Category Archives: Free Speech

Should Adrian Wyllie (L-FL) be Included in Debates?

Last week, Florida became the laughing stock of the nation once again when the televised gubernatorial debate was postponed because of a fan. The bigger story may be that the event organizers, Florida Press Association and Leadership Florida, excluded Libertarian Party candidate, Adrian Wyllie, because he did not meet the minimum polling threshold of 15%. Despite an 0ptimus poll, which showed Wyllie trending 13%, which would have put him within the margin of error of the polling threshold, Wyllie was still excluded because the poll was not released prior to September 30. Wyllie filed suit in the Southern District of Florida to be included, but a federal judge  sided with event organizers:

U.S. District Judge James I. Cohn said Wyllie did not meet the requirements for gaining access to the debate hosted by the Florida Press Association and Leadership Florida. Cohn said the private nonprofit debate sponsors did not change the access rules by increasing the polling threshold required for a qualified candidate, 15 percent.

Also, Cohn ruled, Wyllie’s exclusion was not a violation of his First or Fourteenth Amendment rights. Wyllie argued that, because the event is to be held at the publicly funded BrowardCollege, he had a free-speech right to be onstage with Gov. Rick Scott and Democrat Charlie Crist.

But Cohn said BrowardCollege was merely the location and that the event is a “nonpublic forum,” according to case law.

Cohn said the defendants “offer legitimate reasons” for excluding candidates like Wyllie and six others because the goal of the debate is “to provide a forum to inform Florida voters through the meaningful exchange of ideas among those gubernatorial candidates with a reasonable chance of winning the election.”

 

In an election where both the Republican and Democrat candidates are largely unpopular, who is to say that Wyllie does not stand a “reasonable chance of winning the election?” A recent CNN/ORC International poll found that neither major candidate has more than a 50% favorable rating. The same poll has Wyllie trending 9%, with Rick Scott and Charlie Crist in a statistical tie at 44% a piece among likely voters. Scott and Crist’s low favorability ratings suggest that many likely voters will be voting for “the lesser of two evils” because they don’t realize that there are other options.
If a potential candidate has qualified for the ballot, should they not have the opportunity to be heard by the voters? While I agree that the event organizers, who are private entities, should be allowed to invite or exclude whomever they choose, I think that it is bad policy. To exclude a candidate who is polling in or close to double digits, with a fraction of the funding of the major party candidates, denies the voters the right to hear all sides of the issues. (To see all of the candidates’ fundraising figures, click here.)
Florida is not alone. Robert Sarvis, a Libertarian candidate in Virginia, was excluded from the gubernatorial debates last year despite polling 9% at the time. In Minnesota, Independence Party candidate, Hannah Nicollet, was excluded from two of the four televised debates despite a tradition of including third party candidates in Minnesota. Some states have been more willing to allow third party and independent candidates to participate . Earlier this month, Idaho included Libertarian and Independent candidates in their gubernatorial debate. There is no reason to exclude Wyllie, or other third party candidates, from the debate other than to protect the interests of the two major parties. Voters deserve better. We deserve to hear from all eligible candidates and to hear all sides of the issues.
The third and final Florida gubernatorial debate will be held tonight at 7:00 pm e.s.t. and will be hosted by CNN. This post is not an endorsement of Adrian Wyllie nor his campaign, but an attempt to start a dialogue on the issue of open debate.
(Editor’s Note: The post was changed after publication to reflect that the debate is tonight, not tomorrow night –Kevin)

 

Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

John Grisham Had A Point On Child Porn Punishments

John Grisham, a lawyer famous for his legal thrillers who has advocated for a more reasonable approach to crime sentencing and is on the Board of Directors for the Innocence Project, has caused a stir with his comments on some men who watch child porn:

“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.
“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn.”

Mr. Grisham referred to a person he knew from law school who got himself in trouble regarding 16 year old girls:

“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.

“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.”

