Some Thoughts

Donald Trump Jr has posted some ideas for maintaining/protecting the freedom of speech of us American citizens that his father, former President Donald Trump (R) has for 2024. He’s on the right track….

I have some thoughts on some of them.

Regarding Section 230: Social media—Twitter, Facebook, Alphabet—have made themselves into the public square, and with their collusion with the Federal government to censor speech, they’ve made themselves arms of that same Federal government. That’s two ways, each of which alone is determinative, in which social media have demonstrated their lack of need and forfeited their “right” to protection under Section 230.

Regarding Federal dollars going to academic institutions or programs that don’t live and breathe free speech—especially unpopular speech: Not a single copper penny should be going to those things. If they’re going to censor Americans, they need to do it on their own coin.

Regarding the 7-year cooling off period for intel-related folks: Go broader. Lift the security clearances for all government officials as soon as they leave office, with this exception: the President, Vice President, Cabinet Secretaries, and Agency heads should be allowed to keep their clearances for 90 days, with no possibility of an extension, in order to arrange their library/library-like affairs.

Regarding a Digital Bill of Rights: No. Not at all. Our rights do not come from government; they come from our Creator, as our Declaration of Independence acknowledged and still acknowledges. In addition to that, we already have a Bill of Rights; it’s written into our Constitution. That Bill of Rights also is technology agnostic; digital matters are subsumed into it. Declaring an additional set specifically for digital matters, apart from my just above objection, would only dilute that extant and much more powerful set of Rights.

Government-Tech Censorship?

In his op-ed concerning social media censorship, Philip Hamburger, Columbia Law School Maurice & Hilda Friedman Professor of Law, had this:

Amid growing revelations about government involvement in social-media censorship, it’s no longer enough to talk simply about tech censorship. The problem should be understood as gov-tech censorship.

He’s on the right track, but he doesn’t take it far enough, even as he writes this:

The Biden White House has threatened tech companies and federal agencies have pressed them to censor disfavored opinions and users.

That’s the nub of the matter. It’s not gov-tech censorship; it’s Government-directed tech censorship. Nothing less.

Courts and State-Controlled Federal Elections

In Moore v Harper, the Supreme Court is being called on to decide whether State courts can rearrange State elections laws—in particular, write their own Congressional district maps—as these pertain to how a State runs Federal-level elections.

It shouldn’t even be a question. Our Constitution is quite clear on the matter of who is responsible for setting the rules for Federal elections. Here’s Article I, Section 4:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof….

And only the Federal Congress can adjust those Times, Places and Manner. Not State courts, not even Federal courts.

Our Constitution and every State constitution also is clear on the place and role of the court system in our Federal and State governments. The Judiciary branches are coequal with the Legislature and Executive Branches—neither subordinate nor superior to either. Especially, the Judiciary branches are separate from the other two branches; they are not additional legislative facilities.

State courts, including State Supreme Courts, the facility at proximate case in Moore, have no role in setting or adjusting State Legislature-written Federal-level election rules for their States.

One argument that is being pushed on the Supreme Court for allowing State courts to overrule State Legislatures is “the Founders couldn’t possibly have meant no court oversight of State election laws.” This is obviously inaccurate. In the first place, what the Founders meant in our Constitution is what they actually wrote down and passed out of Convention to submit to the people to ratify.

In the second place, what We the People meant when we ratified that Constitution is that written-down, passed out of Convention, Constitution, with a single modification by us. The Federalist and Anti-Federalist debate, which involved a number of folks in We the People, resulted in a commitment to pass Amendments comprising what came to be called the Bill of Rights—the first 10 Amendments—and We the People ratified those Amendments promptly out of the First Congress. None of those Amendments address in any way how an individual State conducts its Federal-level elections.

No court oversight State election laws is precisely what the Founders intended, and it’s exactly the intention of We the People.

Full stop.

An Excellent Response

Last Monday, the Supreme Court heard oral arguments for 303 Creative LLC v Elenis, a case centered on Web Page designer Lorie Smith and her First Amendment right to not put messages on her designs that conflict with her religious beliefs.

In the course of those arguments, there occurred this exchange (audio is at the first link above) between newly confirmed Justice Ketanji Brown Jackson and Kristen Kellie Waggoner, CEO, President, and General Counsel for Alliance Defending Freedom, which is representing Smith in this case:

[Jackson] asked about a situation where a Christmas photo company was recreating old-time pictures and as a result they only allowed white children to participate because it accurately reflects the time period. As part of the hypothetical, the company served Black people for other types of photos and would refer them to other vendors if they desired. Jackson asked if this would be acceptable under Smith’s logic, because by forcing the photographer to take Black customers it would be changing their vision and forcing them to create something they do not want to create.
“…there are difficult lines to draw and that may be an edge case, but this is not. We have a creative—a creator of speech and a very clear message—”

It’s about time lawyers stopped being afraid to call out activist judges and Justices’ dumbass cynical quibbling over corner cases and kept them focused on the matter actually before them.

Works for Me

Senator Chris Murphy (D, CT) has his gun control panties all knotted up because lots of county sheriffs have said they won’t enforce intrinsically unconstitutional gun control laws.

I think we have to have a conversation about whether we can continue to fund law enforcement in states where they are refusing to implement these gun laws[.]

I’ve addressed whether local and county jurisdictions should accept State funding for this or that purpose or whether they, instead, should decline the funds and free themselves from higher government’s controlling strings.

At the national level, Murphy’s terms are acceptable.