Sorry, Kids, The 1st Amendment Does Protect "Hate Speech"

By Michael McGough

Friday, October 30, 2015

A recent poll of college students’ attitudes toward free speech (in general and on campus) is a mixed bag.

The survey by McLaughlin & Associates for the William F. Buckley Jr. Program at Yale shows that 87% of respondents agreed with this statement: “There is educational value in listening to and understanding views and opinions that I may disagree with and are different from my own.”

That’s good news that runs counter to the narrative that campuses have been seized by a speech-stultifying political correctness.

On the other hand, 21% students -- and 30% of self-described liberals -- agreed with the statement that the 1st Amendment was an “outdated amendment that can no longer be applied in today’s society and should be changed.”

Also remarkable was the fact that 35% of respondents agreed that “hate speech is NOT protected under the 1st Amendment.”

When the editor-in-chief of the student newspaper at Williams College recanted an editorial that had suggested that “some speech is too harmful to invite to campus,” she added this qualification: “Students should not face restrictions in terms of the speakers they bring to campus, provided of course that these speakers do not participate in forms of legally recognized hate speech.”

The problem is that there is no such thing.

As Eugene Volokh of UCLA law school pointed out on his blog in the Washington Post: “Hateful ideas (whatever exactly that might mean) are just as protected under the 1st Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.”

(Volokh’s parenthesis about “whatever exactly that might mean” points to a different issue: the defining down of the word “hate.” Opposing same-sex marriage, a position embraced not that long ago by President Obama, is sometimes viewed as anti-gay hate speech. So is criticism of the Catholic Church. Bill Donohue of the Catholic League asserted that a Jon Stewart skit involving a Nativity scene "ranks with the most vulgar expression of hate speech ever aired on television.")

So where does the idea that the 1st Amendment doesn’t protect hate speech come from?

Not from thin air. While the Supreme Court hasn't said that there is a "hate speech" exception to the 1st Amendment, it has in the past upheld some restrictions on hateful speech.

 “For instance," Volokh notes, "there is an exception for ‘fighting words’ — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements.”

 Also, he notes, in the 1952 case of Beauharnais vs. Illinois the court "did ... uphold a ‘group libel’ law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true, and were said with ‘good motives’ and for ‘justifiable ends.'  But this too was treated by the court as just a special case of a broader 1st Amendment exception — the one for libel generally. And Beauharnais is widely understood to no longer be good law, given the court’s [later] restrictions on the libel exception.”

Some hateful speech is unprotected if it crosses over into conduct -- such as the use of a racial slur to threaten or intimidate someone. And hateful speech in the workplace can create a “hostile environment” that the courts have treated as a form of discrimination. (Some courts have also recognized an analogue to a hostile workplace environment in educational settings, though this is more controversial.)

Outside those situations, hate speech is protected by the 1st Amendment against abridgment by the government, including a state university. (As a private institution, Williams College isn’t bound by the 1st Amendment in the way the University of California is. But its policies on speech have nothing to do with “legally recognized hate speech.”)

 “Haters gotta hate," the saying goes. But if they do, their words are protected by the Constitution -- whatever college students think.

America's Weakening Military Strength Is Terrifying

Investor's Business Daily

Friday, October 30, 2015

Military Readiness: Pretty much everyone — even ex-state senator Barack Obama — says a president has no greater responsibility than national defense, protecting the homeland, its people and interests abroad. So why isn't he?

Americans have learned over time and especially since 2009 that what an administration says are its priorities and goals may be mere words.

Remember those millions of new jobs promised for the summer of 2010? Or the $2,500 in health care savings every family would enjoy with ObamaCare that have turned into $3,000 more in expenses?

So, it's particularly disturbing to read the Heritage Foundation's latest annual Index of U.S. Military Strength. We'd make some kind of timely Halloween reference here, but the nation's eroded, corroded military strength and capabilities documented therein are beyond scary. They're terrifying. A few disheartening examples:

• From 566,000 in 2011, the Army has been cut to 490,000 on the way to 450,000 and possibly 420,000.

• Under severe budget constraints, the Air Force is retiring older planes more expensive to operate. But their replacements are late coming into service. KC-135s comprise 87% of a vital flying tanker fleet, but average 50 years old, way past 100 in human years.

• The Air Force's tactical aircraft squadrons will soon number 26, down from 133 in the 1990s.

