paling around with terrorists; etc. two constitutions

Sun Oct 12 16:54:57 PDT 2008

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

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 10/12/08 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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