Monday, September 12, 2022
Sunday, September 11, 2022
The Right's Pernicious Threat to Free Expression
Some threats to freedom of expression in America, like online harassment and disinformation, are amorphous or hard to pin down; others are alarmingly overt. Consider these recent examples of censorship in practice: A student newspaper and journalism program in Nebraska shut down for writing about L.G.B.T.Q. issues and pride month. Oklahoma’s top education official seeking to revoke the teaching certificate of an English teacher who shared a QR code that directed students to the Brooklyn Public Library’s online collection of banned books. Lawmakers in Missouri passing a law that makes school librarians vulnerable to prosecution for the content in their collections.
In Florida today it may be illegal for teachers to even talk about whom they love or marry thanks to the state’s so-called Don’t Say Gay law. Of course, it goes far beyond sex: The Sunshine State’s Republican commissioner of education rejected 28 math textbooks this year for including verboten content.
This year alone, 137 gag order bills, which would restrict the discussions of topics such as race, gender, sexuality and American history in kindergarten through 12th grade and higher education, have been introduced in 36 state legislatures, according to a report released last month by PEN America, a free speech organization. That’s a sharp increase from 2021, when 54 bills were introduced in 22 states. Only seven of those bills became law in 2022, but they are some of the strictest to date, and the sheer number of bills introduced reflects a growing enthusiasm on the right for censorship as a political weapon and instrument of social control.
These new measures are far more punitive than past efforts, with heavy fines or loss of state funding for institutions that dare to offer courses covering the forbidden content. Teachers can be fired and even face criminal charges. . . . . For the first time, the PEN report noted, some bills have also targeted nonpublic schools and universities in addition to public schools.
It wasn’t all that long ago that Republican lawmakers around the country were introducing legislation they said would protect free speech on college campuses. Now, they’re using the coercive power of the state to restrict what people can talk about, learn about or discuss in public, and exposing them to lawsuits and other repercussions for doing so. That’s a clear threat to the ideals of a pluralistic political culture, in which challenging ideas are welcomed and discussed.
How and what to teach American students has been contested ground since the earliest days of public education, and the content of that instruction is something about which Americans can respectfully disagree. But the Supreme Court has limited the government’s power to censor school libraries, if not curriculums. “Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion,’” Justice William Brennan wrote in a 1982 decision.
Despite the moral panic over teaching about gender and race, American parents overwhelmingly say they are satisfied with the instruction their children receive. A poll from National Public Radio and Ipsos earlier this year found that just 18 percent of parents said their child’s school “taught about gender and sexuality in a way that clashed with their family’s values,” while 19 percent said the same about race and racism. Only 14 percent felt that way about American history.
And yet, some Republican candidates are using the threat of censorship as a show of strength, evidence of their power to muzzle political opponents. Last year in Virginia, Glenn Youngkin won the governorship after a campaign in which he demagogued the Pulitzer Prize-winning book “Beloved” by the Nobel Prize-winning Toni Morrison. Other candidates are looking to make issues around censorship a centerpiece of their pitch to voters in the midterm elections in races from Texas to New Jersey.
Some want to extend censorship far beyond the classroom. In Virginia, a Republican state representative tried to get a court to declare as obscene two young adult books . . . . The case was dismissed on Aug. 30, but if it had been successful, it could have made it illegal for bookstores to sell the books to children without parental consent.
Right-wing lawmakers are also looking to restrict what Americans can say about abortion. Model legislation from the National Right to Life Committee, which is circulating in state legislatures, aims to forbid Americans to give “instructions over the telephone, the internet or any other medium of communication regarding self-administered abortions or means to obtain an illegal abortion.”
Even when such bills fail, these efforts to censor create a climate of fear. Across the country, libraries in small towns are being threatened with closure and library staff members are being harassed and intimidated. The Times reports that librarians “have been labeled pedophiles on social media, called out by local politicians and reported to law enforcement officials. Some librarians have quit after being harassed online. Others have been fired for refusing to remove books from circulation.”
[R]ight-wing legislators are currently trying to write censorship into law. This is not only deeply undemocratic; it is an act of weakness masquerading as strength. A political project convinced of the superiority of its ideas doesn’t need the power of the state to shield itself from competition. Free expression isn’t just a feature of democracy; it is a necessary prerequisite.
