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John Leo on Free Speech and Restrictions on Anti-Gay Speech, Pro-Drug Speech, and More,

in the City Journal.

Nathan_M (mail):
Assuming the facts are portrayed fairly in the article, this is another example of how laws against breaching the peace are misused to punish unpopular or marginalized people, or people who question the police. There seems to be a disturbing number of incidents, like this one, where the police don't approve of what someone is doing, so they charge her with breaching the peace.

This doesn't even have to be a crime. Canada, where I live, doesn't have an equivalent criminal offence (unless Her Majesty is present, naturally), and our streets seem peaceful enough. We get by by giving police the power to arrest someone who is breaching the peace, but the person must then be released without other consequences so there is much less room for abuse.
6.4.2007 7:51pm
Esquire:
Well I don't believe Canada has an absolutist approach to free speech akin to our 1st amendment, so perhaps it's even more of a danger there in the long-term?

I notice that it cites a previous entry by Prof. Volokh, which I recall but don't remember the date...

"Sorry. Your viewpoint is excluded from First Amendment protection," read the first line of a blog commentary by UCLA law professor Eugene Volokh about the Ninth Circuit decision.
6.4.2007 7:55pm
Nathan_M (mail):
Esquire, yeah, our Charter rights are subject to exceptions prescribed by law which are demonstrably justified in a free and democratic society.

We've got a similar, albeit narrower, law to the one it sounds like this woman was charged under, too. (Ours bans "communicating statements in any public place, [which] incite[] hatred against any identifiable group where such incitement is likely to lead to a breach of the peace".) But I'd argue this law is unnecessary, too, and at least it covers far fewer circumstances than the general breach of the peace laws in the US do.
6.4.2007 8:18pm
gvibes (mail):
Esquire

http://volokh.com/posts/1145577196.shtml
6.4.2007 9:02pm
logicnazi (mail) (www):
Well felony hate crime here seems obviously inappropriate but what about some sort of harassment charge? Or some kind of privacy/publicity tort? Remember this wasn't actually an anti-gay protest but a targeted attempt to harass a specific individual she was angry at for other reasons.

Now I tend to be a free speech absolutist and would prefer a society that dealt even with specific targeted harassment via counter-speech or private action (say private businesses refusing to sell to the offender) but apparently our society isn't prepared to go that way. I mean consider the discussion that occurred on this blog a few months ago about public nudity laws. Or even more extremely what about taking a picture of someone else's child in a public place and then passing out a flier with their picture advocating the law be changed so you can rape that child. Even supposing that it was eminently clear that there was no threat but merely an attempt to get even with the parent I very much doubt you wouldn't find yourself arrested.

Now given that the target of this speech was likely underage and the motivation was similarly personal revenge not a real policy comment our response to these two situations should go together. I'm happy to bite the bullet and say free speech in both cases but is anyone else?

In other words our determination of whether something is free speech should not turn on our attitude toward the content. My intuition is that all that differentiates this sort of case from one that no one here would defend is that most of you don't view using someone's sexuality to attack them as totally beyond the pale while you do view advocating the law be changed so you can rape their child to be beyond the pale. Yet if this is the case isn't this just simply a disagreement about what content is acceptable not a free speech issue?

I'd like to believe there is a way to distinguish cruel motivated attacks, both like this and the extreme hypothetical I sketched, from free speech in general but I just don't see it.
6.4.2007 9:05pm
Vinnie (mail):
http://volokh.com/posts/1145577196.shtml

try here.
6.4.2007 9:07pm
logicnazi (mail) (www):
Ohh in case it wasn't clear I was talking specifically about the case of the girl passing out the fliers with her former friend's face on it saying, "god hates fags." While the info in the article was brief I'm assuming it's suggestion that this was motivated merely by a desire to harass the former friend is correct. Also I'm assuming that they were in fact gay so that libel laws and pursuant injunctions wouldn't be a useful way to stop such behavior.
6.4.2007 9:09pm
Henri LeCompte (mail):
Hmmm, I didn't know there was such a thing as a "pure" hate crime! I always thought that the "hate crime" label was appended as a kind of intensifier on another crime, like assault, murder, robbery, etc. In this case, however, there is no underlying crime-- handing out pamphlets is not a crime.

Most defenders of hate crime legislation do so by saying "the hate crimes part just goes to the question of motivation, or premeditation." In that context, the "hate crime" is just a component of another crime. This case is much more like penalizing a thought, or speech. Apparently, in Illinois you can get arrested for saying "god hates fags," and that is a scary development.
6.4.2007 9:16pm
Waldo (mail):
logicnazi:

most of you don't view using someone's sexuality to attack them as totally beyond the pale while you do view advocating the law be changed so you can rape their child to be beyond the pale.