“There’s so many of them now. There’s so many ‘sex offenders’ – that’s what they’re called – that they put them in the same prison. Like they’re a bunch of perverts, or something; thousands of ’em. We’ve gone nuts with this incarceration,” he added in his loft-office in Charlottesville, Virginia.

Reaction has been negative, and somewhat predictable. Think Progress was quick to condemn. Others have gone beyond condemnation and gone straight to calling for government intervention. Rosie O’Donnell has hinted that he should be targeted by the police:

(…) “Did John Grisham feel like these people needed a champion and he was it? I actually was horrified by what he said, as was most of the country because now he’s issued an apology… Nobody accidentally stumbles onto child pornography. If I were the police, I’d look at John Grisham’s hard drive right now.”

Despite the rage, Grisham has had defenders, including Radley Balko of the Washington Post:

Grisham certainly could have chosen his words better. But he isn’t wrong, and the invective he’s receiving right now is both misinformed and wildly over the top. There are Twitter users calling him a pervert, or for his home to be raided by the FBI. It isn’t all that different than suggesting that people who criticize the drug laws must be doing or selling drugs.

Take this quote out of context, and one could make Grisham look like he thinks the biggest problem with the criminal justice system is that old white guys are getting locked up for looking at child porn. But context is important. Grisham has spent a great deal of time, money, and influence advocating for criminal justice reform. He helped found the Mississippi Innocence Project, and sits on the board of directors for the Innocence Project in New York. He wrote a nonfiction book about a wrongful conviction, and helped another get published. He testified before Congress about the need for reforming the forensics system, addressing the problems he’s seen firsthand in Mississippi.

Grisham, feeling the heat, apologized:

Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography—online or otherwise—should be punished to the fullest extent of the law.

My comments made two days ago during an interview with the British newspaper “The Telegraph” were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable.

I regret having made these comments, and apologize to all.

Even the “law school buddy” he was referencing, a Gulfport, MS personal injury lawyer named Michael Hollemann, has stated that he deserved his punishment:

Speaking to the Daily Mail, Mr Holleman, once one of Mississippi’s top criminal lawyers, said that did something illegal and it was right to have received punishment.

“I did something wrong and I don’t have a bit of resentment about the way I was treated,” he said.

“It’s illegal and should be punished. If it’s a crime, it’s a crime. There’s a violation of the right of privacy involved. There’s people now who, because of the internet, who are making child pornography so they can share it across the internet. There are good reasons for it to be illegal and punished.”

It’s important to note one thing: no one involved, including myself, is stating that downloading child pornography should not be punished. It should be, without a doubt. Plus, even Grisham admits he spoke poorly.

However, the larger context of Grisham’s overall point is one about inflexibility. In Hollemann’s case, he was looking at a site of women advertised as 16. It is illegal – in both the United States and Canada1, where the sting was conducted – to look at pornography involving anyone under 18. But the age of consent in many states is 16; that means that some states have determined that 16 year olds are mature enough to decide when they want to have sex. We currently sentence looking at a 17 year old – such as former porn star Traci Lords, as noted by Balko – as harshly as looking at children half that age, despite the fact that that 17 year old can enlist and fight in a war if they want.

Of course, Holleman was guilty of looking at a site that clearly advertised 16 year olds. There are no provisions in the law as it stands for looking at something that’s not advertised as such. There’s also no allowance for minors looking at minors (e.g.: sexting). This has allowed a few attorneys general to make grandstanding pledges to arrest and charge all of the kids involved in cases where sexting has gone wrong – such as images being leaked, be it maliciously or via hacks like the recent Snapchat hack – with either possession of or manufacturing child pornography.

In both cases, the issue isn’t just the threat of jail time, it’s being permanently branded with a scarlet letter via the databases created by Megan’s Law. The intent behind the law is noble, but the consequences have been people being branded as heinous sex criminals – forever limiting their ability to get and hold a job, travel, or even live peacefully – for accidentally downloading child pornography, or for sleeping with the wrong teenager in the wrong state who has the wrong father. The ends do not always justify the means.