• The Navy stretches deployments to cover gaps. It's one carrier short into next year. Vice Chief of Operations Michelle Howard says, "Navy readiness is at its lowest point in many years."

• The Marine Corps, the crisis strike force, has fallen from 292,000 to 184,000. Fewer to come.

It's one thing to not recruit foot-soldiers. It's another to forcibly retire (even prosecute) career generals, as Obama's done. Worse, he's forced out hundreds of career majors and colonels. That wipes out an entire cohort of experienced officers who would have been our generals of the future.

A variety of domestic fiscal and political forces have combined over time with doubtful assumptions, wishful evaluations and lazy rationalizations to downgrade across the board the military capabilities of the country's all-volunteer forces in size, equipment and reach.

No wonder the world's dark sides, including Russia, China, ISIS and North Korea, take advantage of that voluntary vacuum to escalate their own rise. The U.S. can no longer handle a variety of global threats, even if the current president had the will to do so.

Remember Obama's 2013 National Defense University speech proclaiming victory over declining terrorist forces and the end of continual wars? There's a problem with such wishful thinking: It takes two to not have a war. It also takes two sides to reach and honor that new agreement on nuclear weapons.

Recall Obama dismissing ISIS as a JV team? That got him through a few months of news cycles. But ISIS didn't get the memo and spread its tentacles of death far and wide before he reluctantly faced its reality. Even then, his "strategy" was a half-hearted, ineffective bombing campaign that's produced only stalemates. And even Canada has quit that effort as useless.

The good news is Obama's reign of error has just 446 days left; the bad news is 446 long days and nights left.

We echo the haunting words of former Vice President Cheney, who last April observed:

"If you had somebody as president who wanted to take America down, who wanted to fundamentally weaken our position in the world and reduce our capacity to influence events, turn our back on allies and encourage our adversaries, it would look exactly like what Barack Obama's doing."

Why the Iranian Regime’s Anti-Semitism Could Make Deterrence Ineffective

By George Will

Saturday, October 31, 2015

Yale historian Timothy Snyder is indebted to Israeli prime minister Benjamin Netanyahu, who recently made Snyder’s new book even more newsworthy than his extraordinary scholarship deserves to be. And Netanyahu is indebted to Snyder, whose theory of Hitler’s anti-Semitism is germane to two questions: Is the Iranian regime’s anti-Semitism rooted, as Hitler’s was, in a theory of history that demands genocide? If so, when Iran becomes a nuclear power, can it be deterred from its announced determination to destroy Israel?

Netanyahu recently asserted, again, that a Palestinian cleric was important in Hitler’s decision to murder European Jews. Netanyahu said that on November 28, 1941, when Hitler supposedly preferred to expel Europe’s Jews rather than exterminate them, Haj Amin al-Husseini, Grand Mufti of Jerusalem, met with Hitler and urged him to “burn them.”

Certainly the Mufti favored genocide; he certainly was not important in initiating it. Mass murder — the Holocaust — accompanied the German army, especially after the September 1939 outbreak of war, and especially after the June 1941 invasion of the Soviet Union. Granted, it was not until the January 1942 Wannsee Conference that the “final solution” became explicit. But by the time Hitler met the Mufti, approximately 700,000 Soviet Jews had been shot. Snyder, not Netanyahu, should be heeded concerning the Holocaust’s genesis.

Attempts to explain Hitler’s obsession with Jews began with the idea that he was unfathomable, a lunatic teppichfresser (carpet chewer). The comforting theory was that no theory can explain Hitler because he was inexplicable, a monster, a phenomenon without precedent or portent.

In 1996, however, Daniel Goldhagen’s book Hitler’s Willing Executioners: Ordinary Germans and the Holocaust argued that the explanation for the genocide was acculturation — centuries of German conditioning by the single idea of “eliminationist anti-Semitism.” This cognitive determinism reduced Hitler to a mere catalyst who unleashed a sick society’s cultural latency.

This drew a rejoinder from Christopher Browning, author of Ordinary Men (1992), a study of middle-aged German conscripts who became consenting participants in mass-murder police battalions in Poland. Browning noted that protracted socialization — centuries of conditioning — could not explain the Khmer Rouge’s murder of millions of Cambodians, or the slaughter of millions of Chinese during Mao’s Cultural Revolution.

