paling around with terrorists; etc. two constitutions

Sun Oct 12 15:43:32 PDT 2008

    Odd:  I had thought that it was a liberal commonplace that people
who merely state their views -- even anti-American views, and even
during wartime in a way that helps the enemy) -- are very far removed
from terrorists.  On top of that, while I don't know much about Ifshin,
I take it that he repented considerably with regard to his earlier
conduct (or else why would he like McCain?), which Ayers has not.  And
finally, I had thought that there was a wise and humane social norm that
treats funerals as occasions for focusing on the best about the
deceased, and thus treats them quite different from other kinds of
events and interactions.  So it's very hard for me to see what this
story has to do with the Obama-Ayers political connection.

    Eugene

________________________________

	From: Paul Finkelman [mailto:paul.finkelman at yahoo.com] 
	Sent: Sunday, October 12, 2008 3:31 PM
	To: CONLAWPROF at lists.ucla.edu; Volokh, Eugene
	Subject: RE: paling around with terrorists; etc. two
constitutions

John McCain spoke at the funeral of David Ifshin who went to Hanoi with
Jane Fonda and denounced the US.  Apparently that sort of "terrorist"
was ok because at the end of his life Ifshin liked McCain.  THis is not
about "palling around with terrorists" it is about McCain still fighitng
the Vietnam War, just as he is fighting it in Iraq. 

----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pfink at albanylaw.edu

www.paulfinkelman.com

--- On Sun, 10/12/08, Eugene Volokh <VOLOKH at law.ucla.edu> wrote:

	From: Eugene Volokh <VOLOKH at law.ucla.edu>
	Subject: RE: paling around with terrorists; etc. two
constitutions
	To: CONLAWPROF at lists.ucla.edu, paul.finkelman at yahoo.com
	Date: Sunday, October 12, 2008, 5:49 PM

	    I had thought that the Obama-Ayers connection was not so
tenuous:  Wasn't Ayers one of the early fundraising hosts for Obama, way
back at the start of Obama's political career?  And as to the acts being
long in the past, the problem is that unless I'm mistaken Ayers is
largely unrepentant about them even in recent years.

	    As to the "crowd reactions," I've heard of occasional
catcalls from a couple of people at rallies.  That there are some kooks
or extremists at any rally is pretty much inevitable -- for instance, I
wouldn't assume that the presence of "Bush=Hitler" signs at some
left-wing events represents the view of the whole crowd.  I'm happy to
denounce them, but I'd like to see more evidence before I concluded that
theirs was the view of the crowd, or even any appreciable portion of the
crowd.

	    Finally, as to Liddy, it would be legitimate to say McCain
was palling around with terrorists if Liddy were an unrepentant
terrorist, not a burglar. But unless I'm mistaken he's not.

	    Eugene

	Michael Curtis writes:

		The constitutional issues we consider here are typically
matters for the courts or Congress or the President.

		There are other constitutional considerations that are
not matters for official action.  Still they are essential for healthy
functioning of representative government.  One of these is the very
strong presumption that our political opponents are loyal to the nation,
however awful their judgments about policy may be and however
disasterous the consequences of their plans would be.  In the current
campaign we have seen an insidious attack on this presumption.  "Palling
around with terrorists" and the rest are an example--as are crowd
reactions--kill him, traitor, off with his head, treason, etc. and the
mistreatment of the black tv camera man. These reactions have generally
occurred in rallies with no comment of disapproval from e.g. Gov. Palin
or Sen. McCain, though to his credit and to boos he did say people did
not need to be afraid of Obama--though the ads suggesting otherwise
continue..  The reactions illustrate two things--one is that the palling
around with terrorists comment is understood by people in the crowd as
an assertion that Obama is disloyal; second that it is undermining the
presumption of loyality that is at the heart of a healthy democratic
process.  If one's opponent is really a pal of terrorists, then to
prevent the pal from taking office, exceptional and democratically
unacceptable forms of action begin to seem reasonable--as the comments
from the crowd show.  None of us can know how far the step is from
calling out traitor, kill him, etc. and awful action.  The action called
for is clearly an attack on the democratic process--for when a candidate
is killed, the public is deprived of a choice.

		Because the connection between Obama  and Ayres, not to
mention Ayres's terrorist acts 40 some years ago (when Obama was eight
years old) is so tenuous & Ayres has apparently not been engaged in
terrorism for quite some time (rather school reform with Republicans and
Democrats apparently on his board or supporting the effort), actions by
McCain and Palin to undermine the presumption of loyalty are
particularly disturbing--and in the second sense unconstitutional.  The
only response to this unconstitutional action is to call it out for what
it is.  That is what this post is about.

		Of course, there will be those who insist this is a
perfectly legitimate campaign issue, that the association does show that
Obama is a pal of terrorists, not misleading, etc.  Let them ask
themselves if they would apply the same standards to McCain's
association with Gordon Liddy--a convicted burglar who flirted with
awful "terrorist acts."  Liddy has apparently contributed to McCain and
held a fund raiser for him. McCain during this campaign appeared on
Liddy's radio show and praised Liddy.  Would you see it as legitimate to
say McCain was palling around with terrorists?  Indeed, if the first
charge is to be treated as reasonable would not the second be stronger?

		The palling around with terrorists charge is protected
speech.  But in a deeper sense it is unconstitutional behavior
inconsistent with a healthy democracy.  The only constitutional check is
to point out how subversive it is of democratic government. 