Yes, I don't. In the first case, you're criticizing behavior, well withing the First Amendment. In the second, you're advocating that the law cease to provide basic protections.

Consider this analogy: Advocating the law be changed so you can rape their child is beyond the pale in the same way that advocating the law be changed to make the murder of Matthew Shepard acceptable is beyond the pale.
6.4.2007 9:21pm
Nathan_M (mail):
Henri, I think you have to distinguish between hate crime laws and hate speech laws, which the article doesn't seem to. Despite the author's characterization of it as a hate crime law, this law appears to be closer to a hate speech law.

No doubt there is some overlap between supporters of the two types, but I think in general people supporting hate crime laws are talking about where hate is a motive causing an independent crime. That is certainly the case in the recent debate about whether homosexuality should be added to the categories protected by federal hate crime law.
6.4.2007 9:51pm
whackjobbbb:
Oh for the love of GOD... let's just enact Sharia and be done with it... so we can have some REAL speech restrictions... with TEETH. No questions... no problems... that girl won't even be IN a school... she'll be home... all covered up... and no problem at all to us good folk who understand the true words and only those true words.

This is the slippery slope... when you start deciding which types of speech are acceptable. Can we just please give UP on all this "hate speech" and "hate crime" nonsense?
6.4.2007 10:14pm
Malvolio:
Apparently, in Illinois you can get arrested for saying "god hates fags," and that is a scary development.
Okay, say you are watching a horror movie and the guy in front of you says, "I saw this last week: the killer is behind the refrigerator." When the killer did in fact jump out from behind the refrigerator, that would not be "scary". You already knew it was going to happen, and for a bad thing to be scary, it has to be to some degree unknown or unexpected.

This particular development -- hate crime laws being used to criminalize unpopular speech -- was inevitable, and you were warned about it.

Sorry to ruin the ending.
6.4.2007 10:23pm
Richard Aubrey (mail):
Malvolio.

The viewing-with-alarm is kind of precious, don't you think?

As I have said before, the sequence is, "That's ridiculous. Not the intent. Never happen." Then, "Too late now, chump. Nothing you can do about it, either."
It's about time we started hearing the second part when the usual suspects are giving us the first part. Saves time.
6.4.2007 11:37pm
LTEC (mail) (www):
Nathan M --

Canada has extensive hate speech legislation, usually administered by extra-judicial Human Rights Tribunals.

Here is an example; it is even about homosexuality. Canada has jailed people for writing articles against homosexuality, and for holocaust denial, and they have also shut down related web sites. There is very little freedom of speech compared to the United States. And the silencing of speech is always from the left. (Left-wing -- i.e. Islamist -- anti-homosexuality and holocaust denial is okay.)
6.4.2007 11:53pm
whit:
LTEC absolutely true. few things are more hypocritical than canadians lecturing us about free speech - since they have SIGNIFICANTLY less

the CCLA (Canadian Civil Liberties Association) has a lot of stuff on this very topic.

I took a "train the trainer" class in regards to hate crimes investigations along with a bunch of mounties (royal canadian mounted police). they were amazed at the extent to which american citizens could say things that would result in arrest and prosecution in canada.
6.5.2007 12:23am
Henri LeCompte (mail):
Malvolio:
Yeah, I suppose I saw this coming-- in a kind of worst case scenario way-- but I assumed that everyone, on all sides of the political spectrum, would instinctively pull back from this last step. I mean, how could anyone fail to see how prone to abuse this "new-found" power of the State would be?

I mean, how long before those dreaded Dems/Reps (take your pick) got into power, and started using it against the "good" speech??
6.5.2007 12:23am
Nathan_M (mail):
LTEC, I don't want to defend Canada's hate speech laws, because I don't support them, but you should be aware provincial Human Rights Tribunals can't send people to jail (at least so far as I am aware) or enforce criminal laws (provinces don't have jurisdiction over criminal law), and the police don't enforce human rights laws.

I'm not saying Canada is better on free speech than the US. In some respects it is, in (probably more) ways it isn't. In most cases the countries are identical.

But there are other freedoms that are important too, and I think not facing criminal charges brought rather arbitrarily by the police and based on an inherently unclear law is an important one.

