Saturday, May 9, 2015

The Strange Case of the Amnesiac Nation: Liberties Lost to Fading Memory

The Nation witnessed another terror attack this past weekend, here on our home soil. Unlike the successful attacks against the World Trade Center and the Pentagon, the attack failed fatally, with would-be Jihadis associated with ISIS dying in a hail of bullets, rather than disrupting or preventing the Inaugural Muhammad Art Exhibit and Contest.

In the aftermath of the failed attack, in a strange twist, numerous media outlets have turned their attention and focused their rhetoric on the purported "offensiveness" of the exhibit, rather than the criminality of the attempted attack. It strikes me as hypocritical for American media to fawn so over the religious sensibilities of those who object to cartoon depictions of a religious figure. The hypocrisy evidences itself when we examine the media for signs that they ever cared that symbols and representatives of more familiar religions here in America were subject to similar treatment.

Writers employ a broad variety of literary devices to tell their stories. Alfred Hitchcock, for example, often employed a device in his stories, that he called a McGuffin. McGuffins were items that were treated as quite important, papers of a secret nature in a spy thriller, or a brief case, for example. The items are only important, however, because those in the story treat them as such. Hitchcock often did not reveal what a particular McGuffin actually was. It might have been plans for a bomb or photographs of a delicate nature. His McGuffins simply served as a point of focus for plot development.

Another literary device comes to my mind today, the lost memory. Many versions of the lost memory have served writers as they tell stories. A lost memory allows a springing surprise. A lost memory can be used to teach. My two favorite uses of the lost memory device are found in an episode of Twilight Zone and an episode of the original Star Trek.

In "The After Hours," Rod Serling treats us to the story of a seemingly amnesiac young woman. Her lost memory, slowly hinted at, and shockingly revealed, is that she is only briefly alive but spends almost all her hours as a lifeless department store mannequin. Ann Francis portrayed the growing confusion and shocking realization of the horrifying truth perfectly.

A different, and longer, lost memory is at the center of "The Omega Glory" episode of Star Trek. In the episode, the Enterprise investigates a Starfleet ship orbiting Omega VI. Starfleet ordered the investigation because the ship, the Exeter, fell out of communication six months earlier. 

Captain Kirk and company, beaming down to the planet, find themselves in the midst of an extended war between the Yangs and Khoms. In captivity, Kirk uses the word, "freedom." When he does, one of the Yangs objects to his profane use of a Yang worship word.

Yangs and Khoms? Freedom?

Is the lost memory tickling your mind yet? Ultimately, Kirk discovers one of the Yangs' most revered and treasured ancient documents. He reads from it, and we discover that the Yangs are some sort of parallel universe descendants of an alternate America. The problem for the Yangs is that the words of their Constitution have obtained a talismanic quality. They revere the words, yet they do not understand them.

In episodes like "The After Hours" and "The Omega Glory," Serling and Roddenberry show that they realize the danger of forgetting from whence we come and who we are. These are important concerns, although their importance may depend, substantially, on those from whom we have descended. Here in America, we are the descendants of a hardy breed.

Our forebearers rejected George III's tyrannical monarchy. They threw off Parliament's unrepresentative imposition of taxes, and its imposition of arbitrary and capricious laws. Although the realization of it took time, they rejected even slavery.

I think Serling and Roddenberry hoped that their fascinating little tales would serve to keep us from losing something important. Unfortunately, media reporting and commentary this week on an event this past weekend leads me to be concerned that a destructive amnesia holds sway over our collective American consciousness.

On Saturday, May 2, 2015, in Garland, Texas, Pamela Geller and the American Freedom Defense Initiative hosted a provocative event.  That event -- the Inaugural Muhammad Art Exhibit and Contest -- put attendees and entrants at odds with a tenet of Islam. Under Islam, it is blasphemous to create images of Muhammad, the founder of the faith. 

Earlier this year, staff of the French satirical publication, Charlie Hebdo, paid in lives and blood for the offense of publishing cartoons portraying the prophet. One such cartoon, The Untouchables, No. 2, shown here, appeared on the cover of Charlie Hebdo. It shows the Prophet in a wheelchair, apparently being pushed by an Orthodox Jew.