What happened in those places proved the power of an idea — Marxism understood as a mandate to extirpate “false consciousness” — to legitimize, even mandate, mass murder. In Black Earth: The Holocaust as History and Warning, published in September, Snyder argues that the Holocaust’s origins have been hidden in plain sight, in ideas Hitler articulated in Mein Kampf and speeches.

Snyder presents a Hitler more troubling than a madman, a Hitler implementing the logic of a coherent worldview. His life was a single-minded response to an idea so radical that it rejected not only the entire tradition of political philosophy but the possibility of philosophy, which Hitler supplanted by zoology.

“In Hitler’s world,” Snyder writes, “the law of the jungle was the only law.” The immutable structure of life casts the various human races as separate species. Only races are real and they are locked in mutual and unassuageable enmity, in Hitler’s mindset, because life is constant struggle over scarcities — of land, food, and other necessities.

One group, however, poisoned the planet with another idea. To Hitler, says Snyder, “it was the Jew who told humans that they were above other animals, and had the capacity to decide their future for themselves.” To Hitler, “ethics as such was the error; the only morality was fidelity to race.” Hitler, who did not become a German citizen until eleven months before becoming Germany’s chancellor, was not a nationalist but a racialist who said “the highest goal of human beings” is not “the preservation of any given state or government, but the preservation of their kind.” And “all world-historical events are nothing more than the expression of the self-preservation drive of the races.”

Now, assume, reasonably, that Iran’s pursuit of a potentially genocidal weapon will not be seriously impeded by parchment barriers such as the recent nuclear agreement. And assume, prudently, that the Iranian regime means what it says about Jews and their “Zionist entity.”

Then apply Snyder’s warning: Ideas have consequences. The idea of anti-Semitism is uniquely durable and remarkably multiform. It can express a mentality that is disconnected, as in Hitler’s case, from calculations of national interest.

Yes, liberal media bias is real, and here's how it affected the CNBC debate

By Timothy P. Carney

Friday, October 30, 2015

Since the Republican presidential debate on Wednesday night, there's been plenty of sturm und drang about media bias. Republican candidates and conservative commentators have piled on the CNBC moderators for their questioning.

Many in the major media have responded with odd defenses, some claiming that there is no such thing as media bias, and that the Republican candidates were just upset about tough questioning.

This mainstream response is wrong, and the quicker my colleagues in the press come to terms with this, the better off everyone will be.

So, first a general point about the media's slant, then some specific points about the debate.

Yes, the mainstream media has a clear Leftward slant

It is almost incomprehensible to me and other conservatives that some in the media deny that there is a strong liberal bias in the mainstream media.

Here's CNN's Chris Cuomo dismissing the idea:

The New York Times, the Washington Post, CNN, NBC, CBS, ABC — the largest media outlets with the exception of Fox News — all slant clearly left. So do a vast majority of other major newspapers and magazines. I'm not talking about their opinion pages, but about their news operations.

I don't think it's deliberate, or that any collusion, deception, or bad intentions are at play, except in the rarest circumstances. I also think very highly of many of the journalists whose personal views are significantly to the Left of the American political center. Many of them do an excellent job of reporting the news fairly and trying to understand political viewpoints all around the spectrum.

But the vast majority of journalists at these major outlets are generally liberal, and this ends up slanting their coverage. Cuomo is a perfect example.

Cuomo's father was Democratic governor Mario Cuomo. His brother is Democratic governor Andrew Cuomo. Cuomo is a daytime host and reporter, not an explicitly liberal host, such as Piers Morgan or MSNBC's evening hosts.

This is the norm in the media: People with distinctively liberal or Democratic pedigrees and resumes are hired as straight news reporters (see Jake Tapper, Nick Confessore, Annie Lowrey, Alex Seitz-Wald, most of whom are excellent and fair journalists). In 2014, the Media Research center counted 30 former reporters as Obama officials. It's far, far rarer to find the opposite.

While Tapper, Confessore, and Lowrey do a very good job of making sure their coverage is fair, the norm in the major media is slanted coverage — slanted to the Left. For instance, Linda Greenhouse was long the Supreme Court correspondent for the New York Times, and now she's a liberal columnist about the Supreme Court whose factual errors consistently cut against the Right.

