Monthly Archives: May 2012

Obama thinks it’s reasonable to kill Americans without trial, but won’t tell us why

There was an eight-page article in the New York Times yesterday entitled, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will. The article contains quite a number of excuses and loopholes the administration has found to justify morally- and legally-questionable actions. Innocents can be killed in the line of fire, even if we are not at war. All military-age males in a strike zone are automatically designated as combatants, so we cannot say that we killed non-combatants. The US has a veritable take-no-prisoners policy in order to get around the tricky issue of detaining someone without trial.

This even applies to American citizens. From the article:

[Anwar al-Awlaki’s] record, and Mr. Awlaki’s calls for more attacks, presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial?

The Justice Department’s Office of Legal Counsel prepared a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.

“Due process” now consists of the executive branch deliberating about whether you should die or not. We have rewritten the rules to suit our needs.

Still, my mind is not made up about the administration’s actions. It is possible that some of them are morally justifiable -by which I mean they are consistent with the goal of creating an international human society in which people have their basic liberties. Perhaps it is reasonable to kill terrorists in other countries without trial in order to protect innocent lives. However, I am not convinced. I tend to think that the rights guaranteed by the American constitution are there for a good reason, and I tend not to trust people who break the rules and then invent justifications for it later. Humans have done this throughout history; very seldom has it looked noble in retrospect.

In choosing not to release, among other things, the fifty-page Department of Justice memo which gives legal justification for the killing of Awlaki, Obama makes it appear as if he has something to hide. If the administration thinks it is reasonable and good to practice indefinite detention, or to kill American citizens without trial, then let them state their case for it openly, and let the nation debate it openly. This is a democracy, and our ability to scrutinize the actions of our leaders is paramount to keeping power in the hands of its people.

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Filed under Crime and Punishment, First Amendment, Government, Human Rights, News

Our government has standards that religious institutions must live up to

There have been many excellent responses to the Catholic bishops’ complaints about the new US law regarding  insurance coverage for contraception. But Marty Klein at his blog, Sexual Intelligence, has just published the most concise and powerful response I have seen.

Amidst complaints by the Catholic clergy that their religious freedoms are being infringed, Klein states the obvious – our government mandates standards for work environments.

What employers like Notre Dame should NOT be allowed to do is present their employees with a substandard work environment. Just because they have strong religious feelings (yawn), their workplaces shouldn’t be less safe, less free of harassment, or offer less healthcare protection. It’s the government’s job to make sure Notre Dame meets the current minimum standards of the American workplace, whatever they are. It’s not the government’s job to help Notre Dame shape its employees’ private behavior to suit its vision of personal morality.

Safety regulations in the workplace are not new. It doesn’t matter if your religion prohibits you from wearing a hardhat; you still have to follow the rules. The same goes for harassment, and healthcare. There are standards enacted for the good of everyone. Expecting people of all religions to abide by them is not a novel concept, nor is it unfair.

Do read the whole thing. It’s short and direct, and makes it obvious what the Catholic bishops are doing – whining that they can’t do whatever they want in a secular democracy.

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Why harassment isn’t free speech

One of the limitations on free speech in American public schools is when speech becomes harassment. What constitutes harassment, and why is it a good idea to put limits on this sort of behavior?

Here is an interesting example from a high school in Nova Scotia. Granted, Canadian law isn’t American law, but it’s the case that I care about. A student named William Swinimer was suspended for wearing a t-shirt to school with the slogan, “Life Is Wasted Without Jesus.” Now this, alone, would not be an actionable offense in the US or in Canada. In a previous post on student speech, I discussed students’ rights to express all sorts of potentially offensive ideas via their dress (one student wore a Jesus costume to his school’s “Fictional Character Day”). Swinimer, however, had been repeatedly preaching his religion and telling other students that they would go to hell. He was, it seems from the report, disrupting the school learning environment and making it more difficult for other students to learn. As a result, he was ordered to stop wearing the offending t-shirt (which he had worn every day for several weeks). When he continued to wear the shirt, Swinimer was suspended for five days.