Saturday, September 10, 2022
Republican Judges Mount New Assaults on Privacy and LGBT Rights
Jonathan Mitchell is at it again. Mitchell is the conservative lawyer behind S.B. 8, the Texas law that ended most abortions in the state in 2021, even before the Supreme Court overturned Roe v. Wade.
Now, Mitchell is going after the Affordable Care Act’s requirement that private employers’ insurance policies cover preventive medical services. In a case brought by Mitchell, a federal judge on Wednesday ruled that a Texas company can’t be forced to provide coverage for drugs that prevent HIV infection because its Christian owner says such medication “facilitates and encourages homosexual behavior” in violation of his religious beliefs.
That wasn’t all. Mitchell, pressing an array of arguments that conservatives have deployed to dismantle the modern administrative state, argued that the mandates for free contraception and other preventive services were unconstitutional because the entities imposing the rules weren’t subject to enough presidential control or congressional oversight.
He lost on the contraception claim, but the judge, Reed O’Connor, found that the panel that determines what other services should be covered is unconstitutional because its members aren’t appointed by the president or confirmed by the Senate — threatening guaranteed no-cost coverage for everything from cancer screening to vaccines.
[T]he Biden Justice Department noted in urging O’Connor to dismiss the case, Braidwood didn’t claim it was being asked to cover the medication — just that there was a “hypothetical possibility that it may one day have to make” such a payment. As the department’s brief said, “It is difficult to imagine that individuals eligible to be prescribed PrEP medications would choose to work for Braidwood,” given the company’s anti-gay stance. This is not the stuff on which strong federal cases are made.
Yet, here we go again — pushed by conservative lawyers, a conservative judge (O’Connor was nominated by George W. Bush) bends over backward to accommodate strained claims of religious liberties. . . . . as this dispute demonstrates, things have gotten entirely out of whack and, in this era of conservative-dominated courts, now tilt too far in the direction of religious rights.
Antiviral PrEP medications — short for pre-exposure prophylaxis — reduce the risk of contracting HIV from sex by 99 percent. As a result, a government advisory committee recommended in 2019 that the drugs be made part of the mandatory package of fully subsidized preventive care.
This is a development that everyone should cheer, including people who call themselves Christians: It prevents needless death. But Mitchell’s lawsuit claims the requirement forces religious employers “to choose between subsidizing lifestyles that violate their religious beliefs” and not providing insurance to their employees — and makes them “complicit in these behaviors.” Complicit?
More such clashes are coming. Two years ago, in Bostock v. Clayton County, the court ruled that federal anti-discrimination law covers gay and transgender workers. But by Mitchell’s — and O’Connor’s — reasoning, it would be a violation of an employer’s religious rights to apply that ruling to any employer whose anti-gay discrimination had a religious basis: If it’s subsidizing gay conduct to cover anti-HIV medication, then isn’t it subsidizing gay conduct to pay gay employees?
The court in Bostock said religious rights might “supersede” anti-discrimination law “in appropriate cases” and put off the issue for another day. The Mitchell-O’Connor approach would carve a gaping loophole in that protection. Which might suit this conservative court just fine.
Action at the Supreme Court likewise reminds everyone that claims of restrictions on "religious freedom" threat the rights of both the majority of Americans and minority groups groups in particular. As NBC News reports, the Court blocked a lower court ruling that would require a "conservative" Jweish university to recognize a LGBT student orgaization. Here are higlights:
The Supreme Court on Friday temporarily allowed an Orthodox Jewish university in New York to deny official recognition to an LGBTQ student group, the latest in a series of decisions in favor of religious rights. . . . Yeshiva University, which claims that recognizing the group would be contrary to its sincere religious beliefs.
The dispute is the latest clash between religious rights and LGBTQ rights to reach the high court, which has a 6-3 conservative majority.
Friday's decision puts on hold a decision by a New York state judge, who ruled in June that the university was bound by the New York City Human Rights Law, which bars discrimination based on sexual orientation. The university argues that it is a religious institution and therefore should be exempted from the law. Requiring it to endorse the group would be a “clear violation” of its rights under the U.S. Constitution’s First Amendment, which protects the free exercise of religion, the university argues.
The Pride Alliance group, which first sought recognition in 2019, sued in April 2021, saying the university was required to grant its request because it is a place of public accommodation that is covered by the anti-discrimination law.
