Heckling Jekyll: Silencing Disliked Speech Does Not Enhance Liberty

                Suppose you have an opinion, one about which you care deeply, one that you believe to be the product of thorough study, careful consideration, one that you believe is supported by a rash of objective data. Yet, at the same time, suppose that I, too, have an opinion, one contrary to yours, yet in respect to my devotion to my opinion, one I am satisfied is the product of thorough study, careful consideration, and is supported by a rash of objective data.

                In a free market, we each may propagate our ideas. You, you svelte raconteur, you garner attention seemingly without even trying. I, bald, loathed by former colleagues and friends, in many ways a broken man, I hold my opinion as dear, but I cannot gain a foothold in the public conversation to successfully propagate my opinion. In an ideal world, we would just continue conversing, doing what we could to succeed in spreading the word.

                As events at recent Trump 2016 rallies proves, we do not live in an ideal world. Black Lives Matter activists, Bernie Sanders supporters, and other malcontents, have sought to ARREST the voices with which they disagree, to subjugate the holders of opinions divergent from their own. Today, in Arizona, a highway is blocked by cars, and in some cases, by human bodies cable locked to those cars, to prevent individuals from making the trip to a Trump 2016 rally.

                Brave new world indeed!

                When the tantrums takes these shapes, one harbors fading hope only that the watching populace will realize the Stalinist-Maoist mentality of these folks and reject their decision that the conversation they dislike is the conversation they must silence.

                What these malefactors are actually attempting has a name in the law, other than the names for the various crimes they are committing to accomplish their goal. That name is the “heckler’s veto.”

                The heckler’s veto.

                You’ve probably seen the scene in a movie or television show before. A comic is performing a routine. Someone in the audience catcalls, criticizes. They don’t like the jokes, they interrupt, they insult. A good comic turns the moment into comedic gold. Maybe the heckler has a bulbous nose, or three empty martini glasses in front of her, or is wearing a striped shirt with their plaid sport coat. The merciless riposte serves to liven a weak pattering routine, win the audience’s amused applause, etc etc etc.

                That’s Hollywood.

                The heckler’s veto in real life is, or can be, quite different.

                For example, in 1990, the Ku Klux Klan announced its intention to march to the United States Capitol. Now, Washington, DC, has a long history of playing host to protests and demonstrations. As a federal constitutional lawyer, I have litigated the First Amendment right to the use of the streets, sidewalks and parks in the Nation’s Capital for a quarter century. But when the Klan announced its intention to return to the Capitol, even the Capital’s well-trained policing agencies knew that trouble would follow.

                In fact, the Klan had to go to court to insure its right to conduct the march at all. The City did not want to play host to the debacle … not of the Klan marching but to the repeat of riots that had occurred when the Klan last marched in DC in the early 1980s. Then, and in 1990, the City knew that the Klan would not riot, pillage, break windows, or loot stores. That criminality was the special expertise of anti-Klan protesters, who used the excuse of the insult of the Klan’s presence to justify their wreck and ruin of local businesses. So the City did not want the Klan to march, undoubtedly because the Klan’s philosophy and history is odious, but also because the opponents of the Klan had inflicted serious damage to the city before and were threatening to do so again.

                So, the City of Washington, DC, which preferred not to be laid waste yet again as had been done to it by the British in 1812 and by the race riots following the assassination of Martin Luther King, Jr., took the position that it could deny a permit to the Klan in order to preserve peace and good order.

            Had the matter stood so, the heckler’s veto would have been given full force and effect. The anti-Klan crowd would have succeeded in terrorizing a city’s policing officials and government into submission, into tools to silence the opinion with which they disagreed. The matter came to a federal court, however, and the City was ordered to issue the required permit for the march.

                You can read about the actual incident of the day in this Los Angeles Times report. http://articles.latimes.com/1990-09-03/news/mn-1527_1_police-officers

                The thing of it is, we might all agree that the Klan is odious, hateful, and misbegotten. Even Democrats, who founded and populate the Klan, have come to the view. But there is a difference between a society that suppresses the expression of ideas through terrorist threats of harm, and one that counters odious opinions with truth.