On a troubling note at a societal level is the call for John Grisham to be raided by the FBI. The fact that such a call flaunts the very purpose of the First Amendment – that government cannot punish people for their opinions or statements – is flagrantly obvious, but many people would be willing to trample the Constitution If It Protects Just One Child™. It’s easy to laugh at Rosie O’Donnell because she’s Rosie O’Donnell, but any time someone gets busted for anything relating to child pornography, there’s an arms race of sorts to see who can think of the best way to punish the perp. Lifetime jail term! Chemical castration! Execution! Mob mentalities accomplish nothing.

This is a bipartisan issue as well. The left is generally concerned with protecting victims, while the right is generally concerned with removing society’s unfit, but they both agree that children must be protected. This is noble. But the calls to raid John Grisham show why it’s very hard to get moderation on this issue: any calls for such are perceived as the person in question proclaiming that child pornography is a wonderful thing, and to Hell with the kids. Nothing could be further from the truth, but it makes even agreeable goals such as fixing Megan’s Law or adding provisions for things such as sexting leaks virtually impossible to reach.

John Grisham wasn’t railing in favour of child porn, he was really coming out against mandatory minimum sentencing, which is consistent with his statements on this subject for years. We can’t shred the Constitution because it’s popular. In the meantime, I urge people who have the welfare of exploited children in mind to consider supporting or donating to the Rape, Abuse and Incest Network or to the Polaris Project.

1 – Canada’s federal age of consent laws – key here, draw a line between regular sexual activity – where the age of consent was raised from 14 to 16 in 2008 – and that which “exploits” the person in question, with listed examples being that of pornography, prostitution, or anyone in a position of trust, e.g. teachers, caretakers, coaches, etc. Source: Canadian Department of Justice.

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

Rant: People Who Don’t Link To Source Material

Earlier today, my new co-contributor Matt wrote about the ridiculous Houston city council subpoena on a group who was against the transgender bathroom-rights law.

Where did the original story come from? Right here at The Washington Times.

It’s a busy article.

It comes complete with a picture from the San Francisco gay pride parade. What does San Francisco have to do with Houston bathrooms? I’m not quite sure.

It has a minute-long vapid video featuring a reading of the first two paragraphs of the article, because apparently 300 words is such a weighty article that it elicits “tl;dr” from typical readers of the Washington Times.

And of course it has a rather superficial 300-word article touching only ever-so-slightly on the merits of the case. The article which doesn’t even summarize the basic legal rationale for the group who is challenging the subpoena. The basic legal rationale that’s so simple that I’ll summarize it for you in two sentences:

The law states that subpoenas may only ask for evidence likely to result in admissable evidence on the merits of the case and doesn’t violate various legal privileges. ADF asserts that the subpoenas are overly-broad and violate the law by asking for such wide-ranging materials (some of which are Constitutionally-protected expression and others that are attorney-client privilege or protections against nonparties to lawsuits) that it cannot possibly be within the law.

You know what the Washington Times article is also lacking? ANY GODDAMN LINK TO THE ACTUAL SOURCE MATERIAL!!

It’s not like it was hard to find. A 10-second Google search led me to the ADF web site. A prominent link on the front page of the site got me to their press release in the first 10 seconds on their site. And ADF, to their credit, linked both the subpoena and their motion to quash in the first paragraph. And it’s not like links are expensive. Hyperlinks are free.

So I read them. I realize, this is ridiculous in the days of blogging when everyone has an opinion on Supreme court decisions despite the fact that none of them ever actually reads the opinions. When I read the subpoena and the motion to quash, it was pretty apparent that the subpoena was overly broad. When you dig into it, though, there are a lot of areas of the subpoena that are quite likely to result in admissible evidence. Hence why in the motion to quash, you’ll see this statement:

The Nonparty Pastors respectfully request that the Court issue an order quashing their subpoenas. Alternatively, the Nonparty Pastors request an order modifying the subpoenas to clarify that they do not include (or a protective order declaring that the Nonparty Pastors need not produce) the requested documents that are not reasonably calculated to lead to the discovery of admissible evidence and the requested documents protected by the First Amendment privilege, the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.