Yemeni affiliates of al Qaeda claimed responsibility for the murderous rampage targeting Hebdo's Parisian office. Lest the murderous rampage of radical Islamists be forgotten, I include with this post an exterior photograph at the offices of Charlie Hebdo, showing crime scene investigators collecting evidence after the attack.

In contrast to that French crime scene, the photograph below shows the aftermath of an ISIS attack on the Garland, Texas, Art Exhibit and Contest. Do you notice the key difference between the two photographs? In the photograph from France, evidence about the murders of Hebdo cartoonists and staff is being gathered. In Texas, where one police officer was wounded and both ISIS-affiliated attackers were killed, evidence is being gathered. That reflects, probably, the good fortune and preparedness of those sponsoring the Garland event.

In the aftermath of the Garland affair, some ugly verbiage targeting Geller and her event has sprung up. The New York Daily News called her a "hatemonger." Larry Wilmore, of the Nightly Show, said Geller purveyed "bullshit." CNN International accused Geller of "subverting" American values. The Washington Post identified Geller as an "incendiary organizer." 

Moving from the electronic outlets of traditional journalism to the murkier end of the Internet, the name-calling gets heavier. Gothamist carried a commentary referring to Geller as "a notorious right-wing demagogue who has made a career out of stoking the Islamaphobic fears of Archie Bunker America." The Southern Poverty Law Center calls Geller an extremist. Yes, it can get worse, and it does. Plenty worse things are being said about her. If you are surprised that at the harsh names coming from news media and journalist, perhaps you haven't followed the descent of main stream media into a sewer of liberal bias.

Geller's decision to hold an event that she knew would be a likely source of offense marks her as an ideologue. What has made her so? Simply put, she has been transformed by the terror attacks on September 11, 2001. In the aftermath, Geller has devoted herself to warning of the dangers of radical Islam. 

Her efforts have been relentless. She appears in media regularly. Geller publishes blog posts. She has even written a book drawing connections between the rise of radical Islamic terror and the laissez-faire approach of the Obama administration to the Muslim Brotherhood and other militant Islamic radicals.

Geller seeks to focus the hot laser beam of public attention on what she considers to be the most dangerous threat to America today: radical Islam. She has witnessed the manner in which criticism of Islam in other nations has led to attacks by Islamists and to criticism by those she would characterize as appeasers. Consequently, she works to expose radical Islam's presence in the United States and its danger to our liberties. She seems, by all appearances, to be an ideologue.

In my experience, ideologues are, quite often, not terribly nice folks, not the kind of folks you invite to have tea and cakes when your elderly grandmother will be joining you for the day. If you think, though, that Geller is somehow different, more disturbing, more offensive than all the malcontents whose speech activities provide the backdrop for most of our great American doctrines on freedom of speech, then this entry is offered to dispel your delusion.

Faux Revulsion: The Limited Sensibilities of American Media to Offensive Portrayals of Religion and Religious Figures

Based on the bizarrely shocked reaction of media mavens to the Draw Mohammad event -- many of them were shocked, I tell you, shocked -- it is worth looking at the rather selective manner in which media bridles at speech offensive to religionists. It is also a good time to revisit First Amendment principles at stake in Geller's cartoon event.

Let's start with Charlie Hebdo. Perhaps it is unfair to pick on dead men, but Mohammad wasn't the only target of their childish, churlish lampooning of religion. I won't reproduce the cover here, but Hebdo portrayed the Trinity as a ménage a trois, an image you can see here. Oddly, during the press coverage following the massacre at Hebdo, the satire magazine's ongoing practice of revolting portrayals of Christ was never mentioned.

Poking fun at things, even religious things and religious people isn't an American thing. Probably it's a human thing. This week’s news also carried word of five Coptic teens being tried for profaning Islam because they made a video poking fun at ISIS (brave lads, since ISIS affiliates seem to specialize in beheading Egyptians).

