Hank Williams Jr. Doesn’t Quite Get The First Amendment
ESPN will no longer air Hank Williams Jr.’s song at the beginning of Monday Night Football, it was announced today. Will MNF survive? Ha, of course it will. Nobody cares about that song. ESPN could play literally any song in the world before Monday Night Football, and the experience would be just as good. Please just don’t use this song. We can’t take it anymore.
Amusingly enough, both ESPN and Williams took credit for the split. ESPN, in a statement, said, “We have decided to part ways with Hank Williams Jr. We appreciate his contributions over the past years. The success of Monday Night Football has always been about the games and that will continue.” Williams, meanwhile, posted this note on his website, once again capitalizing whatever words he felt deserved capitalization.
“After reading hundreds of e-mails, I have made MY decision. By pulling my opening Oct 3rd, You (ESPN) stepped on the Toes of The First Amendment
Freedom of Speech, so therefore Me, My Song, and All My Rowdy Friends are OUT OF HERE. It’s been a great run.”
Williams makes a common mistake here. His “First Amendment Freedom of Speech” was not “stepped on” by ESPN. Williams was and is free to make whatever Hitler analogies he so desires. He can write a new country song called “President Obama Is Just Like Hitler” if he wants to and play it at his next concert. But ESPN isn’t bound by the First Amendment to associate with him. The First Amendment doesn’t protect anyone from the repercussions of their own stupidity.
By: Dan Amira, Daily Intel, October 6, 2011
Religion, Patriotism And Freedom: Ayn Rand Vs. America
Ayn Rand has a large and growing influence on American politics. Speaking at an event in her honor, Congressman Paul Ryan said, “The reason I got involved in public service, by and large, if I had to credit one thinker, one person, it would be Ayn Rand.”
A few weeks ago, Maureen Fiedler, the producer of the weekly radio show, Interfaith Voices, asked me to participate in a debate with Onkar Ghate, a senior fellow at the Ayn Rand Institute. I eagerly accepted. I wanted to hear how a follower of Rand would defend proposals to cut Medicare, Medicaid, and food stamps while exempting the wealthy from paying their fair share.
In one sense there was agreement. Maureen, a Sister of Loretto, argued that Republican budget proposals turned their back on Christ’s admonition to care for “the least among us,” the hungry, the sick, the homeless. Ghate did not dispute that. Rand, he said, was an atheist who did not believe in government efforts to help those in need.
Ghate countered Sister Maureen’s religious position with a moral argument. He maintained that redistribution of wealth was unfair to the rich and weakened the ambition of the rest. I wasn’t surprised by this position, since I’d heard it repeatedly during the fight on welfare reform.
What I did find startling was Ghate’s insistence that just as there should be a separation of church and state, so there should be a separation of economics and state. That notion really got me thinking.
I’ve always understood that one’s loyalty to God should take precedence over one’s patriotic duty. Churches are exempt from taxation, and conscientious objectors aren’t required to serve in war. Our high regard for the First Amendment shows the preeminence of faith in the American consciousness.
But to place economics on the same level as religious freedom seemed to me almost blasphemous. Are we really to believe that the freedom to make money should stand on the same level of religious liberty? Are the words of Milton Friedman equal to the Sermon on the Mount? I don’t think so. But maybe in the eyes of Ayn Rand and Paul Ryan, they are.
Ayn Rand’s biography goes a long way toward explaining her animus to government. Her first-hand experience of communism showed her how the state can crush people, kill dissent, and exile lovers of freedom to the gulag. Horrified by what government power could do, she was determined to shrink it to the point of impotence.
America was the perfect place for Rand’s single-minded celebration of the individual. After all, this was the nation that inspired intrepid emigrants to leave behind country, family, and friends with little more than the shirt on their back to make a new life. Here they wouldn’t be judged by what they were before or who their parents were but by what they could made of themselves.
America was a beacon of freedom from its earliest days. But the freedom to earn one’s living is not the same as the freedom to emasculate government. It’s a mistake to enshrine individual liberty without acknowledging the role that a good government plays in preserving and promoting it. Look at places like Haiti, Somalia, and the Congo to see what happens when governments aren’t around much.
When government is marginalized, it’s not just individual freedom that suffers; the economy suffers too. A vibrant capitalism requires a legal system: contracts must be honored, fraud punished. Markets have to work, and for that we need a strong infrastructure of roads, rail, energy, and water and sewage systems.
Good government sets us free to spend our days in fruitful endeavors, not evasive action motivated by fear and distrust. Government regulations reassure us that speeding drivers will be arrested, that the financial products we buy won’t cheat us, and that it will be safer to put our money in banks than under our pillows. If we can’t trust our food to be healthy, our drugs to be safe, or our planes to fly without crashing, we’ll waste a lot of productive time.
During the debate, I also raised the point that the separation of economics and state implies that businesses and the people who run them are under no obligation to be patriotic.
