You're Probably Gonna Hate This But.....

My five days in Palm Springs were fabulous. The weather was not as great as it could've been, but it didn't stop me from seeing friends, shopping in truly interesting shops, eating really good food, and seeing the David Hockney exhibit at the Palm Springs Art Museum. I even squeezed in some mah jongg; I even managed to win a few games  for a change. And knowing I dodged a blizzard back on the tundra, I sure laughed a lot on Friday morning when I woke up to snow on the mountains. 

I wrote a haiku to mark the occasion:

Snow on mountain tops

just in case I felt homesick

Not bloody likely.

I definitely coulda stayed longer. Maybe next year.

Lilies
iPhone printed
on paper - Oct. 2009

I had planned to write a bit about the David Hockney exhibit and his use of his iPad and Iphone to create his latest works. A new medium, I suppose, but I had a bit of difficulty equating something drawn on an iphone with something considered great art. But that's my problem, not the artist's. I supposed the same conversations were held about photography and whether or not a machine captured image could be classified as art. The short answer to those two questions is a resounding YES, even I don't always grok the reasoning. 

Since the Senior Son is a graphic artist and knows about this stuff, I sent him some pictures and will have an in-depth conversation about this. This is one of those moments I wish Ziggy was still around. He was a huge Hockney fan and he would have a lot to say about using iPhones and iPads for creating art. No idea what that would be, but it woulda been a fun debate.

Mahmoud Khalil

What isn't a fun debate is the arrest of Mahmoud Khalil, a pro-Palestinian protest leader at Columbia University. In the US legally, he has his own valid green card, and is married to a US citizen. At this writing, he has not been charged with a crime, something that might suspend the green card. But that is not the case. New York Magazine did a pretty thorough profile of the situation and every American should be concerned.

If he was American born, would he have been arrested? Would he have been detained by ICE or shipped off to a prison in Louisiana? Of course not! His right to free speech is guaranteed by the Constitution, and to be accurate, he has those protections as a green card holder. Donna Lieberman, executive director of the New York Civil Liberties Union called the arrest an affront to his right of free speech. 

The Trump administration’s detention of Mahmoud Khalil — a green card holder studying in this country legally — is targeted, retaliatory, and an extreme attack on his First Amendment rights. 

Although I'm not her biggest fan, kudos to Rep. Alexandria Ocasio-Cortez for posting this on social media: 

If the federal government can disappear a legal US permanent resident without reason or warrant, then they can disappear US citizens too. Anyone - left, right, or center - who has highlighted the importance of constitutional rights + free speech should be sounding the alarm now.

I cannot speak for anyone else, but I remember when the Nazis wanted to have a parade in Skokie, Illinois, a very Jewish suburb, and after being denied a permit to assemble, took the case all the way to SCOTUS who then sent it back to the Illinois Supreme Court. There were two parallel cases involved, but the decision in both rested on the right of free speech as guaranteed in the first amendment. Go read about it and you'll see why I was reminded of that case. What's important was that ultimately the Nazis had the right to assemble. No one was arrested. No one was grabbed by the INS. And life went on. 

No way am I implying I agree with Mr. Khalil and anything/everything he stands for. I don't. I think his positions are abhorrent, but he has a right to talk about them. Should Columbia University have taken punitive action...like expelling him? If he broke their rules, sure. But that's their decision, not a police or political action. 

This is yet one more move toward an authoritarian government. Just one of many in recent weeks. But this one just flies in the face of the Constitution. We are a nation of laws guided by the Constitution. To be sure, there have been laws ultimately deemed unconstitutional, but until the Constitution is suspended, our rights as laid out in the Bill of Rights and in Amendment 14 cannot be infringed upon. And Habeas Corpus is not one of them. Except... 

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Do you know what a Writ of Habeas Corpus is? Probably in some amorphous way you do. But this is how the US Marshal Service defines it:

A writ of habeas corpus orders the custodian of an individual in custody to produce the individual before the court to make an inquiry concerning his or her detention, to appear for prosecution (ad prosequendum) or to appear to testify (ad testificandum). State courts may issue such writs to prisoner custodians to produce federal prisoners.

Habeas Corpus literally means, "you have a body," and in practice it challenges the holding of a person. The person must be brought into court by the "holders." and then prove why their detention is legal. The question in the case of Mr. Khalil is whether a crime or an opinion has been committed. If it's an opinion, they have no grounds to hold him. Can his opinion be a crime? That's another story. And therein lies the rub. 

I am sure President Felon's minions can come up with something; they're so creative. There is a slippery slope thickening beneath our feet. IF they keep him without cause, who will they snatch next? ICE threatened his pregnant wife even though she is a citizen. Sound more like Los Desaparecidos, The Disappeared Ones of Argentina, Brazil, Chile, Colombia, Guatemala, Uruguay and Venezuela, no? Use your imagination.