                The Supreme Court’s modern doctrinal interpretation of the First Amendment has always obliged government officers and agencies not to give effect to a heckler’s veto. Put another way, the Supreme Court, in a series of cases, has refused to countenance decisions by cities to refuse permits, or prosecute speakers, out of fear for, or in response to, disapprobation of the speaker’s opinions, even violent disapprobation.

                The Heckler’s Veto cases extend back to the early part of the 20^th Century.

                In response to the spread of socialism in Europe, and the supposed threat of its spread in America, many States adopted statutes prohibiting “criminal syndicalism.” Oregon had adopted a “criminal syndicalism” statute that formed the basis of a prosecution in a case decided by the Supreme Court, DeJonge v. Oregon. The Oregon statute defined “criminal syndicalism” as, “the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” In DeJonge, however, the State of Oregon prosecuted DeJonge for the conduct of a public meeting that discussed ideas for social change. The State never even alleged that DeJonge called for crime, physical violence, sabotage, or other unlawful acts.

                The Supreme Court overturned DeJonge’s conviction. While the Supreme Court left intact the important State interests in protecting the People of Oregon from “criminal syndicalism” in the form of such crime, violence, sabotage, or revolution, it stripped Oregon of the power to make ordinary instances of the right to peaceable assembly and free speech the organic components of such crimes. The Court put it this way:

The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions -- principles which the Fourteenth Amendment embodies in the general terms of its due process clause. [] These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people, through their legislatures may protect themselves against that abuse. But the legislative intervention, can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held, but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.

Now, DeJonge is not, strictly speaking, a Heckler’s Veto case. In DeJonge, the "heckler" was the State of Oregon, seeking not only to suppress the criminal syndicalism legitimately prohibited by law, but also speech with which it disagreed. In the Heckler’s Veto cases, some private citizens take exception to the ideas and expression of other private citizens. The exception they take, however, is exhibited in various kinds of intimidating and even criminal tactics: disruption of public meetings, obstructing public ways, and, of course, as with the 1990s Klan march in Washington, DC, outright threats and crimes.

In Feiner v. New York, the Supreme Court upheld a incitement to riot conviction. In the case, Feiner was addressing a crowd, calling on blacks to take up arms, and heaping insults on local government officials. The crowd became boisterous and the police perceived the danger of an ensuing riot. Important to the case as decided by the Supreme Court was Feiner’s advocacy of violence in a context where violence appeared about to result.

Other cases have fleshed out the Heckler’s Veto, and have clarified that governments cannot base their decisions about the right to express unpopular or unwelcome views based on auditors’ objections to the message. For example, in Glasson v. City of Louisville, a policeman took a sign from a protester and tore it up. The standing order for an event in which then-President Nixon was visiting the City directed police to “destroy any sign or poster that was ‘detrimental’ or ‘injurious’ to the President....”

The idea that one’s right to speak one’s mind would be suppressed because it was “detrimental” to or “injurious” to a governmental official ought to have raised the hackles on those familiar with colonial agitation against King George III and Parliament here in the British colonies. Sure, there was that brief and torrid affair the Federalist Congress had with something called the Alien and Sedition Acts, but in the main, doctrinally, we have seemed to have understood that the key purpose of the First Amendment was, not so much to protect the right to dance about naked covered with chocolate and bean sprouts, to protect core speech directed to the governance of this Nation and its policies and its officers.

Thus, in Glasson, the Supreme Court warned:

A police officer has the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling mob intent on suppressing ideas. Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.

            The Glasson Court found that the police “exhibit[ed] shocking disregard” of the protester’s “right to have her person and property protected by the state from violence at the hands of persons in disagreement with her ideas.” That principle – police should address threats of crime and violence by targeting those that make such threats or carry them into action, rather than by silencing speech – is the essence of the Heckler’s Veto doctrine.

                And the Heckler’s Veto doctrine carries out beyond the action on the streets.

                In Nationalist Movement v. Forsyth County, the Supreme Court rejected Forsyth County, Georgia’s use of a sliding scale for calculating the cost of demonstration permit fees; the sliding scale allowed on governmental officials’ perceptions about how popular/acceptable or unpopular/objectionable to determine how much such permits might cost to obtain. In cases, for example, where groups like the Klan would march in DC, or like the Nazis would march in Skokie, or civil rights demonstrators would march in Forsyth County, perceptions of unpopularity could result in the imposition of prohibitively expensive permit fees. The Court held, “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”

At the far end of the spectrum, the Supreme Court has left space for exigent circumstances threatening such violence, and so beyond the ability of government to temporize and ameliorate that rule of not giving effect to a Heckler’s Veto can give place to a rule of insuring public safety:  “[T]he law does not expect or require them to defend the right of a speaker to address a hostile audience, however large and intemperate, when to do so would unreasonably subject them to violent retaliation and physical injury.”