The point of my posts isn't to say Canada is better (or worse) than the US, but to criticize a particular aspect of US law and offer an alternative.
6.5.2007 12:48am
Eugene Volokh (www):
logicnazi: Of course "advocating the law be changed so you can rape their child" is constitutionally protected speech. It's morally atrocious, but it's constitutionally protected. (Plus it's useful to know who's interested in having the law be changed that way.)
6.5.2007 12:55am
Richard Aubrey (mail):
Now, suppose somebody complained publically about the hate-speech laws. Would that be actionable as hate speech?
Yet?
6.5.2007 1:13am
LTEC (mail) (www):
Nathan_M --

So Canada has hate speech laws but no one enforces them?
I recall reading on a number of occasions about people fined by Human Rights Tribunals, and about them also going to jail as a result of these tribunals; I don't know or care about which body ultimately did the sending to jail. Here are some more links that I found quickly on the internet.
6.5.2007 2:45am
Public_Defender (mail):
It looks like it was just a personal attack and the kind of personal harassment that misdemeanor laws routinely enforce. Most places have broad laws against intentionally harassing or annoying someone.

What if the defendant were a man with a history of domestic violence who put out a flyer with his girlfriend's picture saying, "God hates dykes"? Or even, "God Hates Jane"?

But this is a mild case. There's no allegation of actual violence anyplace. Charging it at all is suspect. Charging it as a felony is beyond the pale.
6.5.2007 6:51am
Richard Aubrey (mail):
RICO was a good idea, fundamentally, and nobody was going to misuse it, either.
6.5.2007 8:33am
whit:
"I'm not saying Canada is better on free speech than the US. In some respects it is, in (probably more) ways it isn't. In most cases the countries are identical."

get real. you aren't saying it's better, because it is in fact FAR worse.

that's a matter of law.

in MOST CASES,they ARE identical. as long as the speech doesn't offend people or is politically incorrect.

but in cases of offensive speech, which the speech most in need of protection, canada differs markedly. they ban hate speech. it's that simple.

setting aside the ludicrousness of govt. being the arbiter of what speech is and isn't hateful, the fact is that canada criminalizes the kind of speech that the US does not.

"the police don't enforce human rights laws."

in canada, the mounties (a federal police which has no analogy in the US) investigates hate speech violation. so, your sentence above is nonsensical.

like i said, not only could i give cites of canadian police investigating hate speech laws, i have taken hate crimes investigation with mounties who have personally done so. and are/were amazed at how much more freedom of speech US citizens have.

"Tomasz Winnicki [Oct. 6, 2005] For the first time in Canadian history, a federal court ruled that a white supremacist may not post hateful messages on the Internet, reported The London Free Press. The Federal Court of Canada said that Tomasz Winnicki, a resident of London, Ontario, may not post his anti-black, anti-Indian and anti-Jewish messages on the Internet. The injunction prohibits Winnicki from posting his messages even before they have been found illegal by a human rights commission. The Federal Court of Canada did not release reasons for its ruling"

"Hugh Owens [Sept. 16, 2005] In Regina, the Saskatchewan Court of Appeal reserved judgment in the dispute between Hugh Owens and the Saskatchewan Human Rights Commission. In 1997, Owens, an Evangelical Christian, published an ad in Saskatoon's StarPhoenix. The ad quoted four anti-homosexual verses in the Bible and displayed two stick men holding hands within a circular "banned" symbol.2 Three men filed complaints with the commission, saying the ad violated the province's human rights code. In 2001, a one-woman tribunal ruled that Owens's ad exposed homosexuals to hatred and ridicule. Owens was ordered to pay $1,500 to each complainant, and the StarPhoenix was ordered to pay $1,500 to each complainant. In 2003, Saskatchewan's Court of Queen's Bench rejected Owens's claim that he was exercising his right of free speech and upheld the tribunal's decision.3"
6.5.2007 11:53am
Allen Asch (mail) (www):
I noticed John Leo's article contains this sentence:

Religious and conservative groups have joined the ACLU and Feminists for Free Expression in defending the Juneau student.

It would be more accurate to say SOME religious and conservative groups have joined the ACLU and Feminists for Free Expression in defending the Juneau student. After all, conservative darling Ken Starr is arguing AGAINST free speech in this case. For more info, see my YouTube video at:

Supreme Court Takes Bong Hits for Jesus
6.5.2007 12:43pm
Nathan_M (mail):
I hate to turn this into a debate on Canadian hate speech law, since it's not at all relevant, but I'll correct some misapprehensions.

There are different types of hate speech laws in Canada. The criminal law (ss. 318-319 of the Criminal Code) and human rights legislation. A human rights tribunal isn't a court, and can't sentence someone to jail, although a court could jail someone for contempt of an order of a human rights tribunal. In the Winnicki case LTEC linked to, he was jailed for violating a court injunction, not because of a ruling from the federal Human Rights Tribunal.