Is this the right approach? It seems to me that the distinction between speech that should be protected in schools (including speech that is unpopular or offensive), and behavior such as the above, is a valid one to make. The Washington chapter of the ACLU has an article explaining why behavior such as Swinimer’s constitutes “harassment,” and why it should be restricted:

Students do not abandon their rights to freedom of speech at the classroom door. A school should allow students to speak freely so long as their speech does not substantially interfere with the educational process or the rights of other students. However, certain conduct may be prohibited in a school setting even where it could not be punished in other settings.

For example, it does not violate freedom of speech when teachers require that students stop extraneous conversations and pay attention in class; this form of student speech interferes with the educational process. In the same way, harassment of students by other students interferes with the operation of the school and infringes on the rights of the harassed students to enjoy equal treatment under law and equal educational opportunity. Schools have a compelling interest in eliminating discrimination and harassment, and this goal may be pursued in a manner that does not abridge the right to freedom of expression.

In a previous post (linked above), I discussed why free speech, and therefore the free exchange of ideas, is important. It makes our society better to be able to say what we think, and respond to ideas that we find false or pernicious. Censorship does not solve problems. Harassing individuals, however, and interfering with their ability to learn is a problem, and should rightly be prohibited. In certain cases where harassment or bullying of a group is particularly prevalent or severe, we have an even greater responsibility to see that those students are protected, lest something terrible happen. This is why it was disgusting last November to see Michigan Republicans attempt to pass a law to let school bullies off the hook if they acted out of a “sincerely held religious belief or moral conviction.” Against a national backdrop of anti-gay bullying and teen suicide, Republicans wanted christians to have free license to disparage students for being gay.

So to return to the current issue, while I defend William Swinimer’s right to express offensive beliefs in school, I think it’s good to draw the line at pestering other students and disrupting the learning environment.

(via Butterflies and Wheels)

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Filed under First Amendment, Free Speech, Freethought, Government, Human Rights

Some good advice

For my final post on free speech this week, I thought I’d share the transcript of a 2008 commencement speech given by Singaporean author and lawyer, Adrian Tan. The speech is good (and not overly long), but what stands out for me is Tan’s advice to “be hated.”

…every great figure who has contributed to the human race has been hated, not just by one person, but often by a great many. That hatred is so strong it has caused those great figures to be shunned, abused, murdered and in one famous instance, nailed to a cross.

One does not have to be evil to be hated. In fact, it’s often the case that one is hated precisely because one is trying to do right by one’s own convictions. It is far too easy to be liked, one merely has to be accommodating and hold no strong convictions. Then one will gravitate towards the centre and settle into the average. That cannot be your role. There are a great many bad people in the world, and if you are not offending them, you must be bad yourself. Popularity is a sure sign that you are doing something wrong.

So true! And it’s rarely said. Few people take kindly to being told they’re wrong, or that they have to change. Say what you believe, and don’t let offense be an excuse to stop talking.

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Kenan Malik on banning hate speech

I might as well declare this “Free Speech Week” here on my blog. I’ve posted twice on the subject already this week, and today’s post will mark my third. I’m glad, for the following is something I’ve been meaning to share.

Writer and blogger Kenan Malik recently posted the text of an interview he gave on the subject of hate speech. He’s titled the post, Why hate speech should not be banned.

As I wrote yesterday, free speech is a difficult issue, and I find myself frequently in need of a reminder as to why disparagement of persons based on their immutable characteristics – in other words, hate speech – should be protected. Malik gives clear, well-thought out answers to this question and many related ones. Normally I would offer some highlights, but really the entire interview is engaging and informative, and well worth one’s time. Do give it a look.

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Yes, you can still be offensive in school (and why this is a good thing)

Free speech is a difficult issue. I’ve read the arguments in favor numerous times, but despite this fact I find that I must frequently remind myself why a hateful or ignorant opinion must be allowed free expression. Two days ago, I discussed the free speech rights of a high school student who wore a Jesus costume to school, and some commenters (mostly on Facebook, rather than here) disagreed with my opinion. It is because free speech is such a difficult issue that I find these objections well worth getting into. In this post, I take a look at fairness in censorship, hate speech, and the difference between freedom of expression inside and outside public school.