Reporters at the major outlets are almost entirely liberal on cultural issues. See the coverage of the gay marriage ruling, where the Supreme Court stretched the language of the Constitution to find that states couldn't limit marriage to heterosexual couples. The country seems to be split evenly on gay marriage, but the major media are nearly unanimous. I don't think this is really a matter of debate. In 2013, the Washington Post's ombudsman basically admitted as much, with even more revealing comments by anonymous Post reporters placing Christian teaching on marriage on the same level as racism.

You see it with abortion, too, where journalists always ask difficult abortion questions of pro-life politicians, and nearly never ask difficult abortion questions of pro-choice politicians.

But it's also true on questions of regulation, government spending and taxation. (I should add the media also has a very strong bias, which is neither liberal nor conservative, towards deficit reduction, which most journalists don't realize is a bias.) I could give a thousand examples, but one good one was from the New York Times reporter, Jonathan Weisman, who spent the most time on the Export-Import Bank at the time, making it clear he was totally unaware about conservatives' and libertarians' economic arguments against export subsidies, while he was well versed in the talking points of industry and the liberals.

I won't belabor the point that the press is biased to the Left, because it seems totally obvious and not really up for debate.

I think the bias stems not from a conspiracy or a desire to tilt the playing field, but from a cloistering effect, and a subsequent unfamiliarity with conservative arguments, which leads us to Wednesday's debate.

CNBC's bad debate

First off, many of the questions from CNBC moderators were appropriately tough and probing. Becky Quick tried to get Ben Carson to explain whether he would cut government enormously in order to make his low-rate flat tax work.

But many of the questions were weirdly hostile in their wording ("You've been a young man in a hurry ever since you won your first election in your 20s…" or, "Let's be honest. Is this a comic book version of a presidential campaign?"). This is not unique to a Republican debate — Hillary Clinton was asked a similarly pointless, "Will you say anything to get elected?"

The bias did show up in factual errors, such as Becky Quick premising a question on clearly false "working women in this country still earn just 77 percent of what men earn," that is traditionally waved around by the Left.

But remember, the nature of media's liberal bias is mostly this: they are themselves liberal, and they know very few conservatives, so they find it hard to see things from the conservative perspective.

As a result, the biggest manifestation of bias in the debate: Almost no questions were asked from a conservative perspective.

This is a debate for the Republican nomination. A clear majority of GOP primary voters identify as conservatives (84 percent in Iowa, 53 percent in New Hampshire, and 68 percent in South Carolina, for three examples). Why not ask of the candidates the sort of questions the voters would ask?

They could have asked Kasich: "Why did you increase Medicaid under Obamacare in Ohio?" They could have asked Trump, "How can eminent domain for corporate gain be squared with free-enterprise views?" They could have asked Rubio about sugar subsidies, or Cruz if his "defund Obamacare" fight did any good, or Jeb Bush about his support for more immigration. They could have asked Christie about his liberal court appointments.

They instead asked for price controls and regulations, they asked about the social compact in entitlement spendings, they asked why not to support budget-busting deals. Most questions were either non-ideological, and many were from a liberal perspective. When they asked about marijuana legalization it wasn't from an anti-drug perspective or a libertarian perspective, but a "more government revenue" perspective.

The only questions I could find, across two hours of debate, from even a remotely conservative perspective are these, and I was generous in my reading:

1) Harwood to Paul: "Do you oppose that budget deal because it doesn't cut those programs enough?"

2) Harwood kind of asked Kasich about his subsidies for Ohio companies, but it was really challenging Kasich for not agreeing with Obama on the Export-Import Bank.

3) Harwood asked Rubio about his desire to increase high-skilled labor.

4) Santelli to Carson: Why do you support ethanol subsidies?

5) Quick to Paul: Was Reagan right to oppose Medicaid?

And here was a very telling moment: When Carlos Quintanilla tried to ask a question from a conservative perspective, it was embarrassingly clumsy. Quintanilla pointed out that Carson served on the board of Costco which offered benefits to the same-sex partners of gay employees, and then asked "Why would you serve on a company whose policies seem to run counter to your views on homosexuality?"

He just assumed that someone who personally holds to a Christian idea of marriage and opposed the Supreme Court forcing gay marriage on states would distance himself from any business that chooses to acknowledge same-sex couples.

Conservatives are a foreign species to reporters. Some of the reporters treat conservatives with hostility, but usually, they end up just not getting us. As a result, we have a debate where most of the questions range from silly to irrelevant.