Again, I DO NOT agree with what Mr. Khalil says, or his politics, or his tactics, but I do have to stand up for his right to protest. NOT the right of protesters to harass or attack or browbeat or beat up people who object to their protest. Chanting is not illegal, but physicality and violence are; those is arrestable, detainable, and punishable by jail time. 

Once upon a time, I was one of those college protester types. I waved signs, chanted slogans, and vociferously protested a war...the Vietnam one. We were mostly peaceful...we were the peace movement, after all... but we had encampments, handed out flowers, dealt with cops (aka the pigs,) the national guard, were hosed, rounded up, got arrested on occasion, and four were killed by National Guardsmen at Kent State. Still, at no time did our belief in our right to free speech ever waver. It couldn't. We were fighting for that as much as we were fighting for the other stuff. We were, first and foremost,  Americans. We had rights.

I can despise with my entire being what these pro-Palestinians are advocating....the destruction of Israel and death to all Jews... but as sick as it makes me, they have the right to make their views known in the public square. And I have a responsibility to advocate for that right. 

Meanwhile, back at the ranch...

The Wifely Person's Tip o'the Week...an oldie but a goodie

 Aaron Sorkin wrote it better than anyone

and Michael Douglas's delivery was masterful

America isn’t easy. America is advanced citizenship. You gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say: You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the land of the free.

The First Amendment ~ Part 4: It Ain't All Governmental Prosecution

Personally, I think Harrison Butker is a total douche bag. The previous statement is my personal opinion. I thought his speech at a Catholic college was incredibly demeaning and offensive to all women no matter what their life choices may be. Again, this is my personal opinion.

Do I think he should be fired from the Kansas City Chiefs? No, not my call, although if he did, I wouldn't argue with their right to can his misogynistic ass right outta the locker room. 

I commented on this very issue on a friend's post on FaceBook, writing:

As specious and ridiculous as the speech was, he is entitled to his opinion. He is also entitled to address those graduates espousing Catholic doctrine at a Catholic school. I may not agree with what he says, but he does get to say it, and I will fight tooth and nail for his right to express his beliefs. He was not urging violence, genocide, or the annihilation of another country. ..and that was okay on a whole lot of other campi. His speech was probably appropriate for his audience.

Look, there are people that believe deeply in what he said. He did nothing to hurt the team. To demand his removal is really a form of censorship and a challenge to free speech. And it has NOTHING to do with football.

It seemed to be implied that he should be chastised or penalized in some way. He was invited to speak probably because of his beliefs. He gets to say them to that audience. So long as he's not advocating violence or yelling fire in a theater, he gets to say what he thinks.

And  so I was eviscerated, excoriated, any number of names, and basically told I did not understand the First Amendment of the Constitution of these here United States. The following was my absolute favorite response:

ma'am, you proudly display an apartheid genocidal state's flag on your pfp [sic], so my expectations for your reading comprehension are low going in. But I'm a fighter so I'm gonna give it the old college try.

Freedom of speech doesn't mean freedom from consequence. It means freedom from prosecution. That means the cops can't arrest you, you can't be thrown in jail, your voting rights won't be stripped away etc. It means the GOVERNMENT can't use our tax dollars to punish you over your opinion, however shitty.

Oh and #freePalestine

(Just in case you forgot what the real issue is.)

If the writer was correct in that free speech only means freedom from prosecution, I'm gonna guess he never read the First Amendment or the Constitution, and that perhaps he's the one with the reading comprehension issue.

For clarity's sake, here's the Amendment as it appears in said Constitution:

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.

Mebbe I missed the part about consequences. Nowhere does it or I mention freedom from consequences for shooting one's mouth off with incredibly misogynistic comments, but that wasn't what my comment was about. I merely said he was speaking to an audience of like-minded people and could say whatever the hell he wants. He did nothing wrong. (Did I neglect to mention that Tavia and Grace Hunt, the wife and daughter of team owner Clark Hunt, seem to agree with what he said, so I'm guessing firing his ass is not happening anytime soon. 

Just like Feckless Loser can lie like a rug, spew toads and worms each time he opens his mouth, and can advocate for the overturning of an election because he has the right of free speech no matter how anyone feels about the bullshit that flows like Niagara Falls. Not even gag orders seem to stem the flow. 

Now, hold on to those thoughts for a moment as we turn our attention to the end of the semester and the end of the Tentifada.

Institutions of higher learning (?) are capitulating to the demands of the mob. Below is taken from today's edition THE FREE PRESS For Free People. Scroll down...it's worth the trip...to the section called → Campus capitulation:

The latest to strike a very one-sided bargain with students is Harvard. In exchange for the protesters going home, the college has announced it will consider adopting boycott, divestment, and sanctions (BDS) measures against Israel, setting up a Palestinian Studies Center, and not taking any action against 80 protesters... 