"the police don't enforce human rights laws."

in canada, the mounties (a federal police which has no analogy in the US) investigates hate speech violation. so, your sentence above is nonsensical.

The RCMP would investigate criminal law violations in parts of the country (they're not entirely national, for example Ontario and Quebec have provincial police forces, and some of the larger cities have municipal forces). They would investigate hate speech prohibited by the criminal code, not human rights laws. So the police would not have investigated Winnicki and Owens. (Unless they were suspected of criminal violations, even though the Crown ultimately decided not to bring charges.)

The federal court has released reasons for granting the injunction against Winnicki, they're available here.
6.5.2007 12:58pm
Richard Aubrey (mail):
I bet somebody could find without undue search a lengthy list of assertions that civil forfeiture would not be used the way it's being used.

Heard the end of a report from, naturally, California where an employer ruled that the n-word is okay but that "family" and "marriage" are hate speech. Anybody know anything further and if it's true, is anybody surprised?
6.5.2007 3:08pm
Colin (mail):
if it's true, is anybody surprised?

I'm not surprised that you're making the unsourced allegation, or that you don't have any evidence, if that's what you mean.
6.5.2007 3:38pm
Richard Aubrey (mail):
I know, Colin. You tried that once before, remember?
The usual crap. Dig up the cites to all the stuff you've read and seen over the years or you're a liar. I decided not to bother, but somebody else did.
At which point you switched from "it's not happening" to "it's not important".

Forgot so soon?
6.5.2007 4:03pm
Colin (mail):
Yes, we have been over this before. You make a hysterical statement, which might or might not be true, and wait for someone else to support it. In one instance, someone did, and you seem to think that my admission of error is something that should embarrass me. I'm not embarrassed; intellectual honesty is what keeps me from making hysterical statements that might or might not be true, and waiting for someone else to support them. This variation of the tactic -- "I heard this. I can't say if it's true. If it is, it would be typical." -- is nothing new. You don't know if it's true, and you don't seem to care; you just want to put on your war paint and throw partisan bombs. I'll say the same thing I've said each time before: prove it.

And, just as you suggest, what "an employer" does isn't necessarily important, even if it is true. But we still haven't gotten over that "truth" bar. One step at a time, please.

The case you're referring to is probably Good News Employee Ass'n v. Hicks. It got lots of inflammatory and inaccurate press, but the actual decision (2007 WL 651452) doesn't mention "the n-word," "family," or "marriage."

"Public employers are permitted to curtail employee speech as long as their " 'legitimate administrative interests' outweigh the employee's interest in freedom of speech." Pool, 297 F.3d at 906 (quoting Bauer v. Sampson, 261 F.3d 775, 784 (9th Cir.2001)). In this case, the only limit placed on appellants' speech was the removal of a single flyer from the wall. Although appellants did receive an oral warning for posting the flyer, no adverse employment action was taken, and the warning alone is insufficient to tip the Pickering balance in appellants' favor. Appellants were also allowed to submit a new flyer, subject to certain editorial constraints. In light of the minimal interference with appellants' free speech rights, the district court appropriately described their speech interest as "vanishingly small." Good News Employee Ass'n v. Hicks, No. C-03-3542 VRW, 2005 WL 351743, at *9 (N.D.Cal. Feb.14, 2005). Because the district court correctly held that appellees had a more substantial interest in maintaining the efficient operation of their office than appellants had in their speech, appellants cannot establish a viable free speech claim."

Where is the ruling, either by the employer or a court, that the use of the words "family" or "marriage" are "hate speech?" I only see a determination that their use in a specific context was disruptive to the business's operations. It seems unobjectionable to me that, in deciding whether specific speech is disruptive to a place of business, what matters is the fact-specific context of the speech, rather than a per se rule on particular words.

From what I can see, having actually read some the materials in question, the answer here is that your unsourced allegation is both "not happening" and "not important."
6.5.2007 4:33pm
Richard Aubrey (mail):
Actually, Colin, that isn't the case. I caught the end of the report this afternoon and have seen nothing since.

And the "hook" for the report was that the words in question were "family" and "marriage", quite a surprise--not--because, said one of the reporters, the words were presumed to be homophobic.

I'm sure it will surface in a day or so.

Then what?
6.5.2007 5:28pm
Richard Aubrey (mail):
Crap. Split again.

The cases I found when I googled were of e-mails and referred to dueling organizing on employer's internal comm system. Some organizing was more equal than others--no points for guessing which--but they don't seem to resemble the case I heard discussed this afternoon.
There was a reference to "natural family", but not "family".
It was, also, the Ninth Circuit.

