Weaponizing The First Amendment

NY Times reporter Adam Liptak follows up on Supreme Court Justice Elena Kagan's end-of-term warning that the the right is "weaponizing" the FIrst Amendment in order to use it against classic liberalism in order to curtail labor, civil, voting, and human rights.

“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”

Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.

In 1977, many liberals supported the right of the American Nazi Party to march among Holocaust survivors in Skokie, Ill. Far fewer supported the free-speech rights of the white nationalists who marched last year in Charlottesville, Va.

There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.

“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”

Some liberals now say that free speech disproportionately protects the powerful and the status quo.

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

And that's where we are.  The right constantly uses the rights of free speech and religious freedom to justify actions taken against others, and then to prevent the government from curtailing those action, no matter who is harmed in the process.  It's patently ridiculous, and yet it's where we are.

It's not an accident that the right constantly conflates being able to discriminate and preventing the government from censorship as "First Amendment rights".  They've been doing it for decades, guys.  Their entire legal framework is built on it.  It's also no mistake that they are constantly conflating the right to discriminate and the right to not be discriminated against too.  They believe in both, but only if it applies to themselves.

And not anyone else.

Your Even A Stopped Clock Can Be Right Alert

For the first time in years, Dana "Dickwhisperer" Milbank actually wrote something that I didn't want to use a wrapping paper for fish and chips as he notes that Orange Julius's "hell no" 2010 speech on Obamacare warning the Dems what was coming is where Mitch McConnell and the GOP are now as the blue wave roars towards them.

Now I think I know how Boehner felt in 2010. We see Majority Leader Mitch McConnell (R-Ky.) vowing to ram through the Senate the confirmation of the decisive fifth hard-right justice on the Supreme Court, quite likely signaling the end of legal abortion in much of the United States and possibly same-sex marriage and other rights Americans embrace, in far greater number, than they ever did Obamacare.

One wants to cry out: Hell no, you can’t! But Republicans can. They have the votes. Democrats can and should fight, but the GOP controls the schedule, sets the rules and already eliminated the procedures that gave the minority a say in Supreme Court confirmations.

If anything, the fury should be far more intense on the Democratic side right now than it was for Boehner in 2010. The Affordable Care Act was the signature proposal of a president elected with a large popular mandate, it had the support of a plurality of the public, and it was passed by a party that had large majorities in both chambers of Congress and had attempted to solicit the participation of the minority.

Now we have a Supreme Court nomination — the second in as many years — from an unpopular president who lost the popular vote by 2.8 million. The nominee will be forced through by also-unpopular Senate Republicans, who, like House Republicans, did not win a majority of the vote in 2016.

Compounding the outrage, each of the prospective nominees is all but certain, after joining the court, to support the eventual overturning of Roe v. Wade, which has held the nation together in a tenuous compromise on abortion for 45 years and is supported by two-thirds of Americans . For good measure, the new justice may well join the other four conservative justices in revoking same-sex marriage, which also has the support of two-thirds of Americans. And this comes after the Republicans essentially stole a Supreme Court seat by refusing to consider President Barack Obama’s nominee, Merrick Garland.

You can only ignore the will of the people for so long and get away with it.

In a way Milbank is right, but frankly the Republicans have been getting away with it through incrementally tightening the screws on Democrats and making it harder and harder to resist them at the ballot box that voting alone isn't going to stop the GOP at this point.

We're going to be in the streets this summer, and long after I suspect as the Mueller investigation reaches its conclusion.  This is the part where we have to step in and do things, guys.

The conflict is coming.  It's been coming for years, but at this point it's time to admit that it's finally here.

 

Meanwhile In Bevinstan, Con't

Some rare good news here out of the Christian Republic of Bevinstan for once as a federal judge has struck down GOP Gov. Matt Bevin's Medicaid work requirements as "arbitrary and capricious".

A federal judge in Washington D.C. has struck down Kentucky's plan to start requiring some Medicaid recipients to work or volunteer in order to continue receiving benefits.
The ruling blocks Gov. Matt Bevin's administration from implementing the change, which was scheduled to start Monday in one Northern Kentucky county and extend to most of the rest of the state by the end of the year. 

Sixteen Kentucky Medicaid recipients sued the federal government in January to block Bevin's planned changes to the state's Medicaid program. The plaintiffs claim that Bevin's plan — known as Kentucky HEALTH — should not have been approved; they say it violates the 1965 law establishing Medicaid because it will reduce poor people's access to health care. 

Simultaneously, to uphold Kentucky HEALTH, Bevin is suing those same 16 Medicaid recipients in Frankfort before U.S. District Judge Gregory VanTatenhove. 

The Frankfort lawsuit is about a month behind its Washington counterpart, setting up the possibility that a judge in one federal circuit could strike down Bevin's Medicaid changes while a judge in another could say that he had every right to make them. 

Bevin says that if he loses in court and cannot prevail on appeal, he will end expanded Medicaid in Kentucky, which has extended health coverage to about 400,000 people with incomes just above the poverty line. 

"Kentucky HEALTH was developed in Kentucky for Kentuckians, and its validity ought to be decided in Kentucky," Bevin's attorney, Stephen Pitt, wrote in a May court filing before VanTatenhove. "This matter should be decided quickly so that the commonwealth can move forward with Kentucky HEALTH or withdraw from expanded Medicaid." 

While much of the controversy over Kentucky HEALTH has focused on Bevin’s 80-hour-a-month "community engagement" requirement, which could be satisfied by work, school or volunteering, the Washington-based suit also called attention to other new hurdles that Medicaid recipients will have to jump in order to keep their coverage. 

Those hurdles include monthly premiums, initially from $1 to $15, although they eventually top out at $37.50; monthly check-ins to report employment and income status; annual re-enrollments; and ongoing verification of extra tasks people must complete if they want to win back the vision and dental coverage they previously had as part of their basic coverage. 

Missing a payment or notification could trigger a six-month lockout on basic health coverage. Missing the enrollment window could mean waiting nine more months for the next opportunity. 

The Bevin administration estimates 95,000 people will lose their coverage over the next five years out of the more than 400,000 Kentuckians just above the poverty line who are currently enrolled in expanded Medicaid under the Affordable Care Act.

Bevin made this bluff back in January that if the courts blocked these work requirements, that he'd end Medicaid for 10% of the state or so.  He's locked into that now, as that bluff has been called.

What will he do?

We'll find out.