Liddy--fundraising too? what is the difference? palling around with terrorists; etc. two constitutions

[curtism at bellsouth.net]

If being a fund raising host is a crucial factor, that as I understand it that is also present in the Liddy McCain connection.  My understanding is that Liddy held a fundraiser for McCain not years ago but this campaign season. So the only remaining distinction is my assumption that Liddy says he has repented (a statement perhaps somewhat  qualified by reported radio comments on how to shoot AFT agents) and if Ayres has not, he has otherwise behaved as if he did.  At any rate the present tense is as dubious as the plural--there being no indication that Ayres is currently a "terrorist" even if (like Liddy) he once in other circumstances found violence acceptable for political purposes.  So if one resists accepting the claim that McCain pals around with terrorists (plural again) which we should because of  the constitutional concerns expressed before, then it seems to me one should definitely resist defending the statement in the case of Obama. But if on these facts one thinks there is a clear principled difference (rather than one guided by political preference--something that influences us all, all the time) , I would like to know what it is.

Michael Kent Curtis
-------------- Original message from "Volokh, Eugene" <VOLOKH at law.ucla.edu>: -------------- 


    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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