In the 19th century, the Rockefellers, Carnegies, Fricks, and J.P. Morgans wanted America to do well because their own fortunes were tied to American prosperity. They made America a great economic power by creating jobs and technological advances right here at home. They knew that their own fortunes were bound up with the well-being of their fellow Americans.
In Ayn Rand’s America, the first obligation of CEOs is to their shareholders, not to citizens. Their business is global, not local. Why should they care if they send jobs overseas? Why should they be concerned if American kids can’t do math or write a sentence? They’ll just outsource the work. Why should they worry that the next generation of Americans is going to have a tough time? Their own kids will do just fine. And in the meantime, they’re doing just fine themselves.
Andy Grove, the former CEO of Intel, sees a problem with this view. He writes, “You could say, as many do, that shipping jobs overseas is no big deal because the high-value work–and much of the profits–remain in the U.S. That may well be so. But what kind of a society are we going to have if it consists of highly paid people doing high-value-added work–and masses of unemployed?”
Don Peck makes a similar point in his new book, Pinched, and in an Atlantic cover story. “Arguably,” he writes, “the most important economic trend in the United States over the past couple of generations has been the ever more distinct sorting of Americans into winners and losers, and the slow hollowing-out of the middle class.”
Besides this economic problem, I also see a moral issue with Ayn Rand’s insistence that all of us, CEOs included, should be totally free of the ties that bind. I especially disagree when it comes to CEOs. As I wrote here a few months ago, the wealthy have a special responsibility. Much will be asked of those to whom much has been given. Participating in government and civic life, serving in war, helping the less fortunate, and–yes–paying a fair share of taxes are inescapable responsibilities for all Americans, especially for those who have realized the American dream that inspires us all.
I doubt there was anything I could have said in the debate that would have induced Onkar Ghate to view the meaning of freedom in a different light. I suppose he might say the same of me. Still, I can’t see how one can be free in a vacuum. Freedom takes work, by each of us, and by our government, to create the place where each of us can prosper. The freedom to sleep under a bridge is no freedom at all. We can only be free when we work together for the well-being of all Americans–including the least among us.
By: Kathleen Kennedy Townsend, The Atlantic, August 23, 2011
Drug Marketing and Free Speech: U. S. Supreme Court Says Data Mining Trumps Your Medical Privacy
Pharmaceutical companies, which spend billions of dollars a year promoting their products to doctors, have found that it is very useful to know what drugs a doctor has prescribed in the past. Many use data collected from prescriptionsprocessed by pharmacies — a doctor’s name, the drugs and the dosage — to refine their marketing practices and increase sales.
The Supreme Court on Thursday made it harder for states to protect medical privacy with laws that regulate such practices. In 2007, Vermont passed a law that forbade the sale of such records by pharmacies and their use for marketing purposes. The ruling upheld a lower court decision that struck down the law as unconstitutional.
Justice Anthony Kennedy, writing for the 6-to-3 majority, said the law violates First Amendment rights by imposing a “burden on protected expression” on specific speakers (drug marketers) and specific speech (information about the doctors and what they prescribed). It is unconstitutional because it restricts the transfer of that information and what the marketers have to say.
In dissent, Justice Stephen Breyer explains that the law’s only restriction is on access to data “that could help pharmaceutical companies create better sales messages.” He notes that any speech-related effects are “indirect, incidental, and entirely commercial.” By applying strict First Amendment scrutiny to this ordinary economic regulation, he warns, the court threatens to substitute “judicial for democratic decision-making.”
The law would have been upheld, Justice Breyer says, if the court had treated it as a restriction on commercial speech, which is less robustly protected than political speech. The court’s majority unwisely narrows the gap between commercial and political speech, and makes it harder to protect consumers.
By: Editorial, The New York Times, June 23, 2011
In Politics Of Temper Tantrums, Washington Post As Spineless As GOP In Debt Ceiling Debate
Yesterday, The Washington Post editorial page turned into Springfield, circa 1991. Not Springfield, Illinois or Springfield, Massachusetts. That more famous Springfield. The one that’s home to the Simpsons.
You see, 20 years ago Lisa Simpson wished for a world in which every nation laid down its arms and there was peace. And it was done. But then two crafty aliens landed in Springfield and took over the earth, armed only with a slingshot and a club.
What does that have to do with The Washington Post? Well, we’re just days into the debate about raising the debt ceiling and they’ve already given up.
Here’s what I mean:
Every politician knows that voting to raise the debt ceiling, particularly in an electoral environment like this one, is dangerous. Large swaths of the electorate are opposed. And the most angry and energized conservatives have made it an article of faith to punish legislators who facilitate more government spending. Voting to raise the debt ceiling is a tough vote–politically.
But on the merits, it’s got to be one of the easiest votes ever. Everyone from the U.S. Chamber of Commerce to former U.S. Labor Secretary Robert Reich agrees that we must raise the debt ceiling. That’s true of just about every economist of every political stripe, too. They say that if we don’t it will lead America, and perhaps the global economy, to literal economic ruin. The stakes couldn’t be higher.