Events continue to unfold during this 2016 campaign season.

In Arizona today, a highway has been blocked. Elsewhere, opponents of Donald Trump’s campaign infiltrate his rallies and seek to disrupt them vocally. At the present time, the level of threat of harm and public disruption seems eminently resolvable by normal policing tactics such as removing those that disrupt public meetings, and arresting those that block roadways. As we press forward through this silly season, we would all do well to remember that ideas have a way of sorting themselves out over time. Killing ideas by killing the liberty to express them has proven terribly ineffective. In fact, most of the course of modern history proves that a sure way to propagate an idea is to involve the government in suppressing it. Rather than trying to silence Trump or Sanders, the better path is more ideas, more conversation, more truth.

Mizzou Cops: Be a Hero, Report Speech that Offends You

Don't like Christmas?

Sue your local town for their display. That'll teach them.

Don't like that Christian baker's stand on gay marriage?

Send a test couple in and have them try to order a gay wedding cake, then report their refusal to your local or state human rights commission. That'll teach them.

Don't like letters to your campus newspaper casting aspersions on the notion of "white privilege?"

Complain to your campus administration, see if you can get disciplinary action against a student that uses grade level appropriate vocabulary, writes in a style consistent with recognized rules of grammar, simply because of the idea he expresses, that "white privilege" is a fallacious narrative that dismisses the efforts of those who supposedly enjoy "white privilege" and ignores the failures of those who do not enjoy that same privilege to grapple with other causes of their underprivileged state (such as the fractured brokenness of families in certain ethnic groups).

This year does seem to be the climactic crescendo of butt-hurt gripery. 

And now, because nothing says "you've gone too far now" like calling out the goons, the campus doughnut gatherers at the University of Missouri are inviting students to report speech that is "hurtful" or "offensive."

Really?

Hey Captain Krispy Kreme, what about the First Amendment? 

What about its role in drawing lines between private speech and government actions responding to speech and speakers?

We may be witnessing one of those crystalizing moments in a culture, when it becomes clear that things cannot continue as they have been.

There are so many "disaffected" folks today. From those upset at the absence of decorations on cups to those upset when a false rape story is exposed as a false rape story to those upset when you white folk wonder just what the hell you're "white privilege" actually gets you, like if maybe you could use it to get a Frosty for free at Wendys.

The very popular meme, 2015, the year when everybody was offended by everything, pretty much tells the tale. Part of that reflects, I suspect, real instances of pain and hurt. I would think, for example, that joking about gas ovens would offend today's grand- and great-grandchildren of Holocaust victims and survivors, and intimidate them with the implication that the underlying Antisemitism of another era really went skin deep and not away. Still, in this country, the right to be unoffended is guaranteed by the right to move on down the road, use earplugs, avert your eyes, or stay away from offensive people. It is not protected by a right to have government agents and agencies threaten, coerce, or intimidate those who express offensive ideas.

You can get a perspective on why offensive speech is protected here. That's the ACLU's take on the subject. I think you're going to be hard-pressed to find "racists" in that lot. And their underlying point, that protecting offensive speech is necessary to the defense of all free speech, is, frankly, unimpeachable. A brief excerpt from that page is worth the read:

Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech -- not less -- is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance. 

Justice Oliver Wendell Holmes, in a fictional dialogue with a divinity student, said a thing that is startlingly true, as true now as when he wrote the words: "The very aim and end of our institutions is just this: that we may think what we like and say what we think."

Apparently not so, at least not so at the University of Missouri, or at least not so if the glazed crusaders of the campus succeed in settling a blanket of fear over the minds and mouths of students that otherwise ought to be engaging in lively exchanges of ideas and opinions on a public college campus.

This political correctness is more so a campus disease, although the pretenders to offense have been around for a long time and have, like Thomas Jefferson's "sappers and miners," been working away at the undermining of absolute liberty of speech and opinion. 

I suppose one explanation for the prevalence of such gripery on campus is the unfortunate convergence of the unformed minds of youth with the misformed minds of Prog-Libs. In any event, as this report from FIRE, the Foundation for Individual Rights in Education, demonstrates, the problem of coercive speech codes is real, and, unfortunately spreading. 

The tale of the abuse of Mike Adams, a professor at the University of North Carolina-Wilmington (my college alma mater, no less) illustrates how Prog-Libs work to eliminate competing voices and ideas. Here's a link where you can follow his story, one in which he ultimately prevailed over UNC-W. Professor Adams enjoys pretty good ratings from his students (as evidenced by his RateMyProfessor page here). And he's had a resurgence in news coverage due to an EPIC introductory lecture in which he questions the mental capacity of individuals that reach such conclusions as finding an Establishment Clause violation in the paraphrasing of the Declaration of Independence.

I admit entertaining a perverse hope that some sugar addled Campus Blart responds to a report of speech hurt by overstepping her boundaries and arresting some misguided Republican or Libertarian, some benighted soul suffering under a delusion that the public university of their State was set up for the education of all, rather than the education of preferred opinion-holders. And then, when that happens, I hope the poor student drops a dime on the cop and gets some quality legal representation to sue her jelly donut laden butt into the poor house.

In the meantime, it's time for folks to call these speech codes and their fans what they are: illiberal policies enforced by thin skinned tyrants.

Enjoy Your Rights ... But Only One at a Time?

Your State's Constitution protects you from a variety of police and prosecutorial infringements on your natural rights to life, liberty and property. The US Constitution's Bill of Rights -- containing like provisions, many based on then-existing State constitutional provisions -- does the same.

Notice that I did not say that these documents grant rights to you.

Instead, those that drafted them, those that adopted them, those men knew that the source of our rights could not be the shifting and uncertain basis that a grant of permission constitutes. Rather, as Jefferson wrote in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Equally important, as the emphasis always seems to make its way to the three rights stated -- life, liberty, pursuit of happiness -- those men did not consider that we are endowed with just those three rights. The text states, "among these are" the particular rights asserted. Odd language indeed if our natural rights were understood by the framers of our Nation to be limited to just the right to live, the right to be free, and the right to seek happiness. Still, even a cramped view of our rights -- an unfortunate perspective too often seemingly held by governments and government agents -- suggests that more is at stake than merely being allowed to remain alive, at large, and in pursuit of happiness.

So, as suggested above, many of these rights are recognized in State Constitutions and in the US Constitution by inclusion of restrictions on the power of government, limitations on what the government and its agents may do to citizens.

For example, if police learn from a "confidential informant" that you are growing marijuana in your basement, they do NOT get to bust down your doors and search for those plants UNLESS THEY FIRST OBTAIN A WARRANT to search. That warrant must be specific as to the places to be searched and the items or persons to be seized. If the police then execute on the warrant, and find 20 pot plants, they will seize them, and likely developments include your arrest and probable indictment for manufacture for sale or distribution of a controlled substance. If you are *****indicted*****, you have the right to counsel, you have the right to confront witnesses against you, you have the right to a jury of your peers.

Now, to get to the point of this post, imagine -- on that first day you appear in court -- if the court asked you to stand up and said the following to you:

Mr Jones, the State and Federal Constitution guarantee you a broad variety of rights in a criminal prosecution. For example, you have the right to an attorney, like Ms. Smith there with you. You have a right to a speedy trial, and if you exercise that right, we'll get you right on the calendar. You have the right to a jury trial, by a jury of your peers. Oddly, though, there is nothing in either the State Constitution or the Federal one that says you get to enjoy all those rights at the same time. So, for purposes of this charge, do you prefer to be represented by an attorney, or do you prefer to have a jury trial?

Sounds improbable, right?

Since when are your rights, you might think, subject to a sort of "one per customer" rule like might be imposed by a department store for any of its Black Friday loss-leader promotions. "Oh yes, we do have a 60" flat screen television for $299.99, but quantities are limited, and only one television set per customer!" Those who framed our Declaration and Constitutions would cringe at the thought that the government could say to you, "Oh yes, we do have constitutional rights to freedom of speech, press, assembly, religion, and the like, but quantities are limited, and only one per customer."

