 1st Amendment case involving both the establishment of religion and the free exercise of religion clauses of the 1st Amendment.

So what happens when a state's effort to avoid establishing a religion collides with a church's free exercise of its religion?

The court summarized the facts:

"The Missouri Department of Natural Resources offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.

"Trinity Lutheran applied for such a grant for its preschool and daycare center.

"The ... Center is ... open throughout the year to serve working families. It admits students of any religion. Enrollment stands at about 90 children, ranging from age two to five.

"... it would have received one, but for the fact that Trinity Lutheran is a church.

"The Department had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program.

"The Department ultimately awarded 14 grants in 2012. Because the Center was operated by Trinity Lutheran Church, it was denied a grant."

The Court then set out the issue:

"The question presented is whether the Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.

Trinity Lutheran sued alleging that the department’s failure to approve the venter’s application, pursuant to its policy of denying grants to religiously affiliated applicants, violates the free exercise clause of the 1st Amendment. The lower courts held for the department. The Supreme Court reversed, saying:

"The Free Exercise Clause 'protect[s] religious observers against unequal treatment' and subjects to the strictest scrutiny, laws that target the religious for 'special disabilities' based on their 'religious status.'

"... this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest 'of the highest order.'

"Consequently, [a state] cannot exclude individual Catholics, Lutherans, Mohammedans ... or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.

"A law, we said, may not discriminate against 'some or all religious beliefs.' Nor may a law regulate or outlaw conduct because it is religiously motivated. ...

"The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character."


The Missouri Department contended that merely declining to extend funds to Trinity Lutheran does not prohibit the church from engaging in any religious conduct or otherwise exercising its religious rights.

The court answered:

"It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, ... the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.'

"The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church -- solely because it is a church -- to compete with secular organizations for a grant. ... The 'injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of a contract).

"In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply."

Missouri argued its "compelling interest" was its "policy preference" for "skating" as far as possible from any possible "establishment of religion."

The court responded:

“The state interest asserted here -- in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution -- is limited by the Free Exercise Clause.”

So the bottom line is this: If the state is handing out balls and bats and/or playground equipment to not-for-profits, if you are a church, get your application in. They can't deny your request simply because your program is church-affiliated. Caveat: establishment of religion precedents would allow the state to refuse to fund a course of study designed to make the applicant a priest or a minister.

Posted: QCOline.com July 9, 2017
Copyright 2017, John Donald O'Shea

US Needs One Immigration Policy, Not 700

"The Congress shall have power ... to establish a uniform rule of naturalization ... throughout the United States." -- U.S. Constitution, Article 1.

The Appellate Courts of the 4th and 9th circuits had affirmed most of the Preliminary Injunctive Relief granted against President Trump's Executive Order No 2 by lower district courts. The U.S. Supreme Court has now unanimously stayed those appellate court orders -- except as to those "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." (i.e., "the exception")

The court has set hearing on the merits of all issues of the consolidated cases for October 2017.


Were I writing the President's Supreme Court brief on the main issue (note: not on "the exception"], appealing from the 9th Circuit's Immigration rulings, my brief would go something like this:

The U.S. Supreme Court, in Galvan v. Press, stated that under Article I of the Constitution, the power to make immigration laws “is entrusted exclusively to Congress.”

In Fiallo v. Bell, the Supreme Court stated, "Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. ... The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification ... have been recognized as matters solely for the responsibility of the Congress.”

So, what if Congress, in an exercise of exclusive power to make immigration laws, were to make the following hypothetical findings and law?

"The unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States and directs that the entry of nationals from those designated countries be barred for 90 days."

Would the 9th Circuit Court of Appeals, or any other federal court have power to enjoin that exercise of congressional power?

What is the meaning of the word "exclusive?" Does Congress have "exclusive" power, if a court can enjoin exercise of that power?

If the power to make immigration laws “is entrusted exclusively to Congress,” and is "solely the responsibility of the Congress," that power is neither "exclusive" or "sole" if any court can bar Congress from exercising that power.

But what if Congress delegates its power to control immigration to the president -- the chief executive? Indeed, in the Immigration and Naturalization Act of 1952, Section 212(f), that is precisely what Congress did.

"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

In writing that law, Congress exercised its "EXCLUSIVE" power over immigration. It delegated its "exclusive" power to make "findings" [president finds] to the president. It also delegated to the president, its "exclusive" power to "deem what is appropriate" [he "may deem to be appropriate"].


So, if the president "deems it appropriate" to bar entry by nationals from six countries where Muslims are slaughtering Muslims for 90 days because he fears that at least some of those immigrants or refugees will bring their "holy wars" here, and that that would be detrimental to our security, can any court second-guess him? Make its own determination of what is detrimental? What vetting is appropriate and required for our national security?

Under Section 212(f), the president alone, as chief executive, has been designated by Congress as Congress' agent. Pursuant to that delegation, President Trump has made his executive order.

(The "hypothetical legislation" set out above is a verbatim excerpt lifted from President Trump's Revised Immigration Executive Order, EO No. 2.)

The main question which the Supreme Court will decide in October is who decides whether the president's finding is legally sufficient? Who decides whether immigration from a particular country will be detrimental to the U.S.? The president, or 700 federal court judges? Will we have one immigration policy, or 700?

If you think the latter, what competence does any judge have to manage immigration?

National security? The answer is obvious: NONE.

Posted: QCOline.com July 3, 2017
Copyright 2017, John Donald O'Shea