Tag Archives: free speech

Hamburg and the Constitution

10 May

The right to blog anonymously is a right. The Hamburg School District is trampling all over that right, and sends a poor message to the students it purports to represent

I have never read the “Hamburg Educational Ethics” blog, which is written by the “Concerned Hamburger” anonym, but whoever writes it is a WNY blogger and, as far as I’m concerned, a colleague. 

I don’t know the first thing about what goes on in the Hamburg schools, but I know that the district doesn’t have to like what the author of that blog writes – in fact, they can hate it. But that doesn’t give them the right to serve a subpoena to “out” its author. 

Criticism of a school district is, after all, political speech – in 1st Amendment jurisprudence, political speech is afforded the very highest protection from government intervention or harassment. It is unconscionable that the district – which is a government entity – is so blatantly violating the 1st Amendment in an attempt to silence a critic. This is the stuff dictatorships do. It is absolutely unacceptable in this country. 

One of the blog’s anonymous commenters, who is also subject to the district’s subpoena, wrote this

Dear Readers….

Recently Concerned Hamburger received an email notification from Google indicating that the Hamburg School District, through their attorney Dick Sullivan of Harris Beach~ a commercial real estate attorney moonlighting in education and constitutional law~issued a subpoena to Google demanding the identities of Concerned Hamburger, Super and Klozman.  Immediately, Concerned, Super and Klozman, remaining anonymous,  hired a constitutional attorney to quash the subpoena.  You see readers~ we have the right in this country to voice our opinions and state the facts as we see them.  For almost three years and approximately 300K page hits, Concerned Hamburger has been operating as a citizen journalist reporting on the antics of the public faces of the Hamburg School District. Concerned is dedicated to reporting, and will continue to write on the school district despite their efforts to silence me and others.  It has been reported to Concerned Hamburger by many sources, that Dr. Joan Calkins has a vindictive and demonic alter ego.  Joan’s “other self ” has reported thoughout the Hamburg Community that she will unmask Concerned Hamburger, and she will cause financial harm to the victims of frivolous and baseless lawsuits she and Steve concocted.  Fortunately, turn around is fair play, and it seems that the plans of the District, the Bored of Education, Mr. Abramovitch and others will have unintended consequence never deemed fathomable on the onset of their witch hunt.  

Frankly, if the behavior of the the Bored of Education and Mr. Achramovitch was not so egregiously corrupt, there would be no material to report.  Instead, you the reader~of which there are many~ have been give factual, and sometimes humorous, accounts of the insidious behavior. 

Concerned Hamburger has already spent thousands of dollars attempting to protect their rights, and it is likely the the district has spent tens of thousands on this witch hunt.   This latest stunt by Steve and Joan et. al. should shock the conscience of any reader.  Taxpayer dollars intended to go to children to support a fair and balanced education in accordance with NYS Constitutional Law instead is being used to strip  Federal and State Constitutional rights from private citizens- who are taxpayers. Steven Achramovitch ought to be fired immediately, and charges should be filed against each and every board member individually and collectively. A groundswell of anti-Joan and Steve support it growing across this community, and it appears this is only the beginning. 


Concerned Hamburger 

That’s the nice thing about the 1st Amendment’s protection of political speech – if you don’t blatantly libel someone (that is, knowingly or negligently publishing a false statement of fact, depending on whether the subject is a public figure or not), you can write whatever you want. For instance, the author above refers to people as  “corrupt”, “frivolous”, “vindictive” and “demonic”. Those are statements of opinion, not fact, and opinion cannot be false or true – it is protected speech. 

A quick scan of the front page of the blog reveals recitations of facts dealing with school policy and budgeting, and opinion about those facts. Nothing appears to be defamatory or otherwise actionable. The fact that the district took action against the bloggers and not individual members who feel insulted helps enhance the Constitutional issue.

Bloggers have rights with their foundation in the 1st Amendment.  Anonymity is sometimes used by bloggers to shield them from repercussions at work. In 1995, the Supreme Court held that anonymous speech is protected speech

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

The Federalist Papers were written by anonyms. The Hamburg school blog may be no Federalist Papers, but it is still important to protect anonymous political speech, and the district’s efforts to use the courts to chill speech critical of it is reprehensible. 

While a minority of western New Yorkers expresses weeks’ worth of righteous Constitutional outrage over a gun law that only slightly tightens what were already the most restrictive gun laws in the country, this – this infringement on protected political speech deserves at least the same reaction.  

Perhaps the district’s social studies teachers can add this to their curriculum. 