In a lawsuit alleging that a city council unfairly determined that an insufficient number of petitions were gathered, the portions of the subpoena related to the records of petitioners are certainly likely to result in admissible evidence. The content of sermons discussing the Mayor, on the other hand, are clearly not. So if the city attorneys narrow the scope of their subpoena (as the WSJ–an entity which deserves kudos for actually linking the subpoena and motion!–reports they’re already backing away from), they’ll probably still be able to get the discovery information they need to prepare an adequate defense to the lawsuit.

Of course, IANAL, and it’s entirely possible that I got my legal analysis wrong. But what I do know is that I’ve already given you, the readers of The Liberty Papers, a more cogent (and more entertaining, I hope) analysis of the issues than Valerie Richardson of The Washington Times. And unlike Valerie Richardson, I actually gave you the links to go form you own opinion if you doubt my reporting in any way. Because frankly, my dear readers, you’re worth it!

Publications that give you opinion without linking to original source material are trying to keep you dumb. They either want you to keep coming directly to them for analysis (likely), or don’t want you to read the source material and realize they’ve gotten something terribly wrong. Or maybe they’re just terrified that you’ll click on the link and not come back. Or maybe all of the above. Either way, they treat you like infants.

Don’t let them get away with it. Demand better. This is 2014. I hate to use the term “mainstream media” in such a derisive tone that went out of style in about my third year of blogging–right about the time Sarah Palin started calling it the lamestream media–but even The Washington Times should have figured out how to hyperlink by now.

An Open Letter to Jeffco Student Protesters Concerning History Standards

Author’s Note: The following post was intended to be published on September 29th but due to technical difficulties here at The Liberty Papers, publication had to wait. I do believe, however; this is still an ongoing, present concern and the subject matter extends far beyond the Jefferson County School District in the Centennial State.

Dear Student Protesters of Jefferson County:

I must begin with a confession. When I first learned of your student walkouts concerning some proposed changes to the AP History curriculum, I was more than a little bit cynical. These walkouts, I thought, were little more than an excuse to skip class and be ‘part of something.’ I don’t doubt that some students joined the walkouts for that reason; there are always individuals who join a cause because it seems to be the popular thing to do (I should point out that there are many people my age and older who do the very same thing so this is not a criticism of young people per se). This open letter is not intended for these students but for those of you who honestly care about the proposed changes to the history curriculum.

As I started reading about these protests it didn’t take me long to realize that you have very good reason to protest: the aims of the Jeffco School Board for the history curriculum are at best contradictory and misguided. The following paragraph in the Board Committee for Curriculum Review must be the primary reason for your protests:

Review criteria shall include the following: instructional materials should present the most current factual information accurately and objectively. Theories should be distinguished from fact. Materials should promote citizenship, patriotism, essentials and benefits of the free enterprise system, respect for authority and respect for individual rights. Materials should not encourage or condone civil disorder, social strife or disregard of the law. Instructional materials should present positive aspects of the United States and its heritage. Content pertaining to political and social movements in history should present balanced and factual treatment of the positions.

The first three sentences and the last sentence, I am sure, you have no problem with. The materials should be presented “accurately and objectively.”  But if the first goal is objectivity, how can the materials also “promote” other ideas such as citizenship and patriotism at the same time? Promotion of ideas by definition means they intend to encourage students to accept certain ideas and reject others. Objectivity means presenting the material without promoting a certain world view (which is much easier said than done). » Read more

Freedom, Group Identification, and Consequences

To anyone trying to make the Cliven Bundy issue, or the Donald Sterling issue, or the Brendan Eich issue about freedom of speech…

…PLEASE STOP…

They are unrelated, and MOSTLY irrelevant, to free speech.

None are a question of freedom of speech.

All three are a question of bad PR and violating contract terms.