First, a recap: On Monday I posted about an incident at a high school in Tennessee. The school held a Fictional Character Day, in which students could come to school dressed as their favorite fictional characters. One student, Jeff Shott, dressed as Jesus. He was warned by the school administrators that if his costume caused a class disruption of any kind, he would be forced to remove the costume. So Shott decided to take the costume off right then and there.

I argued that it was silly for (students who were presumably) christians to get upset by someone asserting that the (supernatural) Jesus is fictional. After all, this is what practically every jew, muslim, hindu, buddhist, atheist, and agnostic in the school believes. More importantly, I argued that the school was wrong to punish Shott for class disruption caused by other students. Shott was following the rules. The idea that a student could be so upset over the assertion that their religion is untrue that they would cause a classroom disturbance, and that a school administrator could put the responsibility for such immaturity on Jeff Shott, and punish him for asserting an unpopular opinion, is outrageous. This sort of issue is exactly what free speech is about.

Note, first, the thread of minority oppression in this incident. According to Shott’s retelling, when Shott was called to the principal (Dr. Farmer)’s office to discuss his costume, he was asked to state who he was portraying. After he answered, “Jesus Christ,” Farmer said he had been hoping the answer would be Zeus, or some other mythological deity. Now I do not know if the words “mythological deity” were Shott’s or Farmer’s, but the mention of Zeus makes the intent clear. It is perfectly alright to dress up as fictional characters from unpopular religions, but you’d best leave christianity alone. The tenets of christianity have a privilege that other beliefs do not have.

And thus we get into the reason why protecting free speech is so important – there is a tendency to marginalize opinions that we disagree with, that are controversial, or that we find offensive. This is what we must watch out for, because human logic is fallible, popularity is a fickle thing, and offense is in the eye of the beholder. How long will it be before someone declares your ideas offensive, and therefore off the table? There is no protection against this other than the protection of free speech.

One of the comments I received on Monday (again, this was on Facebook, not here), was that a student wearing a fictional Jesus costume is actually persecuting christians! My, this is setting the bar for persecution rather low. If telling someone that they are wrong amounts to persecution, then I daresay my friend was persecuting me when he disagreed with my blog post. And who cares if he was? Who cares if he was telling me I’m wrong? I have never found it to be such a terrible thing. Unpleasant, certainly, but far more pleasant than an unfree exchange of ideas.

Furthermore, this suggestion demonstrates an obliviousness to the privilege that christians in America enjoy. On the subject of articles of dress that assert certain beliefs, my friend called out Jeff Shott for his assertion (via costume) that christians are wrong, but failed to say anything about the crosses that christians often wear, which assert that atheists such as myself, as well as jews, muslims, hindus – basically anyone who isn’t christian – are wrong. As a matter of fact, I find many of the basic tenets of christianity (which are, again, asserted by the wearing of the cross) to be immoral and downright offensive, so may I silence christians from voicing their opinions, as well? This is an obvious double standard.

Commenters also provided me with further examples to consider. What if a student had come to school wearing Nazi or Ku Klux Klan gear, or a T-shirt with an anti-minority group slogan? What if a student had worn a Hitler costume to Fictional Character Day, and this greatly upset someone whose family had been affected by the Holocaust? Would it be right to make such a student remove his or her costume?

These are important questions to ask, and I will get to them in a moment. First, let us notice a few things. Do you see any important differences between the assertion that “Jesus didn’t exist,” and the assertion that “You are an inferior human being,” which is the sort of thing that hate groups like the neo-Nazis and the KKK often assert? The former statement attacks an idea; the latter attacks a person. Furthermore, if a person is attacked for their race, gender, sexual orientation, and so on, that is something they cannot change. Beliefs can change – and should! – based on evaluation of evidence, but if someone despises you for who you are, there’s nothing you can do about it.