Katherine Rosenfeld, a lawyer for Pride Alliance, said Friday that the group "remains committed to creating a space space for LGBTQ students" on campus and would await final action from the Supreme Court.
Americans need to wake up to the threat claims of "religious freedom" pose to many rights currently enjoyed by citizens.
Democrats Are Gaining the Advantage on "God, Guns and Gays"
It’s already the consensus that abortion is going to be a good issue for Democrats in November.
What’s only now becoming clear — as Republicans scrub their campaign websites of prior positions on abortion and labor to turn the focus of the midterms back to President Joe Biden and the economy — is just how much the issue is altering the GOP’s standard playbook.
For the first time in years, Republican and Democratic political professionals are preparing for a general election campaign in which Democrats — not Republicans — may be winning the culture wars, a wholesale reversal of the traditional political landscape that is poised to reshape the midterms and the run-up to 2024.
“The environment is upside down,” said Michael Brodkorb, a former deputy chair of the Minnesota Republican Party. “The intensity has been reversed.” It isn’t just abortion. Less than 20 years after conservatives used ballot measures against same-sex marriage to boost voter turnout in 11 states, public sentiment has shifted on the issue so dramatically that Democrats are poised to force a vote on legislation to protect same-sex marriage to try to damage Republican candidates. Following the school shooting in Uvalde, Texas, Democrats from Georgia and Wisconsin to Illinois and California are running ads supporting gun restrictions, once viewed as a liability for the left, while openly engaging Republicans on crime.
In an advertising campaign shared with POLITICO, the center-left group Third Way said the PAC it launched last year to defend moderate Democrats, Shield PAC, will start spending at least $7 million next week on digital and mail ads in seven competitive House districts to counter Republican attacks on crime, immigration and other culture war issues.
The advertising push follows polling in Rep. Abigail Spanberger’s Virginia district that suggested counter-messaging by Democrats on public safety could blunt the effect of “defund the police” attacks by Republicans. As a result, while Spanberger is airing ads tearing into her Republican opponent on abortion, Shield PAC will be running a digital campaign bolstering Spanberger’s credentials on police funding.
“The story is that things that used to be very dangerous for Democrats – guns and abortion – are now very good for Democrats,” said Third Way’s Matt Bennett. “Those kind of culture issues – [same-sex] marriage, abortion and guns – have flipped. The political impact of them [has] flipped.”
For Republicans, the toxicity of the Supreme Court’s overturning of Roe v. Wade was not singularly in the unpopularity of the decision, but in its undercutting of Republican efforts to brand Democrats as extreme. At the base of every non-economic attack Republicans leveled at Democrats — from crime to immigration and education — was the idea that the left was out of touch. But Roe, supported by a majority of Americans — including independents critical in a midterm election — was a reminder that on one of the most salient issues of the midterms, Democrats were in the mainstream.
Democrats need to contially hammer home how out of touch with the mainstream Republicans have become and how they are a threat to the rights and safety of the majority of Americans. In keeping with this theme. a column in the Washington Post looks at the increasing Democrat momentum going into the mid-terms. Here are excerpts:
It’s not one chamber of Congress. It’s not one state or region. We are seeing a widespread shift in Democrats’ favor virtually across the board. Whether it will be enough to save Democrats’ majorities in the midterms is far from clear, but the expected red wave looks as if it’s circling the drain.
Generic polling has steadily shifted toward Democrats since July. Meanwhile, President Biden’s approval numbers are also on the rise. Maybe his student loan relief announcement and recent speeches slamming MAGA Republicans are more popular than media pundits thought. While Republicans are still favored to pick up the five seats needed to flip the House, several points deserve mention.
First, polls are providing only a snapshot of the electorate. It may well continue in Democrats’ direction. And while Republicans don’t seem equipped to reverse the momentum, events have a way of catching the electorate’s attention (as we saw with the Supreme Court’s Dobbs decision to overturn abortion rights).
Second, so long as defeated former president Donald Trump’s mishandling of classified documents remains the biggest story on the GOP side, Republicans will find it difficult to shift to issues that benefit them. (Remember inflation?) The latest Marist poll shows more than 60 percent of Americans think Trump did something illegal or unethical . . . . Republicans who insist on defending this behavior might find a chilly reception outside the cultish base.