Yet, the same State and federal constitutions guarantee both the freedoms of speech, peaceable assembly, and press, on one hand, and the right to keep and bear arms, on the other hand. So how is it that government agents, particularly police, think that if you are demonstrating -- in other words, exercising your right to freedom of speech, of assembly -- you cannot be armed and, if you're armed, you cannot be demonstrating?

One right at a time? Quantities limited?

Says who?

The Rutherford Institute is a nonprofit, public interest legal organization. Thirty years ago, I was a client of theirs.  In one of their recent cases, the Institute defeated a motion to dismiss a lawsuit, in a case that brings to public eye that niggardly approach of government agents toward the existence of, and enjoyment of, "supremely precious" and "important" but "delicate" constitutional rights.

Rutherford attorneys represent Brandon Howard. The Institute's website includes this description of the incident leading to the lawsuit:

On Monday, Aug. 26, 2013, Brandon Howard arrived at an overpass above Interstate 295 in the City of Hopewell, Va., and displayed a 6 foot by 4 foot sign that read “Impeach Obama.” Howard was carrying a DMTS Panther Arms AR-15 rifle slung over his shoulder on a strap, and a .380 caliber Bersa Thunder sidearm pistol in a belted holster on his waist. Howard lawfully owned each firearm and did not point or brandish them at any time while engaged in his First Amendment protest activity on the overpass. Howard displayed his protest sign for 30 minutes, but Howard did not directly engage with anyone. 

At about 5:30 p.m., a police officer pulled up to the area, remained in his car and observed Howard. Thereafter, three to five additional police cruisers arrived at the scene with emergency lights engaged.  Approximately eight officers exited these vehicles with their guns drawn and ordered Howard to drop his sign and get on the ground with his hands spread above his head. Howard complied with the officers’ orders. 

Despite the fact that Howard at no time made any threatening action toward the officers or anyone else, one police officer allegedly asked Howard, “What do you think you are doing threatening people on my interstate?” Howard explained that he had not threatened anyone but was simply exercising his First and Second amendment rights. Howard was then handcuffed and transported to the police station, where he was left, handcuffed, in an interrogation room for 90 minutes, after which time he had his firearms returned and was released. 

A month later, the Deputy Chief of Police acknowledged in writing that an internal investigation had concluded that one of the officers violated department policy and would be disciplined and sent to remedial training.

To clarify the ruling recently obtained, the Court refused a request (a motion) by the Defendant, Officer Hunter, to throw Howard's case out on the basis that Howard's lawsuit did not state any legally recognized basis for him to prevail over the police officer. The Institute identified Hunter as the police official that accused Hunter of threatening people, and who asserted that the overpass where Howard demonstrated was, "his overpass."

The Hopewell Police Department, whose officer is the defendant, has publicly acknowledged the error of its officers' conduct, and directed the officer to have remedial training.

Camels might apologize for sticking their nose under your tent flap. It is a hopeful sign when the involved agency quickly acts to rectify wrongs done. But the slap on the nose is the better lesson, and the Rutherford Institute's lawsuit is the better lesson too.

Some reading this post may think Howard was "out of bounds" bringing firepower to his demonstration. They may assert that other incidents of violence at the hands of criminals justifies treating those against whom no reasonable basis of suspicion that they have done wrong, or that they are contemplating doing wrong, as though they too are criminals. For any readers of such mind, I bring this post back to the opening considerations.

There is, no less in the enjoyment of our natural rights than in life, a kind of continuity, a circle, if you will, of rights. Just as the circle of life can be disrupted by ill-motivated actors and ignorant ones, the circle or continuity of our rights is, because it is both "supremely important" and extremely delicate, in want of constant, careful attention. With their representation of Mr. Howard, and their vindication thus far of his rights, the attorneys for the Rutherford Institute are proving themselves diligent and effective advocates for our natural rights.

September 11, The Day the First Amendment Died

Some folks will think of this date as the day American government officials conspired to draw America into international conflicts by killing nearly 3,000 of their own.I've watched several of the "inside job" conspiracy videos and have not found anything credible. I am open to being convinced.

Yet, as a federal constitutional law and civil rights attorney, I understand, and hope you will, how badly damaged our Nation was -- above and beyond the death toll -- in the exercise of our civil rights and liberties.

Not only did the Patriot Act authorize the continuing and increasing surveillance of Americans (lest my Republican friends think I'm blaming all this activity on Bush, lest my Democrat friends think that they are off the hook, you should read up on the Clinton era Carnivore and Echelon programs, which you can do starting at pages such as this one), the claimed need to protect government officials led to the adoption of rules by the US Marshal's Service, the Secret Service, the Supreme Court police, and other federal policing agencies, that resulted in removing peaceful demonstrators from the line of sight of government officials attending public events.

For example, Reverend Patrick Mahoney​, my long time client, and several others, were arrested when they engaged in prayer and the display of signs on the public sidewalk across from the entrance to the Cathedral of St. Matthew, in Washington, DC, on the morning of the annual Red Mass. You can read the decidedly constitution-free decision of Judge Royce Lamberth in which Mahoney's pleas for respect for the freedom of speech fall on security-deafened ears here.

Mahoney began his vigils on Red Mass mornings to communicate his concern over the banning of Ten Commandments. The immediate concern he addressed was the incident in which Justice Roy Moore of the Alabama Supreme Court placed such a monument in the rotunda of that State's Supreme Court. In the post 9/11 era, the Supreme Court police and the Secret Service created giant, city-block sized "speech free" zones.

Within those zones, individuals could walk, talk, ride bikes, walk dogs, drink coffee, wait for buses, make phone calls, wave to friends, hail cabs, and all the other typical and expected human behaviors of daily life in an urban setting. BUT WHAT THEY COULD NOT DO is seek to communicate a message on what they considered to be an important public issue to government officials passing through the "speech free zone."

To communicate, Reverend Mahoney and others had to move out of the exclusion zone, away from lines of sight of government officials, and stay within a holding "pen" like they were stockyard bound livestock. While the bulk of my post 9/11 experience with government restrictions on free speech involved cases of religious speech or pro-life speech, the ACLU also cataloged the deleterious impact of the government's unflinching assertion of security interests on core political speech activities too.

So, yes, I mourn the lives lost.

But more so, I mourn that the meaning of those lives lost is disregard for our essential liberties by the courts, the police, and government officials.

The War Between the States Isn't Over ... Next, We Face A Monumental Question

 As we move deeper into the battle over the display of Confederate flags, the maintenance of statuary and other memorials honoring Confederate dead, we can pretend that we are entering into uncharted waters, and have no way to plumb the depths of disruption that permitting the battle to proceed will entail.

Or, we can examine the history of thirty years persistent and unending attacks by groups such as the Freedom From Religion Foundation, the American Civil Liberties Union, and, yes, Westboro Baptist Church on public displays of monuments depicting the Ten Commandments. If we choose to study the past, we may not be condemned to relive it through this latest iteration of attacks on our common, and yes, dare I say it, Judeo-Christian heritage.

There has been a Thirty Years War on Ten Commandments displays in public places. The public notoriety of that War arose with the Supreme Court’s decision finding unconstitutional a statute requiring the posting of the Ten Commandments on the walls of every classroom, in every school building, in every school district in the Commonwealth of Kentucky. Then, in Stone v. Graham, a 1980 decision of the Supreme Court, the Court, in an unsigned opinion, concluded that the intended result of the ubiquity of the displays of the Commandments was disconnected from any legitimate pedagogical purpose.

That observation compelled the Court to conclude that the statute violated one of the tests the Court uses to measure whether government actions violate the constitutional prohibition against Establishments of Religion. The Court’s decision did not, however, project an absolute prohibition on all possible public displays of the Ten Commandments. Rather, the Court relied on the absence of a pedagogical purpose in the pervasive display:

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. [] Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commanadments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

Subsequently, many cases have been brought in trial courts, and numerous appeals heard by the federal courts of appeal, on issues related to public displays of the Ten Commandments.

At the Supreme Court, however, the issue has only recurred in three additional cases. In one case, McCreary County v. ACLU, the Court concluded that a display of the Ten Commandments as part of an interior display in a public building violated the Establishment Clause. In the other two cases, the Court’s decisions permitted the continuation of the displays. In Van Orden v. Perry, the Ten Commandments were depicted on a public monument on display on the State Capitol grounds in Austin, Texas. In Pleasant Grove City v. Summum, the Ten Commandments were depicted on a monument in a city park.