SCOTUS Follow-Up

22 Jan

Back in September, when the case was being argued, I wrote a piece on the corporate citizen-hood/free speech suit appearing before the Supreme Court. At the time, I advocated for free speech to be upheld, and it was yesterday, by the predictable 5-4 vote. Now the hand-wringing about the evils of irresponsibile corporations has begun anew. Alan is conflicted about whether its good or bad. Others are less generous, and seem to believe 2012 was reality TV. But don’t worry – the world is not ending, and this decision is more narrow than the hand wringers admit.

First, the principle. Corporations, for-profit and non-profit, special interest and business related, big and small, are just groups of people who get together for a similar purpose. Why those people should lose their collective right to free speech once they join that group is not at all clear. The specifics of this case are important: the FEC regulated a blatantly political movie 30 days out from an election, because it was political speech. If that political speech can be restricted, what else? Corporations produce books on political topics, and corporations produce “news programs” on political topics. At the moment, Newscorp (FOX) and GE (MSNBC) get their opinion out, but few others.

Second, the reality. First, and most importantly, his ruling DOES NOT ALLOW UNRESITRICTED DONATIONS TO POLTICIANS, no matter what opinion you may read to the contrary. It allows corporations to run as many TV ads as they want within 30 days of an election. Up until now, politicians and parties could only run ads during that time. Since special interests could, and can still, donate unlimited soft money to the parties, they still had the ability to advertise, but only when using the pass through. The main difference this decision may make? The “Paid for” byline at the bottom of the ads will change from DNC to Your Friendly Neighborhood Energy Companies or CSEA.

The second reality issue is that corporate money is better spent many other ways. If I am a large evil corporation that wishes to influence policy, my money is better spent lobbying a specific senator on a specific committee, rather than television advertising. This does not open the flood gates to corporate and union money in politics. Its already there, and being spent more effectively on K-street lobbying firms. 

Which leads us to the final point. Chris Smith uses yesterday’s ruling as an opportunity to advance his cause of publicly funded elections. Its a campaign that is as earnest as it is misguided and impractical. The goal itself is laudable: politicians uncorrupted by monetary influences would presumably create better policy. The best argument for this is the current presence of money and absence of statesmanlike thought. But disenfranchisement and limiting free speech are not the way to achieve this. Our free public square discourse has devolved into a shouting match. But allowing no one to speak (or everyone to whisper) is worse. There is an illiberal reflex of liberals, when confronted with choices they do not approve of (SUVs, suburbs, skipping healthcare insurance, political ads, etc), to seek to limit the choice options to only acceptable alternatives. A state funded election system creates an echo chamber and feedback loop. Money is the outside, non-governmental influence. It may be corrupting, but it is also freeing. I want outsiders, non-government groups influencing my politicians. The alternative is a self-perpetuating system moved beyond the reach of the American public to change it.

Free Speech at the Supreme Court

9 Sep

Obama’s speech tonight in front of Congress is important. But all I seem to do lately is write about Obama, so I’m going to dive into a bigger news event that happened today: the debate over corporate personhood and free speech at the Supreme Court today.

Before you groan and move on, if you are an activist, community organizer, or volunteer, hear me out and you may be surprised which side you end up on. The ACLU and NRA are on the same side on this one – that should tell you something.

The case in question involves Citizens United, a right-wing non-profit corporation that produced a mockumentary called “Hillary: The Movie,” just in time for the last election cycle. Because the subject of the movie was so obviously political, the Federal Election Commission determined it was political speech, and thus subject to campaign finance laws. Thus, it could not be shown, distributed, or aired near election time. Citizens United sued, saying they are unfairly blocked from distributing their product – thus where we are now.

Because campaign finance laws can be complicated and interesting only to John McCain, most news media outlets have not adequately covered this story. What coverage there has been has been nearly entirely hyperbolic, jumping straight to dire predictions of evil corporations destroying our democracy. For a move evenhanded overall analysis, I would recommend the Lehrer News Hour from today (not yet loaded as I write this). Or for a totally biased opinion from Ted Olson, who argued the case for Citizens United in front of the Supreme Court today, go here.

What little attention has been paid to this case has revolved around the unusual nature of the hearing today: it is a do-over the Court asked for, so it could consider a larger question. When the case was originally heard, it focused on narrow technical questions of whether the McCain-Feingold laws allowed web streaming of the movie. However, the Court asked the lawyers to reargue the case focusing on whether campaign finance laws should be applying at all. Thus the breathless cries of corporate dominance, in a world with no regulation and rampant bribery and scandal, and the reversal of 102 years of precedent.

Let’s consider a couple relevant facts before I tell you why free speech should be upheld here:

1) The laws the Supreme Court is looking at striking down are very narrow – indirect funding during a campaign. Corporate limits on direct funding of candidates would still apply. The question is not whether Ford can give $12 million to John Dingle (D-MI) to run for reelection. They still can’t. It’s whether Friends of the Earth can run ads 25 days before the election talking about how bad Rep. Dingle is to the environment.