But that poking does seem widespread. When the last pope visited Australia, a cartoonist lampooned that pope, and Australian Catholic hierarchy and its failings regarding sexual abuse of minors all in one particularly offensive cartoon, in which the cardinal is portrayed as a kangaroo, with a child in his pouch.

Back here in the USA, "The Book of Mormon" is an amusing and satirical view of the approach of young men to their call to the field of missions. The story is modestly complicated by the homosexual feelings of one of a pair of missionaries sent on their two year mission to war torn Uganda. The songs include several that are ribald, one that pokes holes straight through the Mormon faith. Perhaps you remember Brian Williams picketing the Eugene O'Neill Theater at its debut, because he thought it wrong to deliberately offend the religious sensibilities of a uniquely American religion. Well, maybe Brian remembers.

Or, perhaps you'll recall when Pope John Paul II called on Catholic faithful to hunt down and kill gay men that dressed as nuns, engaged publicly in lascivious behavior, and such? 

Of course you don't remember that happening. That's because, even with a fatwa being issued against Salmon Rushdie by Iran's current Supreme Ruler, Pope John Paul II did not then, or ever, use the cover of radical Islamic terror to conduct his own violent war against those that mocked Catholicism. I've included just one of dozens of photographs showing those deliberate offenses. Brian Williams remembers when a Catholic Bishop took down two of those faux nuns and carried them back to his cathedral on the hood of his Jimmy.

The truth is that attacking religion has been a long-standing staple in American media, going back to when the only picture in town was the editorial cartoon. These two samples are just lovely.

The first one shows a kind of Godzilla and Ghidra attack on religious liberty. What were the monsters? As you can see, they were Roman Catholicism and the Mormon Church. Yes, in fact, in the complete version of the cartoon, you can see Brian Williams getting ready to shoo the monsters away with a broom.

Thomas Nast gave us editorial cartoons sharpened to a sardonic point. But often he was as blunt as Chris Matthews' wits. Here, in one of his crudely blunt and xenophobic bits, he depicts a teacher protecting school children from crocodiles. Look closer. Those crocodiles are Catholic Bishops wearing their miters! Brian Williams mentioned in his nightly news cast that he suggested using editorial cartoons to warn America of the dangers of Catholicism, but he wasn't sure if Nast would follow through on it.

As a final offering, we should not forget the Vatican Rag, composed by comic lyrist Tom Lehrer. Here's a particularly respectful selection:

Notice that Lehrer managed to poke at key sacramental units of the Catholic faith: the sacraments of penance and the Holy Eucharist. Perhaps you recall how Walter Cronkite recoiled in horror when Lehrer performed the ditty? Yeah, neither do I.

So, please, NBC, CBS, ABC, Washington Post, New York Times, CNN, MSNBC, Fox News: shut up with your pretense of sensibility. You've dragged our sensibilities through every low end of life that served your purposes. We don't buy your re-virginized delicacy.

The True Purpose of the Constitutional Protection of the Right to Freedom of Speech is to Protect Speech that is Disagreeable, Offensive, Disturbing

Now as to that First Amendment about which reporters scream but news readers don't seem to care, let's start by laying down a fundamental principle. If you do not grasp this principle, then you will miss one of the true distinctives of American polity.

The First Amendment rights to freedom of speech and freedom of the press do not exist for the protection of birth announcements and friendly street-side greetings of passersby. "Fine day?" "Beautiful weather!" "Lovely baby!" These social lubricants require no special countenance or protection. Although many Americans may have lost their grasp on such niceties, that loss does not mean that anyone is targeting pleasant people for suppression of their views.

The First Amendment, while it does protect the inconsequential exchange of pleasantries, has a core purpose of protecting strong views starkly stated against stern opposition. I can prove this point out of the cases interpreting the First Amendment, and will do so in subsequent paragraphs. For now, just take stock of this key concept: the First Amendment rights of expression exist to guarantee the expression of unpleasant, unwanted speech.

I have written about this core purpose of the right to freedom of speech in connection with the recent incident at Valdosta State University involving Eric Sheppard, a student that led a protest on campus in which he and others stomped on the American flag to express outrage against "their oppressors." That blog is here.

