Societies Need the Moral Law

Bill O'Reilly has written of the recent murder of George Floyd and the riots that have followed:


"There is only one real solution to deprivation, crime, and helplessness and that is to teach the children well .... "If a child cannot read, write cursive, do math, speak properly, and does not understand that skills have to be developed so honest money can be earned, that child will likely become an impoverished adult without much hope."


I don't disagree with O'Reilly. But he stops short of pointing out an even more fundamental problem. America was built on two fundamental moral values: "Love God with all your heart, soul, mind and strength, and love your neighbor as yourself."


There was a time when the Jewish people were wandering in the desert. Perhaps they were really marking time, building strength until they were strong enough to emerge from the desert to conquer the "promised land." But Moses realized that a nation had to be more than an assemblage of tribes or a horde. If the Jewish people were to be a nation, they had to have a national identity and unity. They had to have laws. If the new nation was to be peaceful and secure it could not countenance people murdering each other, stealing their neighbor's belongings, or men seducing other men's wives. Therefore, he gave his people the Ten Commandments — which have been condensed into loving God and neighbor.


To bind the people of the twelve Jewish tribes into a one nation, and avoid religious controversies, the First Commandment specified that one God would be worshiped. To provide order within families, another required children to honor and obey their parents. To eliminate inter-family feuds and revenge killings, the commandments made murder, theft and adultery crimes against the people of the nation rather than merely against individuals.


Once criminalized, the whole people punished offenders, eliminating the need for revenge and private feuds. But as important as the commandments were as "laws," they were even more important because they were "God-given" moral rules. They drew a bright line between right and wrong. As such, they established a national morality. In short, the commandments created both God-given legal and moral codes.


But even more importantly, for over 2,000 years ordinary Western men (not all of them) have lived with a belief that if the law did not punish the wrongdoer, God would.


Whether you believe that God gave Moses the Ten Commandments or not, no society can have peace and security unless its people believe divine justice will prevail when human justice fails.


You can't "love your neighbor as you love yourself," or "do unto him as you would have him do unto you," if you kill him, steal from him or burn down his house.


If you justify doing harm to a person who has never harmed you, you accept the proposition that the end you choose justifies the means you employ. But what happens when your neighbor chooses to destroy you to achieve his ends?


The purpose of the criminal law is to outlaw revenge. Or do two wrongs make a right? If A murders B, and B's brother C murders A, why can't A's sister D, murder C? Do we need generational feuds?


The point I am trying to make, and the point O'Reilly didn't make, is that to have peace and security, the young and old of society must believe in a God-given moral law. We must live by a consensus that certain acts are good and other acts are God-proscribed, and God-punished.


There was a time when schools (other than parochial schools) taught this morality. But once you bar God from the schools, the morality taught there loses its God-given underpinning. That then can come only from churches or parents.


But what if children don't go to church? What if their mothers are little more than children themselves, and their fathers are nowhere to be found? Who then teaches traditional moral values? Certainly not the street gangs, where the rules are "survival of the fittest" and "might makes right."


So who's left? Hollywood? The tabloids? Rioters?


Nobody who loves his neighbor as he loves himself or practices the "Golden Rule," does violence to or steals from his neighbor, or destroys his neighbor's property. The criminal laws are only needed to deal with people who chose not to love neighbor as self.


If you believe that God punishes wrongdoers even if the law fails to do so, you won't accept as your morality, "the ends justify the means," "might makes right," or "good is whatever I decide is good." You won't risk violating the law, calculating that you will not be dragged into court.


When a critical mass of citizens comes to scorn the belief that God punishes evildoers, we will only have enough police officers when we have a police state.

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on July 24, 2020

Copyright 2020, John Donald O'Shea

In Support of "Counterspeech"

Hitler, Stalin, Mussolini, Mao, Castro, Maduro and their ilk are all predictable: They suppress free speech and freedom of the press. In Nazi Germany, if you denounced Hitler's regime, you ended up in a concentration camp or exterminated.

In Stalin's U.S.S.R., you ended up in a gulag, or liquidated. In present-day China you end up in a "re-education camp" or dead. And what has become of freedom of speech and the press in Cuba and Venezuela?

Over our history in America numerous efforts have been made to squelch speech critical of the government and unpopular causes, beginning with the Sedition Act (1798). But since the passage of the 14th Amendment, the Supreme Court, time and again, has acted to keep the government and many other well-meaning Americans from "re-writing" our First Amendment — which still reads, "Congress shall make no law ... abridging the freedom of speech, or of the press" — to instead read, "Congress (or the States) may make some laws ...."

The court, instead of agreeing that unpopular political speech and offensive speech should be prohibited, suppressed or silenced, has suggested the constitutional remedy to be "counterspeech."

In 1927, in Whitney v. California (concurring opinion), Justice Louis Brandeis explained what "counterspeech" entails:

"If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

More recently, Justice Anthony Kennedy wrote in U.S. v. Alvarez, (2012), "The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth."

Then in Citizens United, Kennedy wrote: "It is our law and our tradition that more speech, not less, is the governing rule."

You can pore through our high court's decisions forever, and you will find no case holding that burning someone else's building, looting a neighbor's business, or destroying a publicly erected historic statue or a church is a constitutionally protected form of speech.

The First Amendment protects your right to peacefully protest by wearing a shirt that says "Defund the Police" or by destroying a statue that you own and have erected in your own front yard. But it gives you no right to "protest" by burning your neighbor's flag, throwing rocks at police officers, or burning books you've dragged from the university library that you deem offensive, hate-filled, racist, bigoted, etc.