2) Twenty-three (23!) states already allow corporations to spend unlimited amounts of indirect (soft) money 30 days out of an election in state and local races. There is no proof that those 23 states have any worse corruption than the other 27 states. Those 23 include well run states (Virginia) and poorly run states (California). The campaign finance laws seem independent of competence.

3) The precedent is not nearly as clear as many would argue. Congress did start regulating corporate donations to political campaigns in 1907. However, these laws were never really tested against the court until 1990 and 2003. Two cases in the last 19 years is hardly a large body of work, and McCain-Feingold is less than a decade old. Reversing some of its provisions would not be a great upset.

In my opinion, the Supreme Court should strike down large portions of McCain-Feingold, including these limits on corporate contributions. The Court has established as precedent that money is speech, because it takes money to be heard on our crowded airwaves and internets. Therefore, corporations should be treated as individuals (known as corporate personhood, by the wonks). Whatever limits we put constitutionally on individuals, should apply to corporations as well.

Why? Because corporations are nothing more than groups like-minded individuals. It is a legal framework that allows groups of people, with free speech rights, to better organize to achieve an objective. That objective may be to pump natural gas (Halliburton) or sell cars (Basil Ford) or do the Dems research dirty work (Brookings Institution). Whatever it is, as long as they pay taxes (i.e. are not a 501(c)(3) tax exempt corporation – different rules there), they are not allowed the same rights. As Chief Justice John Roberts pointed out today, why can ten individuals give $1000 each, and a partnership (LLP) of 10 individuals give $10,000, but a corporation can give nothing? Why should I surrender my right to free speech when I join a group? While Exxon may want to give money to Drill, Baby, Drill, other advocacy groups exist solely for the purpose of having their voice politically heard. Thus the ACLU and NRA on the same side.

But what of the naivety argument? That free speech sounds great, but giving corporations free rein will utterly distort the political process? I would argue that if you are worried about money influencing politics, there are bigger fish to fry. If I am Exxon, and want to drill, is it better to spend $8 million on advertising, with a small rate of return, or $8 million on lobbying the exact Senator on the exact committee I need to pass a bill. Likewise, some corporations are currently allowed political speech under different guises. Why can News Corp (Sean Hannity) or Disney (ABC) or General Electric (Rachel Maddow) have their blatant political speech heard, but not others? What about books on political subject matter? Most books are published by corporations – can Random House publish a new Keith Olbermann book within 30 days of an election? I don’t think we want to start regulating this kind of speech.

Corporations are just groups of persons. Regulate them under the same laws as the people who make them up.

Fake Shock of the Day: Nazi’s

6 Aug

Three points:

1) John McCain is absolutely right (from Twitter/Facebook today):

Town hall meetings are an American tradition – we should allow everyone to express their views without disruption – even if we disagree!

Town hall meetings, in my opinion, should look like this:

Freedom of Speech

Being rude and disruptive is obnoxious at best, and detrimental to democracy at worst. Everyone has their say, and then the best idea wins. Disrupting is wrong when Code Pink does it, and wrong when anti-healthcare screamers do it. And whoever pays for Code Pink or the anti-healthcare folks to scream doesn’t matter – money is speech, and the super rich and drug corporations have an equal right to free speech.

2) As Pundit points out, comparisons to Nazi’s should be saved for, well, Nazi’s. Or Slobodan Milosevic. Or other similarly horrible destructive hateful evil-filled institutions. You don’t call someone a Nazi simply because they disagree with you. America works because there is a basic assumption that both Dem’s and R’s love this country and want the best for it – we just disagree on how to get there. Let’s not fuck that up.

3) Having said all that, I threw up a little bit in mouth today watching the shock (SHOCK) from liberal commentators about Nazi allusions from anti-healthcare protestors.

Where was the shock (SHOCK) from these anti-war commentators when their anti-war brethren did the same thing?




Rush is an idiot, and shouldn’t compare Obamacare to Nazism. But where was the shock (SHOCK) during seven years of Bush-Hitler comparisons from the left? I’m going to get pissed if I have to spend the next 4 years pointing out how everything the Left is mad at the Right for doing now, they did themselves while Bush was President.

Free Speech

5 Aug

An angry mob that shows up at a town hall meeting for the sole express purpose of intimidating the politician, shouting down legitimate questions from voters, suggesting that the congressman commit suicide or hang him in effigy.  When the objective is to intimidate and quash debate, rather than promote your own point of view, then the whole “free speech” argument must fail.

No one is denying the free speech rights of people who oppose health insurance reform.  But they would deny the free speech rights of those who support it or want to find out more.