Harvard is only the latest elite school to promise to consider BDS measures. Colleges to have made that concession include:

Princeton, which will also consider ​new academic affiliations with Palestinian scholars, students, and institutions, and a new Palestinian studies course.

Northwestern, which has also committed to build a house for Muslim student activities and to fundraise for scholarships for Palestinian undergraduates.

Brown University, which agreed to vote on implementing BDS.

Rutgers, which agreed to accept at least 10 displaced Gazan students and hire additional professors who specialize in Palestinian and Middle Eastern studies.

Johns Hopkins, which will grant amnesty to all student protesters.

University of California, Berkeley, which agreed to ensure that their academic partnerships don’t exhibit anti-Palestinian discrimination, which protesters say is a “pathway to boycott of Israeli university programs.”

University of California, Riverside, which has committed to discontinue business school study programs in Israel. It also promised a “review of Sabra Hummus.”

I love the part about Sabra Hummus. For the record: the company was started by Zohar Norman and Yehuda Pearl in 1986 in Astoria, Queens, and is now headquartered in White Plains, New York. In 2005, Israeli food manufacturer Strauss bought the company, and is now co-owned by PepsiCo and the Strauss Group. Who are they gonna go after next? Microsoft? They recently built a huge campus in Herzliya. Maybe the protesters should all uninstall OFFICE from their computers. 

But that's not the part that scares me. I wanna know more about Palestinian studies. Will they be teaching actual history or only 20th century history? Will they teach about the expulsion of the Jews from Arab countries in the mid 20th century, or only about the Palestinians who sought refuge in Lebanon and Jordan where they were denied basic refugee rights? Are they going to support Hamas as viable a government in a new country or are they going to teach how to support an emerging economy? 

I actually think Palestinian studies is not the worst idea on the planet. Those who are rallying to their support need to understand the roots of the struggle and how a solution that ultimately gives equal footing to two states is probably the best solution. 

That said, an article in The Palestine Chronicle: From the River to the Sea and the Alleged Proposed Genocide – Why We Urgently Need De-Zionisation by a fellow named David Miller addressing the dismantling of Israel is terrifying for what it ultimately states:

But, in truth,  the slogan absolutely does mean the ending of Israel as a state form, the dismantling of the “Jewish state”. The reason is that it is impossible for Palestinians to live as “free and equal” citizens without the creation of a new state in which such desires can actually be accommodated.

But does the “destruction” or “dismantling” of the “State of Israel” mean genocide of the Jews? It should be obvious that it does not and it’s dishonest to pretend otherwise. It means the dismantling of a state form established by Zionists. Even if many people died in such a process this would not be a genocide against the Jews since there is no evidence that anyone wants to kill the Jews as Jews as opposed to wanting to end the structural oppression that the “state of Israel” brings with it.

If you believe that last line, I have a bridge in Brooklyn I'd like to sell you. 

The world has seen what the Taliban did in Afghanistan, what Hezbollah does in Lebanon, what ISIS did in Iraq and Syria....and David Miller thinks we're gonna fall for that? Guess again, Mr. Miller. All evidence is to the contrary.  Name one Arab state where non-Muslims have full civil rights and live in peaceful equality under Sharia law. I'm not so certain one exists these days. 

Meanwhile, back to Harrison Butker....

Words said aloud or written out or published carry with them a certain amount of weight. If you speak, write, or publish words that are hurtful, be prepared to have them come back and bite you. If you espouse an unpopular point of view, position, or opinion, be prepared for the backlash; it will come. BUT do you have the right under the First Amendment to state your opinions aloud, in writing, or in print? Absolutely. You can insist an election was unfair and stolen...sure, Feckless does that daily. You can demand Jews vacate the land of Israel all you want... but it doesn't mean it's gonna happen. Harrison Butker might have gone on the record praising women who stay home instead of working, but that's his belief. He gets to cherish that all he wants. Even when he advocates for a ban on a woman's medical autonomy, he gets to have that opinion. He does not, however, have the right to force that opinion on the rest of us. That is an entirely different matter.

And he is certainly going to reap all the castigation, criticism, mockery, and assorted consequences the disagreeing public can heap on him. We're entitled to our opinions, too.

The Wifely Person's Tip o'the Week

I booked tickets to Tel Aviv this morning.

It's a good time to plan a trip.

Just sayin'.

Bonus Content - 

Here are the other three episodes I've written on the First Amendment

We, the People ~ The First Amendment

The First Amendment ~ Part Deux

The First Amendment ~ Part 3: A primer on Free Speech

The First Amendment ~ Part 3: A Primer on Free Speech

Lady Justice at the Supreme Court

Last week, a few readers took issue with whether or not Joe Rogan's show is a freedom of speech issue. I heard from both sides. It's probably worth a closer look at the First Amendment: 

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.