Subsequent to that posting, it appears that Eric Sheppard has gone on the lam after it was discovered that he brought a concealed weapon to campus. Despite the cause of his having skipped town, there is now an "internet challenge" in "his honor." The Eric Sheppard challenge invites participants to show their support of for Sheppard by filming themselves stomping on the American flag. A quick search on YouTube shows that the calls has gotten some responses, though perhaps it is a good sign that there aren't hundreds of such videos ... yet.

Now, in case you were unaware of it, the act of stomping on the US flag has a tendency to provoke immediate, highly charged, emotion-laden reactions. As my blog entry above shows, sometimes the reaction is to rescue the flag from the defilers. Other reactions are, no less visceral, but much more verbal. 

I have seen threats of physical harm posted in response to some of these images. Yet, the First Amendment protects these expressions of disdain and hatred of this nation from suppression by federal and state governmental actors. The Supreme Court put it this way:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
Texas v. Johnson, 1989.
That treating the flag disrespectfully has been accorded protection under the First Amendment should not surprise students of the constitutional limits on the power of government to silence speech. In other cases, cases involving ugly verbal attacks on well-known American figures, protests critical of foreign embassies, threats, the Supreme Court has regularly reminded litigants that it is just the cost of doing business as an American to be exposed to upsetting and sometimes truly offensive expression from time to time:
As a general matter, we have indicated that, in public debate, our own citizens must tolerate insulting, and even outrageous, speech in order to provide "adequate ‘breathing space' to the freedoms protected by the First Amendment." Hustler Magazine, Inc. v. Falwell. See also e.g., New York Times Co. v. Sullivan. A "dignity" standard, like the "outrageousness" standard that we rejected in Hustler, is so inherently subjective that it would be inconsistent with "our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience." Hustler Magazine.
The First Amendment Shelters A Broad Variety of Harsh and Harmful Expression

Maybe, like me, watching A Christmas Story is part of your annual traditions. You might even be able to taste the soap in Ralphie’s mouth after he uttered the mother of all swear words. Remember the scene, when Ralphie got to help his dad change a flat for the first time, in the snow? He kicked the hubcap by accident and sent the lugnuts flying into the roadside piles of snow.

In a gentler time, the use of the word, “fuck” in public was punishable as a criminal offense. Today our culture may still frown on such language, but the Supreme Court has turned away prosecutions based on such language. In Cohen v. California, the Supreme Court overturned a conviction of a young man for “offensive conduct.” That conviction followed his arrest for wearing a jacket with the message, “Fuck the Draft” emblazoned on it. Cohen wore the jacket in a local courthouse.

Defending the statute, the State of California argued that their enforcement secured the decorum of courthouses, and protected unwilling viewers from exposure to his harsh language. The Supreme Court rejected the former argument, on protecting courthouse decorum, because the statute applied throughout the state, not just in courthouses. The Court rejected the latter argument because it had never held that the First Amendment was subject to a limitation on expression in public places of the sort at issue in the case. The Court concluded that those offended by “Fuck the Draft” on Cohen’s jacket could simply avert their gaze from his jacket.

And it is just that simple. In case after case, seemingly sincere, reasonable requests for a bit of space and bit of reduction in heat and fire, must be rejected because the First Amendment demands that the exercise of the right to freedom of speech be given substantial breathing room.

So, let’s look at what kinds of offensive expression have been shielded by the First Amendment from governmental suppression or punishment. I address that in some detail below, but briefly, speech that offends others is almost always protected against suppression when the reason for suppressing it is the fact that it does, or is intended to, cause offense. So regardless of personal pain and indignity caused, the First Amendment protects things like

  • burning flags, 
  • drawing ribald cartoons portraying a religious icon in an unflattering and comprised positions, 
  • casual conditional threats against the president, 
  • discussing the idea of communist or socialist revolutions here in America, 
  • speech and symbolic speech that antagonizes minorities such as Jews and blacks. 
Now some of these categories are flexible; the exact circumstances at the time of the speech or expressive activity can affect how First Amendment principles apply. Still, each of them, and others, are covered by the Supreme Court's construction of the First Amendment as solicitous of offensive speech.

