Monday, September 5, 2016

The First Amendment ~ Part Deux

My friend Orit passed away on Friday. She'd been battling cancer for about 14 years, and I do mean battling. She waged ceaseless war on that disease. Bound and determined to live long enough to see her 4 sons all b'nei mitzvah, she lived on to see them graduate from high school, then college. Long enough to see one married. She was possibly the bravest, strongest, most determined person I have ever known. Our hearts are broken. May her memory be a blessing for her husband, her boys, her family, and all of us who had the unique privilege to know her. 


For today's rant, I want to begin with The Constitution. Specifically, I want to talk about freedom of expression and the boundaries set within that august document. It's important to know about those boundaries and civic responsibility. It's so important that the Supremes have ruled on this issue several times. 
  1. Until 1969, flag burning was illegal in most states. That year, SCOTUS extended the freedom of expression protection of the First Amendment to the flag. The person who set fire to the flag, however, could be charged with a misdemeanor for starting a fire without a permit. 
  2.  Texas v. Johnson491 U.S. 39 (1989) - The courts affirmed the protected nature of freedom of expression to include non-verbal expression under the First Amendment.
  3. Congress passed an anti-flag burning law called the Flag Protection Act of 1989 under George Bush I, but it was struck down in the Supreme Court in 1990
  4. United States v. Eichman496 U.S. 310 (1990) - SCOTUS reaffirms Texas v Johnson, and goes further by invalidating a federal law against flag desecration as a violation of free speech as protected by the Constitution.
  5. In writing the majority decision, Justice William Brennan states: If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,”    
....Simply because society finds the idea OFFENSIVE OR DISAGREEABLE.

That is one ginormous statement. 

The First Amendment is not nearly as simple as it sounds: 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances .
We've had this conversation before. We've had it several times in this space. But today, I want to address the decision of National Football League player Colin Kaepernick not to stand during the national anthem:
I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color....To me, this is bigger than football and it would be selfish on my part to look the other way.
Freedom of expression is a Constitutionally guaranteed right. If We, the People are to cherish and protect the freedoms guaranteed in the Constitution, we cannot cherry-pick who gets to exercise those freedoms.

Okay, now that we've established that. Let's look at the other side. 

Exercising the right of free speech is not without peril; there can be backlash. Mr. Kaepernick has been condemned by many for his refusal to stand. He puts his contracts and endorsements in jeopardy. His refusal can ultimately cost him his job. He right to express himself does not come with immunity from negative response and the fallout from that response. Still, whether you agree with him or not, Mr. Kaepernick is definitely within in rights not to stand during the national anthem. 

You don't have to like it, you don't have to respect his opinion, you don't even have to agree with this action. But if you want to live in the Home of the Brave and the Land of the Free, you don't get to tell anyone how to what constitutes free expression. 

I like what President Obama said: 
Sometimes it’s messy. That’s how democracy works.

That same rule happens to apply to Donald Trump and his ongoing stream of hate speech. We're not talking about lying here. I'm talking about the hateful rhetoric that falls out of his mouth with some regularity. Short of shouting "FIRE!" in a crowded theater, he can pretty much say whatever he wants about Hillary Clinton, African-Americans, immigrants, and Martians for that matter. The issue becomes the people who  believe what he says, and expect his so-called policies can be enacted if , G-d forbid, he takes office. 

Bit of a conundrum, dontcha think? You can't force this guy to tell the truth, just like you can't force him to release his tax returns.

There's this Mexican wall thing. The guy changed his story mid stream.

Trump's statement:
Number one. Are you ready? Are you ready? We will build a great wall along the southern border. And Mexico will pay for the wall. 100 percent. They don't know it yet, but they're going to pay for the wall. And they're great people, and great leaders, but they're going to pay for the wall.
NPR Fact check: 
[Trump told reporters after meeting with Mexican President Enrique Peña Nieto in Mexico City that they had discussed the wall but not who would pay for it. Peña Nieto says he made it clear Mexico will not pay, and Mexico's foreign minister says this position is nonnegotiable. — Sarah McCammon]
Nor can you stop him from saying blatantly stupid stuff like, "Gee, I always wanted one," when telling the story about being handed a Purple Heart. He is well within his rights to continue to say really stupid stuff at will. That's freedom of expression; there's nothing in there about being quasi intelligent or if those two things are mutually exclusive. 

But people sign on to support this guy. It doesn't matter that his proposed policies are unconstitutional. As long as those lips are flapping, people will continue to believe that he can bully his way through Congress. My guess would be he was absent the day they taught checks and balances. Looking at how President Obama has struggled with an obstreperous congress, it's hard to believe Trump will do any better. Unless he continues to end run and countermand the Constitution. 

No discussion about Donald Trump's tenuous grip on reality would  be complete without mentioning his visit to Great Faith Ministries International in Detroit...and the draping of the tallit. My weird-shit-o-meter went off the scales with that one. I know some sects adopt aspects of Jewish ritual in their beliefs; this was gruesome. I can only hope Ivanka, herself an observant Jew, told him that was just wholly inappropriate. And just too creepy for words.

Wifely Person's Tip o'the Week
For those in the's Elul. Time for a bit of introspection. 


  1. Fact Check: Peña Nieto actually said, "Donaldo, we will pay for the wall right after you pay all those contractors you stiffed." (Of course he said it in Español -- wonder if Donaldo understood.)

  2. Two things: first, freedom of expression is one thing, using it's protection to incite violence is quite another. Obviously, this is an area where being a candidate when you incite will only warrant authorities coming around to warn you, once!, at last count. Though the Secret Service says there have been more. You are right that the larger problem is his supporters, but that is exactly why his rhetoric must be authoritatively addressed. We have young people being put in jail for lesser statements than have come from the mouth of the GOP candidate for President of the United States! Grrrrr ...

    Secondly, I had to share that I had every reaction you presented in response to the whole shawl thing! I don't have the background to be offended on religious grounds, but I, too, found this such a creepy thing to do. I still shudder at the thought. That he was allowed to come under his conditions also weirded me out. Thankfully, the majority of the congregation took a pass on attending that debacle. Is it Nevember yet?

  3. What I find sadder than Donald are the people that support him and plan to vote for him. I don't think he'll win, but the fact that probably 40% of our nation will vote for him is a bellwether of our future. The Republican party will continue what they started with Obama's election: spreading lies and tearing down the majority's choice so they can get their guy into the Oval Office next time. Damn the destruction it has and will continue to cause to our country. Their slash and burn technique allowed the weeds to grow in and take over.