So we are getting into the category of tougher examples as far as free speech is concerned. This is no longer the mere (and yes, I say “mere!”) assertion that a popular religion is wrong. This is hate speech. Hate speech is, aside from a few exceptions, protected by the First Amendment. But the question for this blog post is, how far does that protection extend into public schools? How far should it extend?

The examples above that my friends provided were thought-provoking, and it wasn’t obvious to me what the answer should be. Like I said, free speech is a difficult issue. So I did some research. It turns out that public school students (and teachers) have all of their First Amendment rights more or less intact!

The seminal court case on this issue was Tinker v. Des Moines Independent Community School District (1969). The Tinkers were Iowa public school students (siblings), who decided to wear black arm bands to school to protest the Vietnam war. Their respective schools banned the arm bands, and punished students who continued to wear them. The Court ruled that such a violation of free speech was unconstitutional, so long as the speech would not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” This became known as the “Tinker test” (which I will comment more on in a moment). There are a few other limitations on students’ speech, with regard to defamation, obscene speech, “true threats,” and harassment. These restrictions are well-explained in this PDF from the  ACLU of Washington State. Suffice to say, offending someone for any reason is not enough to constitute harassment.

Since Tinker v. Des Moines, numerous decisions have upheld the right of students to wear controversial and “offensive” (I put this in quotes because it is subjective) clothing to school (see this PDF from American University Law Review for a summary). One such case involved the donning of a T-shirt with the slogan, “Homosexuality is a sin! Islam is a lie! Abortion is murder! Some issues are just black and white!” Let me stress that this sort of speech is protected by the First Amendment, even in public schools.

Is this a good thing for our society? I think so. As I said above, by protecting all speech we ensure that someone else’s subjective evaluation of our words will not be used to silence us. The ACLU echoes this point, as well as several others. To paraphrase, the free exchange of ideas is paramount in a free society. Limiting free speech for the purpose of combating bias (say, against racial minorities) traditionally does not work – it merely suppresses the symptom – hateful speech – without addressing or exposing the underlying bigotry. The best response to speech you don’t like is more speech.

It might be argued that this is all well and good when it comes to society at large, but should it apply to our children attending school? Shouldn’t they be, you know, protected from hate? Again, I see more good in protecting free speech. First of all, it is impossible to be objective about what speech is “bad.” People will always label speech that threatens their views as “wrong” or “offensive,” regardless of whether there is any truth to that claim. More importantly, children should be full participants in the democratic free exchange of ideas – we can’t expect them to handle ideas they find odious with maturity or sensibility if we do not teach them this skill. The Supreme Court over the years has spoken strongly in favor of this principle [emphasis mine]:

“The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress “expressions of feelings with which they do not wish to contend.”

My last argument for the protection of speech, both inside and outside of school, is that offensive, idiotic, or just plain wrong expressions of opinion should not get us down. We are bigger than bad ideas! It doesn’t matter if I tell you that Jesus is fiction, or if you tell me that I’m going to hell because I am an atheist. These opinions may upset us, but it is more upsetting when we cannot voice our opinions at all. These are the lessons that Shott’s high school could have taught!

The only major point on which I disagree with the US courts is regarding the Tinker test. As I said two days ago, we cannot allow other students’ actions to dictate whether free expression is protected or not. There is nothing fair or right about protecting an opinion one day because no one caused a disruption over it, and censoring an opinion the next day because someone did. I agree that a certain degree of order, and more importantly, safety, must be maintained, but we must be careful not to allow loud and unruly persons to take away our basic freedoms. It may be the case that Jeff Shott’s costume, had he continued wearing it, would not have offended sensibilities enough to cause any kind of classroom disturbance. However, on that day or any other, there would be nothing to stop interested parties from causing a disturbance on purpose in order to silence Shott (or anyone else they disagreed with.) It does not protect free speech to put the power of censorship in the hands of those who would be most tempted to use it.

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