Once you start burning, destroying and looting public property or the property of others, you cease being a constitutionally protected "protester" engaging in First Amendment protected speech and become a criminal, a fascist, a thug, etc.

The fact that you believe that your motive for acting like one of Röhm's Brownshirts is pure, does not make your actions any better than those of the Brownshirts.

It has been argued that "very few right-wing personalities have been blocked from speaking on campuses."

That isn't a defense. It's a pathetic admission — an admission that leftist mobs are blocking at least some conservative speakers.

Do you recall the CNN story about how protests against Breitbart editor Milo Yiannopoulos at the University of California-Berkeley turned into riots? Did the university not cancel the event owing to the mob action? Was Yiannopoulos one of the "very few right-wing personalities that have been blocked?"

Why were there many empty seats at President Trump's recent rally in Tulsa?

Was that because TikTok users proposed that Trump opponents could reserve tickets they had no intention of using to block Trump supporters from getting tickets? Were not two of the entrances to the rally blocked for a time? Were the president and his supporters among the "very few right-wing personalities that have been blocked (at least partially)?"

How about Ben Shapiro at UCLA? Professor Mike Adams at the University of Montana? George Will at Scripps College? Ayaan Hirsi Ali at Brandeis University? Michelle Malkin at American University? Jason Riley at Virginia Tech?

So where do we go from here?

Does "no law" still mean "no law?" Or does it mean the government can make some laws abridging freedom of speech? And if the government can't shut down speech, why is it acceptable for an un-elected violent mob to do so?

What lies and distortions were Yiannopoulos, Trump, Shapiro and the others planning to spew that could not have been adequately dealt with by rational "counterspeech"?

If today's left can employ intimidation and violence to shut down speech it deems "offensive," what happens when the "Thermidor" follows the "Reign of Terror."

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on July 18, 2020

Copyright 2020, John Donald O'Shea

Citizens United may soon be embraced by the Left

A corporation is a "legal person" under the law. But do Corporation have Constitutional rights?


Clearly all corporations do have at least some Constitutional Rights. Clearly the government cannot, consistently with the Fifth Amendment to the U.S. Constitution, seize Deere's headquarters to use it as the new the new Federal Building without affording Deere due process, and without paying fair compensation for the taking.


And yet a great many Americans question whether corporations have First Amendment rights, such as the right to engage in "political speech".


So, does a business corporation have a Constitutional Right to engage in "political speech?"
Or should the right of corporate "political speech" be limited to media companies such as the NY Times, NBC, Fox News, CNN and the AP?


That is what the Citizens United Case was about. There the court held that business and not-for-profit corporations had a First Amendment right to spend their general funds to engage in "political speech" without the necessity of setting up PACs to handle "special funds" for that purpose.


But why? Imagine Congresswoman Cortez is running for re-election promising to end commercial airline service. Image that all the great media corporations, including ABC, NBC, CBS, CNN, MSNBC, Fox News, The NY Times, the Washington Post, etc. all endorse her re-election. Does Boeing have to sit silent? Or should Boeing be able to spend corporate funds to tell the public that Cortez "is an idiot whose policies would do irreparable harm to the American people, and destroy Boeing?" Can Boeing run ads endorsing her opponent, who believes commercial air travel is essential to the welfare of the American people?


Citizens United held that counter-speech is the remedy provided by the First Amendment. If media corporations can support Cortez and her agenda, Boeing, a business corporation, must have the same right to engage in "political speech" to defeat Cortez and her agenda. While the First Amendment guarantees that a free press has a right to engage in "political speech," it no where limits free speech to giant media corporations.


Now a major new First Amendment battle is looming. Conservatives believe they are being silenced by Google, Facebook, Twitter, etc. These giants are also business corporations. So what are their First Amendment rights? Citizens United strongly presages that they will be found to possess the same
Free Speech rights as any other media or business corporation.


Since the earliest days of our Republic, certain newspapers have been overtly partisan. The Federalists has their partisan newspaper, the Gazette of the United States. To counter that, the National Gazette was founded with the support of Madison and Jefferson, at a time when Jefferson was Washington's Secretary of State. Jefferson hired Philip Freneau to serve as editor and put him on the State department payroll. The paper inveighed against Alexander Hamilton's financial policies as "numerous evils ... pregnant with every mischief." It accused Washington of harboring "monarchial" tendencies.


Our First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press." Nobody ever better explained "Why" than Justice Hugo Black in NY Time Co. v. U.S. (The Pentagon Papers case), wrote


"Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: 'Congress shall make no law... abridging the freedom... of the press....'  Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.


"In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors."


If that is so, and Citizen United recently said that it is, Congress can make no law requiring Google, Facebook or Twitter to be "fair and balanced." The remedy left to Conservatives is "counterspeech." They are entirely free tocreate a search engine and social media platforms with a "conservative bias." In this light, I would not be surprised if my liberal friends who have inveighed against Citizens United suddenly do not embrace it.


But up until now, Google, et al, have portrayed themselves as "common carriers" - rather like the "soap box" of yore in Chicago's Bughouse Square. As "common carriers," they could not be held responsible for what their 'users" were saying. They merely provided the neutral "soap box" or "megaphone." For that they were granted immunity from suit for things their "users" said.


But if they are now engaging in advancing liberal idea, and blocking conservative ideas, they are no longer mere "common carriers." They have become partisans, rather like the National Gazette. As such, they should enjoy all the same First Amendment rights and immunities as the Washington Post and Breitbart.

No more; no less.

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on July 5, 2020

Copyright 2020, John Donald O'Shea