Conditional threats to shoot the President

During the Vietnam War escalation by President Johnson, Robert Watts, then 18 years old, stated that if he was drafted into military service, the first person he wanted to get into the sights of his rifle was the President. Threatening the life of the President is a federal crime. Yet, in Watts v. United States, the Supreme Court
agree[d] with [Watts] that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Based on that conclusion, the Court reversed Watts' conviction.

Mere advocacy of criminal conduct:

Ohio, as many States, enacted a statute that addressed a rising tide of socialist and communist, even anarchist, activism, beginning late in the 19th century and carrying forward into the 20th Century. Ohio's “criminal syndicalism” statute made it a crime to advocate the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform, and to voluntarily assemble with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. 

Brandburg, a member and leader of an Ohio Ku Klux Klan organization, gave a speech at a Klan rally. News media covered the speech. Brandburg decried what he perceived to be the decline in American culture. He spoke of the possibility of future acts of "revenge."

The Supreme Court held that Brandburg's conviction for his speech, in the circumstances, violated his constitutional right to freedom of speech. The Klan held its rally at a time and location distant from any opportunity to actually inflict the harms to which Brandburg adverted in his speech. Because the Ohio Act could reach both such instances of mere advocacy as Brandburg's speech as well as speech that actually was likely to provoke imminent lawless action, the statute too broad to satisfy constitutional requirements. The key point of the case, then, is that even speech calling for lawless conduct enjoys at least some measure of constitutional protection.

Provocative speech that might breach the peace:

Illinois, like virtually all States, prohibits acts that breach the peace. The crime of "breach of peace" is an artifact of our English common law tradition. In Illinois, a breach of peace consists of any 'misbehavior which violates the public peace and decorum' if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.

Police charged Terminello with breach of peace, and a jury convicted him. Terminello's offense consisted of a speech given inside an auditorium; the unrest that occurred took place outside the auditorium and consisted of actions by those opposed to Terminello and his views.

The Supreme Court overturned Terminello's conviction. The Court stated that a key 
function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. 
In circumstances such as the Chicago Police faced during Terminello's event, the correct path, the one the police didn't follow, was to have arrested those responding to Terminello's event and message with unlawful conduct. The Court never disputed that Terminello’s speech was provocative. 

Speech supporting the Communist Party:

Under a law much like the Ohio Criminal Syndicalism statute in Brandenburg, Oregon prosecuted DeJonge following his participation in a meeting of the Communist Party. DeJonge had given a speech supporting the Communist Party, unions, an ongoing strike, and suggesting the purchase of Communist Party materials. He never specifically called for the overthrow of the government. The Supreme Court held that DeJonge should not have been convicted because of his speech activities, none of which were themselves, illegal.

Flag burning:

As I explained in the previously mentioned blog post, "[i]n two separate decisions, Texas v. Johnson (Texas statute prohibiting flag burning) and United States v. Eichmann (federal statute prohibiting flag burning), the Court -- while recognizing that such acts are profoundly offensive to many -- concluded that the expressive elements often present in acts of protest that destroy our National standard warranted protection from GOVERNMENTAL interference in the form of a flag burning prohibition." The Court understood that vandalism of the flag was highly offensive, but still concluded, "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. [] Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."

Parading through a Jewish community dressed as Nazis:

Millions of Americans fought, and about a half million Americans died warring against the Socialists of Nazi Germany and Italy, and the Imperialists of Japan. Given the cost in men and materiel, who could fault an America that denied the right to freedom of speech to those who expressed unfounded admiration and respect for Adolph Hitler? Yet, given the opportunity, we didn’t.

Americans enamored with Adolf Hitler and his National Socialist movement planned to conduct a march, dressed in Nazi uniforms, on a street in a predominantly Jewish Chicago suburb, Skokie. Skokie officials denied a permit needed by the Nazis for their parade. In National Socialist Party v. Skokie, the Supreme Court concluded that denial of the permit constituted a prior restraint on freedom of speech. 