Third, given the utter disarray, extremism and irrationality of so many MAGA House members, there is no telling whether they can actually control the House with a razor-thin majority. The speakership fight alone might take weeks to resolve if the margin is only a few seats.
And it’s not just the House. The latest batch of Florida Senate polls shows Sen. Marco Rubio (R-Fla.) within the margin of error against his Democratic opponent, Val Demings. FiveThirtyEight’s polling averages show that Democratic Senate candidates lead in Ohio, Wisconsin, Georgia, Arizona, Nevada and Pennsylvania while North Carolina is a dead heat.
One additional fact weighing in Democrats’ favor: Their ability to control the agenda. Senate Majority Leader Charles E. Schumer (D-N.Y.) has vowed to bring codification of gay marriage rights to the floor for a vote. That is going to put right-wing incumbents running in swing states in a tough position.
Friday, September 09, 2022
DOJ Appeals Trump's Flunky Judge’s Appalling Order
The sheer volume of criticism on the opinion is remarkable, as is the ideological range of voices expressing it, from Harvard constitutional scholar Laurence Tribe to former attorney general William P. Barr.
And that was before the most recent revelations about how explosive the contents of the snatched documents may be. The Post reports: “A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month.” These are so sensitive that “many senior national security officials are kept in the dark about them.”
Yet Cannon proposes that a special master should paw through these documents to determine if a former president who improperly retained them can keep the executive branch from seeing its own documents.
Moreover, Cannon’s attempt to divide the executive branch in two — allowing the intelligence community to proceed with the urgent national security review but preventing the Justice Department from investigating an explosive national security breach — is as untenable as it is unprecedented. And perhaps most egregiously, she takes the step of enjoining the executive branch from conducting its investigation, a shocking overreach that violates the separation of powers.
As the New York Times is reporting, the Department of Justice has filed a brief with Judge Cannon and politely asked her to amend her frightful order or else an appeal will be filed with the 11th Circuit Court of Appeals which legal experts predict will reverse Cannon and perhaps verbally bitch slap her in the process. Here are highlights from the Times:
The Justice Department asked a federal judge on Thursday to revisit her decision to temporarily stop prosecutors from gaining access to classified documents seized from former President Donald J. Trump’s Florida home, arguing that her ruling was hindering the government’s effort to determine whether national security had been compromised.
In a pair of filings in federal court, lawyers for the department announced their intention to appeal key parts of Judge Aileen M. Cannon’s ruling. They said they would ask an appeals court to block those sections of her order if she does not agree to do so herself by next Thursday.
Judge Cannon’s order, issued on Monday, has prevented the department from using the documents, some marked as highly classified, in its investigation into Mr. Trump’s handling of sensitive government documents.
In the ruling, she said she planned to appoint an independent arbiter, known as a special master, to sift through the more than 11,000 documents and 1,800 other items the F.B.I. seized during a court-authorized search last month . . . .
The department, in forceful and foreboding language, argued that determining the national security implications of Mr. Trump’s retention of the documents was so intertwined with its criminal investigation that carrying out a separate risk assessment was impossible under the conditions imposed by the court.
Justice Department lawyers complained that the judge’s order was impeding efforts to determine whether there may yet be “additional classified records that are not being properly stored” and noted that the search had recovered empty folders marked as classified whose contents “may have been lost or compromised.”
The government and the public, the department added, “are irreparably injured when a criminal investigation of matters involving risks to national security” is frozen or delayed. . . . . prosecutors asked Judge Cannon to grant them immediate access only to the classified material, arguing that her ruling had been based on concerns about Mr. Trump’s personal materials — including medical and financial records — that were swept up in the search.
“The classification markings establish on the face of the documents that they are government records, not plaintiff’s personal records,” they said. . . . .Prosecutors added that Mr. Trump has no right to have classified government documents returned to him and there is no plausible claim that any are subject to attorney-client privilege.
Trump has claimed that he had declassified everything he removed from the Oval Office to his residence. But his lawyers have not made that same assertion in the courtroom, where there are professional consequences for lying.
Thursday’s filing was an attempt to place the onus back on Judge Cannon.
The submission of the filing, including the declaration that Judge Cannon’s order was creating national security problems, also added to the factual record the government could put before the appeals court.
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