Pleasant Grove City v. Summum is a case with which I am quite familiar due to my role as co-counsel for the City in their case at the Supreme Court.

During the skirmishes over the public display of monuments containing depictions of the Ten Commandments, I provided research and editing assistance to my learned co-counsel, Walter M. Weber when we were representing Pleasant Grove City, Utah. Back then, Pleasant Grove City, had been ordered by the US Court of Appeals for the Tenth Circuit in Denver, Colorado, to immediately allow a religious organization, Summum, to erect a monument in the City's Pioneer Park. The Tenth Circuit's decision proceeded from its determination that the particular park was a "traditional public forum," and that another monument, depicting the Ten Commandments, was a private monument that the City had allowed to be placed in the park.

I have published a brief guide to the right to free speech in public places elsewhere, and it explains the idea of the public forum in a bit more detail. For present purposes, the appeals court's decision that Pioneer Park was a "traditional public forum" simply meant (a) it was the kind of publicly owned property were we expect and often encounter others engaged in expressive activities and (b) the government's ability to restrict speech in the location is severely limited. The Tenth Circuit ordered our client, Pleasant Grove City, immediately to allow Summum to set up their proposed "Seven Aphorisms" monument. Our task was to obtain two decisions from the US Supreme Court.

First, Pleasant Grove City needed the Supreme Court to agree to consider its request to review the Tenth Circuit decision. To obtain review at the Supreme Court, except in a very small category of matters, a party asks the Court to consider their case. This request is a called a petition for a writ of certiorari. That "writ of certiorari," if the Court agrees to hear the case, is an Order to the court below to send up its record of the case.

Second, Pleasant Grove City needed the Supreme Court to agree with its position that, while Pioneer Park was a traditional public forum, the Ten Commandments monument belonged to the City, and by displaying it there, the City had not created a legal obligation for itself requiring that it put on display any privately owned monuments. To get to this second decision, however, we had first to convince the Court to consider the case.

The Tenth Circuit's decision had the potential to work substantial mischief across the United States. Hundreds of cities, thousands of counties, towns, villages, and hamlets, have public spaces, such as Pleasant Grove City's Pioneer Park. If the Tenth Circuit's legal reasoning was sound, every one of those parks, if they were home to a monument or sculpture that had been donated to the local government and placed on display there, would be opened to the donation of all manner of monuments, sculpture and displays of a permanent nature.

You actually already know just how vast the statuary and monumental holdings of American communities are if you give thought to your own life experience visiting States across the Nation. One of my tasks was to quantify just how extensive the reach of the Tenth Circuit's decision could be. It was while I was assisting Walter in his preparation of the petition for a writ of certiorari that I discovered a fascinating research tool maintained by the Smithsonian Institute. That tool, called SIRIS, allowed interested researchers to scour the Smithsonian's substantial informational database of artwork, statuary, and monuments. The database included more than the Smithsonian's own holdings. It included records of such items identified in one of several different national surveys of such works over many years. Our petition to the Supreme Court contained an Appendix providing the Court with a list of displays of particular relevance to that case.

I haven't used SIRIS since we won Pleasant Grove City v. Summum, Today, however, I used it again. I used the database today to try and plumb the depths of a looming national crisis. The Confederacy crisis, if you will, looms on the national horizon. We are hearing more and more stories about the offensiveness of displays that include the Confederate Battle Flag, or that honor Confederate soldiers. We have seen the removal of the Confederate Battle Flag from the South Carolina State House. We are about to witness the disinterment of the remains of Confederate General, Democrat, and KKK Founder Nathan Bedford Forrest and his wife, from their resting place in a Memphis, Tennessee park.

"The Purge" is just getting started.

Just how deep, just how extensive, the Purge will need to be, I think, can only be answered by asking, just how many signs, symbols, and memorials of the Confederacy are displayed across the United States. And it was that question I pondered when SIRIS came to mind. I located SIRIS on the Smithsonian Institute website.

SIRIS is a powerful tool. It provides results that extend far beyond outdoor statuary. An initial search on the site located well over a thousand items whose title or description included the word "Confederate." Eventually, I honed the search down to one that appears only to identify statuary and monuments of the Confederacy.  Here's the search I used. That search indicates nearly 500 items of statuary, monumental markers, plaques, busts, steles, and the like.