Democrats are on board. They’re pushing for a “clean” vote on the debt ceiling—an up or down vote on that issue alone. In essence they’re saying: let’s do what needs to be done and get it over with. Then we can move on to the myriad other pressing matters confronting the nation.
Republicans are in a different place. They’re making increasingly belligerent demands to tie various kinds of “reforms” to the debt ceiling vote. Deep spending cuts. A balanced budget amendment. Caps on future spending. All sorts of things that may or may not have merit, but which are also deeply partisan and political. And they say they won’t vote to raise the debt ceiling unless their demands are met—if they vote for it at all.
Their position in a nutshell: I’m a Republican and I’m not going to prevent economic ruin unless I get these other things that I really, really, really want. It’s the politics of temper tantrum. Only this time the baby’s got his finger on the nuclear launch codes.
Cue the media. There’s a reason “freedom of the press” is enshrined in the First Amendment. It’s because the Founding Fathers envisioned a Fourth Estate that held government accountable at times just like these.
Instead, we get this: buried in the sixth paragraph of yesterday’s editorial about Standard and Poor’s, the Post dismisses the idea of a “clean vote” saying it’s “unrealistic as a political matter” because “you couldn’t get enough Republican votes in the House to increase the debt limit without some spending cuts attached.”
Well, I guess that’s that. The Republicans have rattled their slingshot and the Post editorial page has fled for the hills.
What’s even more galling is that you needed look no further than the front page of yesterday’s Post to see just how political the issue has become for Republicans. There, Philip Rucker told the sad story of Arizona freshman Republican Rep. David Schweikert. Schweikert concedes that failing to raise the debt ceiling will cause economic chaos, but then he surveys the angry faces of his Tea Party constituents in town hall after town hall and wrings his hands. Destroying the economy on one hand and lessening my chances for reelection on the other…oh what is a Republican to do!
Here’s an idea: suck it up and do the right thing. Vote for the bill and, if you lose your re-election, well, at least you have the comfort of knowing that you didn’t help ruin the world’s economy. Isn’t that what we say we want from our leaders? To take tough votes and put aside personal, ideological, or political goals when the nation’s interest calls for it?
Of course, as much as I would like to think otherwise, my saying so probably won’t encourage Republicans to do much of anything. If only there were an influential, well-respected, credible voice with a broad reach whose job it was to offer opinions like that… Sigh.
Perhaps not all is lost. In the aforementioned Simpsons episode the aliens are eventually vanquished when Moe the bartender hammers a nail through a board and chases them with it. There are a couple months to go in this debate. There’s still time for the Post to find its spine. Someone get them a nail and a board.
By: Anson Kaye, U.S. News and World Report, April 21, 2011
Judicial Elections: You Get The Judges You Pay For
Legal elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.
An ugly, expensive campaign for a seat on the Wisconsin Supreme Court is but the latest example of what is now common in judicial elections: millions of dollars in misleading television ads, subsidized by lobbies that have cases before the bench.
In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”
The need to run multimillion-dollar campaigns to win election to the court in much of the country renders the crocodile ever more menacing.
For more than a quarter of a century, voters have rejected efforts to move from an elective to an appointive bench. Last year, despite a campaign led by Sandra Day O’Connor, Nevada voters became the latest to reject such a change.
Scholars, judges and advocates who find intellectual comfort in seeking to eliminate judicial elections are indulging a luxury that America’s courts can no longer afford. Instead they should focus on incremental changes to what Justice O’Connor bluntly calls the “wrong” of “cash in the courtroom.”
More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.
But this is only part of the financial story. Nationally, in 2008, for the first time, noncandidate groups outspent the candidates on the ballot.
Perhaps most tellingly, a study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races. The top five spenders in each of the elections laid out an average of $473,000.
In 2009, the United States Supreme Court dealt with this issue, holding that due process is violated when a judge participates in a case involving a party that spent a great deal of money on the judge’s election effort. The case before the court involved a West Virginia Supreme Court decision overturning a jury verdict that awarded a $50 million judgment against Massey Coal Company.
One of the justices in the majority of that 3 to 2 decision, Brent D. Benjamin, had been elected after Massey Coal’s chief executive spent $3 million on his campaign. The United States Supreme Court held, 5 to 4, that due process was violated because of the lack of an impartial decision-maker. The court made clear, however, that campaign spending requires the disqualification of a judge only rarely.
A year later, the high court held, in the Citizens United case, that corporations and unions have the First Amendment right to spend unlimited amounts of money in election campaigns. In light of these two decisions, corporate and union officials must engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful.
Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.
That solution has long been assumed to be off the table, though, because the Supreme Court ruled in 1976 that while the government can limit the amount that a person gives directly to a candidate, it cannot restrict how much a person spends on his or her own to get the candidate elected. Nevertheless, large expenditures to get a candidate elected to the bench undermine both the appearance and reality of impartial justice.
The Supreme Court’s 2009 decision properly focused on the $3 million in campaign expenditures, not the $1,000 that was directly contributed. In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging.
Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.
States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials.
By: Erwin Chemerinsky and James J. Sample, The New York Times, April 17, 2011
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