Targeted Hate Speech:

St. Paul, Minnesota, passed a bias crime ordinance. It prohibited displays of symbols that "arouse[d] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." R.A.V., a teenager, and some associates in crime, burned a cross in the yard of a black family. Although charged under the bias crime ordinance, the trial court dismissed the charge. R.A.V.'s burning of a cross fell within a narrow category of "racial, religious, or gender-specific symbols" such as "a burning cross, Nazi swastika or other instrumentality of like import"  the display of which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."

Although the Supreme Court affirmed the trial court's conclusion that prosecution of R.A.V. had to be dismissed, no majority of the Court joined in an opinion adopting a controlling rationale. Nonetheless, the rule from R.A.V. prohibits creating a bias based crime under the Constitution, thus leaving individuals free to burn crosses, at least in certain circumstances.

Speech that inflicts emotional distress:

There are times when individuals, even families, are particularly fragile and prone to harm. At the time of a death in the family, the funeral and burial, that fragility is unsurprisingly heightened. A virulent pustule -- the Westboro Baptist Church -- has taken advantage of such circumstances in a gross and perverted effort to spread its views.

The funerals of American soldiers killed in action, and of celebrities, and of persons he suspected died from AIDS, have all been subjected to picketing by the human boil known as Fred Phelps along with his ragtag band of supporters. While doing so, they carried signs with such messages as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” 

In response to the offensiveness and hurt that such picketing inflicted on the family of one soldier, the grieving father sued Phelps, his daughters and their church under state personal injury laws. A trial jury awarded millions in compensatory and punitive damages to the grieving family. In Snyder v. Phelps, the Supreme Court overturned the jury verdict. 

Relying on its own prior decisions, the Court explained “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Here, the display of signs celebrating the war death of an American soldier occurred close to the route of the Snyder funeral procession. Phelps & Co., however, conducted their demonstration on public property typically associated with the right to demonstrate and picket. 

Reaching its decision overturning the damages judgment, the Court explained the danger to expression bound up in juries being invited to assess damages based on notions of offensiveness of speech:

In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t]’” expression. Bose Corp., []. Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, []. What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous. 

Lying about receiving the Congressional Medal of Honor:

In United States v. Alvarez, in 2012, the Supreme Court held that the Stolen Valor Act was unconstitutional. Alvarez had been convicted by a federal trial court for the Stolen Valor Act violation because he publicly misrepresented that he was a recipient of the Congressional Medal of Honor, our Nation's highest military award.

As Justice Kennedy explained, in his introduction to the case:
Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.
Defending the Stolen Valor Act, and seeking to reinstate Alvarez's conviction, the federal government argued that the Court should respect the significance to the system of military service in the United States, and the important role of military honors and distinctions built on it. (As I have explained in another post, being exposed as having wrongly claimed the right to wear a military service medal induced such pain and embarrassment that Admiral Jeremy Boorda, when discovered, took his own life with a gun.)

Although a majority could not agree on the legal basis for their conclusion, a majority of the Court affirmed the judgment of the court of appeals that the Stolen Valor Act was unconstitutional. 

Faux Offense in the Media Might Just Be a Case of Curable Stupidity

Chris Cuomo, the CNN news reader, had barely gotten out of his last gaffe (where he demonstrated his woeful ignorance of the Declaration of Independence’s assertion that our natural rights come from God), when he felt the need to chime in on Twitter regarding the Geller event, the failed Radical Islamist attack in Garland. His tweet:

Cuomo, who graduated from law school, should have known better. The law is subtle and nuanced. If he had simply said, "sometimes, in special circumstances, hate speech might not enjoy constitutional protection," he would have been closer to truth. And, being closer to the truth, he might not have suffered such thorough vilification.

It is, then, a small wonder that lesser lights in the media, ones untrained in the law, think that offensiveness of speech is somehow equated with the propriety of its suppression. Under a liberty construct, such as has been our heritage and tradition for over two centuries, the fact that speech offends does not strip it of its protected character. So, as it turns out, it was entirely within Geller’s right to take full advantage of her right to freedom of speech in Garland, Texas.