		Michael Kent Curtis    

			-------------- Original message from Robert
Sheridan <rs at robertsheridan.com>: -------------- 

			Part of the concern is this:  In California, for
example, the schools have statutory authority to assert jurisdiction
over the behavior of students from portal-to-portal, that is from home
to school and vice-versa, so that if a student is caught misbehaving en
route either way, he is subject to discipline.  So the idea of the
school as a forum, or limited forum, or having designated forum areas
for expression, such as a Hyde Park-like area set aside for political
speech, is changed by that broad scope of authority. 

			Secondly, the quote showing that Judge Posner
opined that student speech contributes little to the market-place of
ideas stopped me in my tracks.  The freedom is for the individual to
express, not qualified by any duty or limitation that it must somehow
add value to the marketplace, and in whose opinion is that?  Judge
Posner's?  The freedom protects the speaker, not the marketplace, which
can take care of itself.  The value of making a statement is not that
the opinion is reasonable or well-said, but in who says it.  If the
class jerk says something, that's one thing, but if the captain of the
championship athletic team, or head cheerleader, or class president says
something to the same import, that is influential and apt to cause the
audience to consider it more on the merits, or so I suppose.  This is a
very valuable right in the marketplace of student ideas, I believe, even
as against the school authorities' legitimate fear of disruption.  Fear
of disruption is different than actual sign of disruption, I also
respectfully suggest.

			rs
			sfls

			On Sep 25, 2008, at 10:19 AM, Volokh, Eugene
wrote:

				    I sympathize with the desire for
"standards of decorum" in K-12 schools, especially given the vileness of
some of the anti-Bush paraphernalia that I've seen around (though I
should acknowledge that I don't know much of it makes its way to the
high schools).  And Fraser does allow some standards of decorum when it
comes to vulgarity.  But can standards of decorum really be applied in a
sufficiently viewpoint-neutral way when it comes to restrictions on
supposedly "potentially inflammatory" (though by hypothesis not that
disruptive, or else Tinker would cover it) speech?

				    For instance, what Steve sees as a
"patently false accusation" strikes me as an obvious statement of
opinion -- not that Obama subjectively likes terrorists, but in context
that his policies will in fact not be tough enough on terrorists and
will thus help them.  Again, this is the same sort of contextual inquiry
we engage in all the time, for instance with the Bush "International
Terrorist" T-shirt, or the allegations of "blackmail" in Greenbelt, or
in lots of other situations.  But Steve's proposal isn't just aimed at
false statements of fact, but I take it at excessive insults, unfair
characterizations, and other things that violate "standards of decorum."
That strikes me as quite unlikely to be applied fairly.

				    Also, how exactly can one make "pure
dicta" out of the Supreme Court's express statement of the limits of its
holding?  Recall that the relevant passage is this:

				    "Elsewhere in its opinion, the
dissent emphasizes the importance of political speech and the need to
foster "national debate about a serious issue,' as if to suggest that
the banner is political speech. But not even Frederick argues that the
banner conveys any sort of political or religious message. Contrary to
the dissent's suggestion, this is plainly not a case about political
debate over the criminalization of drug use or possession.
				    "[IV]
				    "The question thus becomes whether a
principal may, consistent with the First Amendment, restrict student
speech at a school event, when that speech is reasonably viewed as
promoting illegal drug use. We hold that she may...."

				    Dictum?  Really?

				    Eugene

________________________________

				From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
				Sent: Wednesday, September 24, 2008
10:16 PM
				Cc: CONLAWPROFS professors
				Subject: Re: Morse v. Frederick and
student suspended forwearing "Obama:ATerrorist's BestFriend"T-shirt

				I don't think students are prohibited
from talking about, discussing, advocating, etc., for their candidates
nor to express strong opinions.  I also suspect that students where
shirts with just "McCain" or "Obama" do not have the same kind of
response.  So it is not political expression or speech in toto being
curtailed.  It is a specific means of speech with a potentially
inflammatory message. 

				While we don't want to teach censorship
of a message, I think it not inappropriate for schools to have certain
standards of decorum.  These are not public streets, parks, or the like.
The students don't have a choice as to whether to be there.  Schools
have a purpose beyond recreation and political rallying and teach
lessons other than civics.

				There is a difference between symbolic
black armbands of Tinker and the patently false accusation that a
presidential candidate supports terrorists in the potential for
disruption and inflammation of emotions.  Despite Eugene's and Sandy's
fair reading of Morse, I just don't think this court would restrict
Morse -- rather it would follow the long trend since Tinker of limiting
student speech rights and enhancing administrators' control.  I really
believe the court would uphold the school in this case, and so I hope it
doesn't get taken to court.  I would much rather be able to advocate to
school boards and administrators the narrow reading of Morse than get
yet another narrowing of the speech rights of students.

				If the Court is willing to uphold the
suspension of a student in the Morse case -- on those facts -- that is
to me much more telling than the language of the court which is pure
dicta.  I don't think the decision would have been any different if the
student had put up a sign accusing Bush of being a terrorist or the
principal of being a facist or any number of other signs calculated to
get press coverage.  In this instance, I think it is more than proper to
judge the Court by what it did, at least as much by what it said.

				But when I teach the case in a few
weeks, I will in fact teach it primarily for what the justices say (as I
generally do) and the way they went about deciding, as if they are truly
serious about their words.  But I will also highlight the trend since
Tinker.  I really fear this court would go the way of the existence of
alternative fora and means allows restriction of speech in the broad
discretion of school officials.

				Steve

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