The establishment clause alone can fill libraries. Peaceful assembly is another catchall phrase that cannot be easily defined. But today, I am only interested in the one in the middle: freedom of speech. The Founding Fathers weren't terribly specific about what constitutes freedom of speech.In the American Bar Association's Human Rights Magazine (October 2018,) Stephen Wermiel cites Nadine Strossen in his article, The Ongoing Challenge to Define Free Speech, suggesting there is a somewhat nuanced difference:

American Civil Liberties Union national president Nadine Strossen notes in her article, there has long been a dichotomy in public opinion about free speech. Surveys traditionally show that the American people have strong support for free speech in general, but that number decreases when the poll focuses on particular forms of controversial speech.

That is where the metaphorical rubber meets the road, folks.

[Note to my gentle readers: For the purposes of today's episode, I am using Cornell University's Legal Information Institute  (heretofore CULIL) page on the First Amendment for basic legal definitions. ] 

How does one decide what is controversial and possibly unprotected speech versus freedom of speech as protected in the First Amendment? Over the last couple o'hundred years, SCOTUS has heard lots of freedom of expression cases. But it's safe to say that over time, there has been a standard set for what cases can go up the food chain. 

One also has to be aware that while community standards do evolve over time, the courts must also weigh those changes in considering which cases will be heard. The best example I can present is in the idea of obscenity. What was shocking in 1822 was clearly different by 1922...just look at women's hemlines....versus what is shocking in 2022. There is no way to uphold a century old standard! But the courts are faced with that consideration:

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. California. The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value. (CULIL)

That contemporary community standard has changed exponentially with the advent of the internet and instant news. Surely that which is an acceptable community standard in New York or LA might not be acceptable in Des Moines or Jackson. Does the court have to take into account regional proclivities? Yes and no; they have to be "culturally" aware and understand the circumstances in which the potential violation occurs. Which means that the standard, whatever it is, is actually rather fluid. 

The CULIL states:

The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. Generally, a person cannot be held liable, either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion and such statements. A less stringent test is applied for content-neutral legislation. 

The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the forum in which it takes place.    

So where does hate speech fall, or, more importantly, what constitutes hate speech?

In their position paper on Freedom of Speech, the ACLU points out 

If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure. In that sense, all First Amendment rights are "indivisible." 

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

In these cases, the parameters do not include unprotected speech. Congressional Research Services lists those categories as specifically: 

• 1 Incitement. 1.1 Incitement to suicide.
• 2 False statements of fact.
• 3 Counterfeit currency.
• 4 Obscenity.
• 5 Child pornography.
• 6 Fighting words.
• There are two other categories that are not protected: 
• Speech Threatening the President
• Speech owned by others

Hate speech only becomes unprotected speech if/when it directly incites criminal activity or consists of specific threats of violence targeted against a person or group. (from the ALA website.)

So the issue with Joe Rogan is not if he is protected by the First Amendment...clearly he is...but whether or not a non-governmental company like Spotify should be broadcasting his podcasts. This probably has more to do with what his contract says than what individuals want. Sure, Spotify can terminate a contract, pay out the penalty, and move on, but what message does that ultimately send to listeners/subscribers? 

If you read my stuff regularly, you already know I'm all about the messages we telegraph to the casual observer.

Well, the only way you get to express an opinion is to cancel a subscription and refuse to patronize their site, much the same way artists are voting with their feet.  Let management know. Publish something on that dreaded platform called social media. Rant on Reddit. Post terrible reviews on Yelp or FaceBook. Do whatever it is you do this week to display your displeasure. If enough people do that, they have to listen. Same thing goes for artists pulling catalogs. Enough of them do, it's a movement. 

For the record, I suspect the real artistic issue with Spotify is neither Joe Rogan's COVID nonsense nor his use of the N*word; it's all about royalties and fair payment/licensing for music. But that's a totally separate issue.

My belief remains firm that unless speech meets the "litmus" test of unprotected speech, he gets to say what he wants. IF, as in the case of the COVID advice, he's promulgating dangerous habits, shut him down. But if he's asking guests on his program to explain their positions and advice, then it stays, preferably with a disclaimer.  As horrid as it is, his use of the N*word might be abhorrent, it remains protected speech. IF he is as contrite as he says, and IF he changes those language patterns, then doesn't he get a chance to redeem himself? I mean, isn't that what the critics want? Admission, repentance, and improved action going forward? IF he screws up again, yank 'em. 

I saw a meme about book banning that really made me stop to think not just about books, but speech and press as well. The last line said something to the effect that people who ban books are never remembered in history as the good guys. 

We know this to be very, very true. 

The Wifely Person's Tip o'the week

If you save the cards your Valentine gives you,

take a moment to read them together. 

I really, really miss that annual activity.