President Elect Trump and Free Speech. Is it Good to Be King?

President elect Trump has opined that people who burn the American flag should be punished (jailed or lose citizenship).  However, he has failed to denounce use of the American flag as a symbol by the KKK, an avowed racist group, or of the Confederate Flag, an avowed racist symbol.

Justice Brennan, in Texas v Johnson:

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

Even Mitch McConell rejected a Constitutional Amendment to overturn Johnson, writing:

No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.

Justice Scalia famously stated:

If I were king, I would not allow people to go around burning the American flag -- however, we have a First Amendment which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government.

Does Trump suppose himself to be King? 

He has suggested that he will change defamation laws to dilute freedom of the press and allow public figures to more easily sue the media for defamation. Is he unaware that defamation law is state common law and not federal law? And that if it were, he doesn't have the power to change them?  And in any event, there is the Constitution?

Perhaps he sees the Constitution as merely another of those vexing regulations that must be immediately eliminated.

Who would have thought that when Trump went to Washington to clean things up, he intended to throw out freedom and democracy with it?  -  other than the 70 Million people who voted against him.

Sad.

Fictional President Andrew Shepard explains why burning the American flag is as patriotic as saluting it:

Was Daniel Shays Right?

Democracy is more or less accurately described as “rule by the majority.”  The drafters of our Constitutional scheme of government were concerned that a majority could become despotic and trample upon the rights and interests of minorities. We have seen ongoing example of this phenomenon throughout American history, particularly in the area of race relations.  American law in many states denied basic civil rights to persons based on the color of their skin - the majority races tyrannizing the minority races.  Public referendums enacting bars to same sex marriage would also seem to fall into this category.  

There is ample evidence that our founders’ concerns over the potential for “tyranny by the majority,” were not animated by a desire to protect the kinds of minorities that history has since borne out to be the victims of these injustices.  Their concern was for potential oppression of the numerically inferior but vitally important commercial interests of the nation. Shays’ Rebellion in Massachusetts caused our founders to fear that mass public uprisings and a legislative appetite for popular policies could thwart commercial interests and stifle the development of a nation.

Whether intended or not, in our Constitutional scheme, the courts have become the havens for oppressed minorities seeking relief from an overzealous oppressive majority.  As Judge Richard Posner wrote in his Federal Appeals Court opinion striking down same-sex marriage bans in Indiana and Wisconsin, “Minorities trampled on by thedemocratic process have recourse to the courts; the recourse is called constitutional law.”

That background brings us to consideration of the Supreme Court’s decision in Citizen’s United v. FEC. Laws enacted with the support of the majority limited the amount of money that corporations could spend on political election campaigns. Was this Shays’ Rebellion all over again? Was this not oppression of our nation’s vital economic interest by a self-serving and greedy majority? The court rescued the victimized corporations by declaring such restrictions constitutional. As Senate minority lead Mitch McConnell stated when he thought no one would catch him, the court had simply “level[led] the playing field for corporate speech.”  Oh, those poor oppressed corporations!

In Congress now, Senate Democrats have proposed a constitutional amendment that would undo Citizens United and allow the federal and state governments to regulate corporate monetary influence in campaigns. As is clear from this NPR report, the amendment has overwhelming public and bi-partisan support outside of Congress.  Yet, there is absolutely no chance that Congress will pass it.

When our Founders sought to protect economic interests from the political influence of the masses, they were concerned that commerce and the national economy would be stifled, financially strangling the new nation in its infancy.  The modern protectors of corporate interests from public sentiment seek to preserve the power of money – not to advance national economies and international trade –but to influence elections.  Many of those who seek to protect this corporate influence often purport to embrace the ideals of the founders for their political ideology. Somehow, I don’t think that preserving the influence of the affluent in elections was a founding ideal.

Here are some questions for our students:

What is the nature of this complex and complicated institution of democratic law-making?  Is the Supreme Court protecting huge multi-billion dollar corporations from oppression by the massed majority?  Is this the kind of “tyranny by the majority” that concerned our founders?  Is the majority always right? What should be the role of public opinion in law-making?  What should be the role of unlimited money in elections? How does that affect public policy as expressed in law?

Did Daniel Shays actually have the right idea in the first place? 

Shays' Rebellion:

Tyranny by the Majority:



Citizens United:



Constitutional Amendment:

Federal v. State Powers

This may not be the right video for every class, it can help in the right spots.

Justice Scalia Says Natural Law is Relative

According to Justice Scalia's comments in the video below, "Natural Law" is whatever the majority says it is. So, if the majority decides that same sex marriage (for example) is not to be allowed, then that is what "nature" dictates. It follows, then, that if the majority votes that public corporations should not have the same free speech rights as natural persons, then that should be law, despite constitutional protection (as interpreted by the Supreme Court).  In reading Justice Scalia's comments during oral arguments and his decisions, one would conclude that Justice Scalia fancies himself an historian.  How many times in the course of American history has "natural law" been used to justify denial of basic rights to unpopular minorities? In a democracy, is there not a need for an institution that protects against the tyranny of the majority?

Justice Scalia also queries what qualities of judges make them more qualified to determine what the law is than the democratic majority. This video can be a good device to raise the counter-majoritarion difficulty for class.

Democracy: Rule of the Majority?

In middle school I learned that democracy was "the rule of the majority." Somehow, even then, that concept intuitively did not sit well with me. It struck me that "rule of the majority" meant that 5 kids on the playground could vote 4-1 to beat up the 5th kid and steal his lunch money everyday. In 7th grade, I was far more likely to be the 5th kid than 1 of the 4. Even then I was certain that a functioning democracy needed a counter-majoritarian institution to protect the basic rights of the unpopular and disrespected. Maybe that is why I ended up drawn to the law!

There Oughta Be a Law ...

I start my Legal Environment course with a class exercise where I anoint the class as the University “rulemakers” and then ask them to solve a campus problem (dealing with thousands of carelessly disposed chewing gum wads).  Some of the suggestions are in the general vein of “law” (rules and enforcement) while other suggestions involve education, altering the physical environment, campus advocacy and appeals, or simply living with the problem.   The point of the exercise is to have students consider both the potential and limitations of law as a means of solving problems. Recently there were two news items that caught my attention potential topics for a similar exercise. They involve real and substantial social “problems.” There may be pedagogical value in asking student to consider both the potential for and the limitations of employing “law” as a problem solving device.

First, Mother Jones magazine has published a series of charts that illustrate the mind-blowing increase in wealth disparity in the US.  Visually presented in this manner, the “problem” is immediately obvious. Is there a potential role for “law” in addressing this issue? Why or Why not?  Discuss.

Second, the Tribune newspapers ran an article about recurring drug shortages in hospitals . According to the article, these shortages are prevalent, come on without warning,  and cause doctors to use older drugs as substitutes – some that predate the doctors’ medical practices and, therefore, with which they have no experience. Is there a potential role for “law” in addressing this issue? Why or Why not?  Discuss.

Source of charts below: Mother Jones

OUT OF BALANCE

A Harvard business prof and a behavioral economist recently asked more than 5,000 Americans how they thought wealth is distributed in the United States. Most thought that it’s more balanced than it actually is. Asked to choose their ideal distribution of wealth, 92% picked one that was even more equitable.

WINNERS TAKE ALL

The superrich have grabbed the bulk of the past three decades' gains.

YOUR LOSS, THEIR GAIN

How much income have you given up for the top 1%?


 

WHO IS WINNING?

For a healthy few, it's getting better all the time.

Videos on drug shortages: