Constitutional Opinions / Free Speech Vandalized
Rabkin, Jeremy A.
CONSTITUTIONAL OPINIONS EQUAL Ju Ttc,a u nem LA Free Speech Vandalized by Jeremy A. Rabkin H UD claimed to have been misunderstood. It didn't mean to suppress free speech in its enforcement of...
...In this context, free speech begins to look like a nuisance...
...Indeed, in almost every case where the Supreme Court has faced a conflict between the First Amendment and an "equal opportunity" measure, the court has flinched and gone with "equal opportunity...
...They just had no right to exclude women from these activities (Roberts v. U.S...
...And the ACLU has weighed in on the side of the homeless, demanding suppression of citizen protests...
...And the court subsequently made clear that employers could be held financially responsible for the remarks of employees that have this effect, even if the employer did not know about them: in effect, the court holds that employers must establish speech-monitoring programs if they want to avoid trouble from the EEOC (or from easily offended and litigiously inclined female employees...
...In Richmond, Virginia, the ACLU has already entered a dispute where homeless people are pressing this sort of "discrimination" complaint against local citizens...
...Sometimes they are so strong as to seem a bit unhinged—but they have often carried the court along here, too...
...Investigations against citizens and citizen groups in other cities have continued...
...The First Amendment has come to be such a hodge-podge of confused impulses that it no longer seems to have any moral coherence...
...Jaycees, 1984...
...But will courts really stand with the First Amendment when this requires them to curb a program sailing under the flag of "civil rights" and "equal opportunity...
...Not even mentioned in these cases, nor in the EEOC guidelines seeking to implement them...
...And blah, blah, blah...
...The issue first received national publicity with Heather MacDonald's article in the August 8 edition of the Wall Street Journal...
...The Wisconsin supreme court ruled that the law was unconstitutional because its implementation would encourage prosecutors to pry into the private reading habits and the private conversational themes of defendants...
...And it remains unclear which side will suffer deeper injury when they clash in front of federal judges...
...But HUD threatens its targets with statutory fines of up to $50,000, along with compensatory and punitive damages possibly reaching even higher sums...
...The segregationist parents in that case were not, to be sure, very appealing defendants...
...CI 80 The American Spectator October 1994...
...As it figures in contemporary jurisprudence, it is often so removed from its historic purpose of guaranteeing open and informed civic debate that it seems open to almost any new turn...
...A ttorneys for the Washington-based Center for Individual Rights have therefore initiated efforts to challenge this HUD program in federal court, on behalf of citizens still subject to HUD investigations in Seattle and elsewhere...
...But the status of HUD's overall enforcement program remains uncertain...
...In 1992, for example, the court upheld a so-called "hate crimes" law in Wisconsin, which provided that once a defendant was convicted of a criminal offense, he could receive triple the normal penalty if he had chosen his victim on the basis of racial or religious prejudice...
...One cannot be too sure...
...Meanwhile, counter-demonstrators from the pro-choice side were left unrestrained while stirring up a racket in the same area (Madsen v. Women's Health Center, 1994...
...It didn't mean to suppress free speech in its enforcement of civil rights laws...
...No one has yet been prosecuted under this program...
...As MacDonald reported, the U.S...
...At any rate, the reasoning in the private school case eventually caught up with a far less offensive group of citizens...
...But only a year later, the ACLU was boasting about its successful defense of uniformed Nazis, seeking to stage a public rally in Skokie, Illinois, home to a sizable number of Holocaust survivors...
...Quite reasonable people can (and do) find reason to endorse any one of these rulings (and others much like them...
...HUD's assistant secretary for fair housing, Roberta Achtenberg, insisted in late August that the department was required by law to investigate complaints of discriminatory activity that burdens the housing rights of the handicapped...
...Free speech...
...Now they seem to think stronger measures are needed—like moving drug addicts into middle-class neighborhoods or teaching elementary school children about the lifestyles of homosexual couples ("Heather has Two Mommies...
...For the truth is that trimming the First Amendment to accommodate "civil rights" is already a well-established game, one that has been sanctioned even by the Supreme Court on many occasions over the last few decades...
...And the Supreme Court treated this "victory for civil liberties" as too clear-cut even to merit review by the court (Skokie v. National Socialist Party of America, 1977...
...In Berkeley, New Haven, Seattle, and other cities around the country, HUD officials have launched investigations of citizens and civic associations, in retaliation against their efforts to persuade local zoning boards not to approve proposed nearby sites for homeless shelters...
...In Meritor Savings Bank v. Vinson (1986), the court endorsed a definition of "sexual harassment" extended to cover sexist remarks in the workplace that might be construed by a female employee—even if not directed to her—as creating a "hostile work environment...
...Or the actual facts may have to be given less weight in order to preserve important points ofprecedent or of doctrine for later cases...
...Also the display of naked bodies on the huge screens of drive-in theaters (Erznoznik v. Jacksonville, 1975...
...T his was hardly the first time the court sanctioned differential treatment on the basis of differing beliefs...
...Yes, the court explained, the Jaycees had an absolute right to organize and to stage activities to promote business 60 The American Spectator October 1994 opportunities for young men...
...As far back as the mid-1970s, the court acknowledged that segregationist parents had an absolute First Amendment right to organize a private school to teach segregationist doctrines—they simply had no right to exclude black students from this school (Runyon v. McCrary, 1976...
...When Congress tried to prevent the NEA from funding such assaults on the sensibilities of Christian taxpayers, prominent legal authorities insisted that such restrictions would be unconstitutional...
...So, even while carving new exceptions into the First Amendment, the court has been ready to extend its reach in remarkable ways in recent decades...
...This spring the Supreme Court upheld a series of injunctions barring right-to-life picketers from approaching the site of an abortion clinic...
...this intimidation campaign could be extremely effective...
...And given that most of these people are just ordinary homeowners, with no eagerness to martyr themselves over constitutional principles, Jeremy A. Rabkin is an associate professor of government at Cornell University...
...A few years ago, Senator Jesse Helms publicized the fact that the National Endowment for the Arts was funding, among other curiosities, a photograph of a crucifix in a jar of urine...
...But let the government fund a church group counseling sexual abstinence—as it did in Bowen v. Kendrick (1988)—and the same legal authorities (joined by four justices of the Supreme Court) insist that this is also an intolerable affront to the First Amendment...
...Some of the demonstrators were certainly behaving improperly in harassing clients going in and out of the clinic...
...No one should be surprised if federal courts, already leavened with Clinton appointees, decide that HUD's sword should be blunted but that HUD's zeal-ous investigators should not be entirely disarmed in this venture...
...Also the burning of the American flag (U.S...
...The court has even been prepared to swallow measures that directly penalizeordinary speech, when it is the sort of speech now considered politically incorrect...
...One can assume that the ACLU would be screaming with outrage if a state tried to triple the penalties only for those shoplifters or vandals who had previously advocated the abolition of private property...
...The flaunting of four-letter Anglo-Saxon words on the back of a jacket turned out to be a "mode of expression" protected by the First Amendment (Cohen v. California, 1971...
...It is not clear why freedom of association could not be defended for retiring bigots in a quiet private school, when it was so eagerly asserted for loudmouthed brawlers staging a public rally in a very sensitive location...
...L iberals used to think that free speech—"uninhibited, robust and wide-open," as Justice Brennan used to say—would challenge the smug, self-appropriation of America's middle-class Babbitts and so make for a more tolerant society...
...Of course, they have reason to hope that courts will take a firm stand for free speech, for the right to associate freely, and for the right to petition the government for redress of grievances, as all these rights are supposed to be guaranteed by the First Amendment...
...The particular facts of a particular case may require special consideration...
...And why not...
...protective restraining orders of some kind were probably appropriate...
...Bad publicity forced HUD Secretary Henry Cisneros to order the termination of the investigation against citizens in Berkeley—the case that had received the most media attention and had the most blatant appearance of a vendetta against political opponents...
...The First Amendment is not absolute...
...Of course, the Supreme Court still remains highly committed to free speech when it isn't distracted by appeals to (continued on page 80) The American Spectator October 1994 61 CONSTITUTIONAL OPINIONS (continued from page 61) "equal opportunity" and "civil rights...
...HUD calls such activity unlawful "discrimination against the handicapped" (federal courts having by now interpreted the term "handicapped" to cover drug addicts, alcoholics, and the mentally ill, all of whom figure prominently among the homeless population...
...And all these cases are really more complicated than can be conveyed in a brief summary...
...The point, of course, is to intimidate potential critics...
...The federal department even announced that it was abandoning the investigation that had provoked the misunderstanding...
...Department of Housing and Development (HUD) has been threatening suits against American citizens who dare to protest the siting in their neighborhoods of HUD-funded shelters for homeless people...
...And right-to-life advocates...
...v. Eichman, 1990...
...In the mid-1980s, the Supreme Court held that the Junior Chamber of Commerce—the Jaycees—could not invoke the constitutional freedom of association to escape from a state law requiring the group to admit women...
...But the court's civil libertarian zeal (on those days when it isn't distracted) is not entirely reassuring, either...
...But after a while, only the willfully blind can fail to notice the emerging pattern here: almost every time the court is faced with a choice between the First Amendment and some measure to extend "equality," the First Amendment takes the back seat...
...Do they have a right to exclude proponents of abortion from joining their organizations and totally changing their character...
...The Supreme Court now holds that the First Amendment protects flag burning—but permits the imposition of special penalties on someone who burns leaves with racist intent...
...I am no longer so sure what to expect...
...Maybe it would be safer for the Seattle citizens and others caught up in HUD's censorship program to deny that they are ordinary Americans, claim instead to be misunderstood Nazis and throw themselves on the mercies of the ACLU...
...Liberal champions of "civil liberty" remain strong for free speech on some days, too...
...But as Justice Scalia demonstrated in his dissenting opinion, the actual injunctions were enforced not just against disruptive hotheads in a particular organization, but against anyone who happened to agree with the right-to-life position, even those not participating in otherwise improper conduct...
...But HUD's version of "civil rights" remains on a collision course with the First Amendment...
...But the Supreme Court looked at this parallel measure (singling out people with bad racial views—in this case, a black hoodlum hostile to whites) and declared it to be entirely consistent with the First Amendment, because, while it only applied to people of particular opinions, it only applied to them after they had broken laws applicable to everyone else (Wisconsin v. Mitchell, 1992...
Vol. 27 • October 1994 • No. 10