When you enter that search, here is what you'll see:

As the circled information indicates, this search produced nearly 500 results. Each item gets a separate summary report. The summary can be expanded and more detail, including photographs, sometimes obtained.

Here is the expanded view of the record entry for the North Carolina Monument at Gettysburg National Battlefield Park:

The circled button is the feature that allows a reader to expand the summary view to obtain further details on the item. From here, I learned that the sculpture was crafted by Gutzon Borglum. With the information provided, a wealth of additional information becomes available, including this webpage about the artist and the statue, and the following photograph was taken during the dedication of that monument, along with remarks by the US Government official accepting the donation of the monument:

I found the remarks of Major General B.F. Cheatham, reproduced below, of particular note. Gracious in victory and gracious in the passage of time, Cheatham engages in no recriminations against the Confederates of North Carolina. He doesn't spoil the memory of the beloved and lost of North Carolina's men who died at Gettysburg, by dwelling o'er long on the contentious causes of the Civil War.

Rather, Cheatham notes, with respect and honor, how the men of North Carolina served and fell there. His penultimate observation could guide all our considerations of these matters:  

Always opposed by superior numbers and with the advantage of position against them, their courage, discipline and leadership carried them to the very muzzles of the guns, and over by a kindly providence, which has taken away the pain yet permitted to remain every sentiment of pride, honor and intense admiration for the heroic accomplishment of our fathers.

Remember, there are nearly five hundred entries in the SIRIS system. That number likely represents over 400 objects scattered throughout the United States, principally in battlefield locations, and southern cities and towns. Also, remember, there are many, many more statuary or monumental items than those noted in the SIRIS system.

While time continues its inexorable work of removing us from any sense that we ought to have of the sensibility of the descendants of Confederate soldiers, sailors, and citizens, we have words like General Cheatham's rekindling that sensibility. If we actually undertake this maddening enterprise of removing emblems and markers of our history, the reminders of our national bloodletting, monuments to the loved and the lost, we should think carefully and long about the extractions we pursue, because the pain will be more than a root canal and more extended than the war these monuments recall.

There's interesting news from my hometown, Albuquerque, New Mexico, where it appears the County Commissioners are contemplating a county ordinance limiting picketing in residential areas.

So Bernalillo County, where Albuquerque is located, will limit residential picketing.

The thing is, the proposed ordinance prohibits pickets targeting a particular residence (what might "targeting" mean) "without the express prior consent of the occupant(s)." Hmmmmmm.  "Express consent" is an interesting catch phrase.

Suppose a pro-Abortion group wants to show support for local abortion doctor?  Permission granted, based on the beleaguered occupants desire for a sign of affection from the community.

Suppose a pro-life group wants to protest against local abortion doctor.  Permission denied, equally obviously.  After, a man's home is his castle.

Nor do the obvious ham-handed likely possibilities draw the limits of the variations that are possible:

Suppose the husband of abortion physician has disliked his wife's practice for sometime (as an African American he has come to understand that Jesse Jackson was right when he referred to abortion as the genocide of the black race).  So he tell the pro-life group, "sure, you can picket but your signs have to educate and inform on the racial implications of abortion."  The abortionist wife, on the other hand, says, "no you can't."

What if children say no, but parents say yes.

And that pesky tenant in basement apartment, suppose she says yes even though the landlord upstairs says no.

And still there's that "targeting" language.

Is it targeting to identify abortion as the modern American equivalent of the Holocaust, even where no effort or speech connects that rhetorical consideration with the occupants of the residence?   I mean, suppose the sign just says, "Abortion ... The American Holocaust."  No sign saying, "Dr. Smith at 1234 Sesame Street Is Akin to Josef Mengele."

Must occupants be identified in a way that sets them apart from neighbors, than others living in the community?

What if the picketers go two doors down with signs indicating that the house two doors up is occupied by an abortionist, her husband and kids?

Of course, the First Amendment has never stopped pro-abortion politicians from pandering for votes.  And, sadly, it has never stopped pro-abortion justices of the Supreme Court from pandering to their constituencies.  Yet, as the article indicates, Commissioner Johnson at least offers the hope that sanity will prevail (along with Freedom of Speech).