These idiots are not victims of oppression… at least as far as speech goes.

“Well, that’s just your perspective… this is mine”

No… You can have your own opinions, you cannot have your own facts.

This is not an opinion or a perspective, it is a fact. In making this argument, you are entirely and completely incorrect, in both fact and in principle…

That’s not so bad… it’s OK to be wrong… everyone is wrong about many things, every day.

What IS so bad, and why you must be corrected, is that by passionately advocating such a patently false viewpoint, and making weak and specious arguments to support it, you weaken the very important ACTUAL battle to restore and maintain free speech.

Using bad arguments for your cause HURTS your cause, it does not help it.

There are some very serious threats to free speech in this country, particularly on college campuses and in schools. There are supreme court cases in this session, and coming up addressing these issues right now… and the picture is decidedly mixed.

    We are dangerously close to criminalizing, or at least accepting some kind of official sanction, on “hate speech” in this country. We already HAVE criminalized “suspect motivations”, through “hate crime” law.
    The Government is spying on and intimidating reporters, with the DOJ going after those it perceives as enemies.
    Witnesses are being suppressed out of fear of government retaliation.
    The IRS has gone after conservative political groups, simply for being conservative.
    We have enacted insane regulations about who can say what, when, and with how much and whose money, when it comes to politics and elections.

These are HUGE REAL PROBLEMS.

By equating things which are not about rights and freedoms, to things which are, you weaken rights and freedoms, and make them more difficult to defend.

Freedom of speech means you have the right to say as you damn well please and the government can’t stop you or punish you for it (except in some very strictly limited ways).

It doesn’t mean that private persons or organizations have to publish you, support you, employ you, associate with you, provide you with a forum or an audience, or listen to you.

Freedom of speech does not mean freedom from consequence.

If you can’t back everything you say, and accept the consequences, then perhaps your problem is not one of lack of freedom, but of lack of courage.

“But… but… political correctness… thought police… BAD”

Yes.

I never said that political correctness WASN’T a chilling force on freedom of speech and even freedom of conscience… Of course it is.

…But that is not the same as government using force against you because of it (though with “hate speech” and things like campus “speech codes”, we have to be very careful of that).

The problem with believing in freedom is that you have to believe in it for everyone, including people you don’t like, or whose ideas you don’t like, or who do bad things with it.

Private individuals and organizations can choose who they wish to associate with freely, and who they wish to support or oppose freely (or at least they are supposed to be able to).

That means both things and people that you like, and things and people that you don’t.

That means you can be fired for expressing yourself. It means you can be fired for your political and social views. It means you can be fired for your private behavior. It means you can lose your customers, your money, your reputation…

In fact, everything but your life, and your freedom.

A free society means we have to put up with that.

We don’t have to like it, but we DO have to put up with it.

And many of us actually have very little problem with it… so long as it’s aligned with THEIR personal beliefs.

Frankly, I don’t see very many “social conservatives” complaining very much when it’s “progressives”, gays, atheists, muslims, “perverts” etc… who experience negative consequences for their beliefs (admittedly, that is certainly not true of all. Some do decry all of this as suppression of free speech and freedom of conscience).

Most “social conservatives” aren’t complaining when church groups or conservative groups try to get certain things banned, or removed from libraries or schools, or have teachers, or school administrators, or abortion providers fired…

…because you don’t like their ideas or how they express them.

…Really, most anyone who you would identify as the enemy, or the “other side” or whatever other outgroup identification it may be…. seems it’s ok to you if THEY have to live with the consequences of their choices, actions, and words…

Most of you are only complaining when it’s happening to those you identify as YOUR ingroup, or for people whose opinions and ideas you agree with.

Again, not always, not everyone… but most.

The same of course is true of “the other side”… starting to see the point yet?

So really… What you’re asking for is not “freedom of speech”, it’s “freedom of speech that you like”, and freedom FROM both speech, and consequence that you don’t.

That’s not freedom. That exactly the same as “the other side”… you just like the opinions better.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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