And, of course, it's not important. It's going your way but the rest of us might object. So, once it's out, it has to be unimportant. For now.

I'll keep looking.

BTW, your other flop was not a matter of ignorance. You are too well-informed. You merely hoped to confuse the issue, knowing better yourself.
6.5.2007 5:35pm
Colin (mail):
Actually, Colin, that isn't the case.

Are you sure? Good News Ass'n is a very recent Ninth Circuit case that deals with the use of the exact terms you're discussing - "natural family," "marriage," and (according to the WorldNet Daily article, which admittedly is wholly untrustworthy) the n-word.

And the "hook" for the report was that the words in question were "family" and "marriage", quite a surprise--not--because, said one of the reporters, the words were presumed to be homophobic.

Once again, please prove your assertion that a business presumes the words "marriage" or "family" to be homophobic. That's a wild statement, and I frankly don't take your word for it. These discussions are fact-intensive, and empty, anecdotal assertions don't add actual facts to the mix. If there is such a case, it's likely to be similar to Good News, in that the actual issue is dependent on the context and the facts of the case. You're asserting that these words are per se "hate speech" to at least one organization, which is not a credible claim. If there is such an organization, it's hard to see why their view would be at all relevant to the discussion, as no court would give legal force to a rule that "family" and "marriage" are per se offensive terms that would support some adverse employment action.

BTW, your other flop was not a matter of ignorance. You are too well-informed. You merely hoped to confuse the issue, knowing better yourself.

Please don't accuse me of dishonesty without good cause. My motive remains the same as it has always been - it irritates me to see partisans making wild, ranting claims without offering any factual support (or even knowing beforehand whether there is such support). I'm extremely skeptical of the truth of your claims, and the significance of the claims if they are true. You haven't offered anything on either point; we don't know whether your claims are true, if they are true, what the details are, or for any given set of details, why you think they're germane.

But by all means, keep looking. Perhaps next time, you'll even look before you post.
6.5.2007 6:52pm
Richard Aubrey (mail):
Colin, as I said, when asking if anybody had seen the report, the news folks did say the words were considered homophobic.

Why would a court scruple to give legal force to such a claim. One sexual harassment claim consisted of a picture of a man's wife on his desk, wearing a bikini. I believe the court bought that claim.

This is no sillier, and the complainaints are designated victims' groups. See the UNLV case, if you want to see how silly things can be.
6.5.2007 7:48pm
Colin (mail):
One sexual harassment claim consisted of a picture of a man's wife on his desk, wearing a bikini. I believe the court bought that claim.

Any citation, or proof? I'm not sure that I even doubt this one, but come on - my point all along has been that you throw out random anecdotes that you can't support, because you care more about scoring partisan points than the facts or the details. Your response is, "Well, of course my first example was realistic and serious, because of this other wacky example I pulled off the top of my head."

I'm not persuaded that extreme outliers are significant, or that your examples are actual, factual cases in which courts reached the results you claim.
6.5.2007 11:53pm
Richard Aubrey (mail):
Extreme outliers are important to the people to whom they apply. The prof at UNLV who had a year of hassle found the system "worked", which is to say the university spent almost zero of its resources giving him a hell of a time. He "won", but the message is clear. Want a year of hell? Just try something that offends one of the designated victims' groups. We can do this all day and never break a sweat.

You know more than you claim to be convinced about.

BTW. Same case. I read the appeal court's decision. No mention, as you pointed out, of the "hate speech" or "family" or any of the other supposed problems.
That's clever. But not that clever. The appeal was not based on the content of the memo directly. So to find that the content of the memo was not directly referenced in the appeal is normal.

What is lacking in your response, or the appeal, is any reference to what the employer found objectionable in the memo in the first place. And that is the point at issue.
As you know. Try again.

So we've gone from it-didn't-happen to extreme-outliers-don't-count.
That's progress.

After we have half a dozen extreme outliers, they begin to define the boundary. That, of course, is the point, and in the meantime, dismissing them as unimportant is part of the schtick.
6.6.2007 11:32am
Colin (mail):
Extreme outliers are important to the people to whom they apply.

Which means that they're not very important to the rest of us, and are generally no help at all in discerning or crafting general rules. Which is why, although it's fun to rant about those outliers, it's also not very productive. That's assuming, of course, that the outliers are actual facts, and not creative make-em-ups tossed out by partisans who care more about their rhetoric than what actually happened.

The prof at UNLV who had a year of hassle found the system "worked", which is to say the university spent almost zero of its resources giving him a hell of a time. He "won", but the message is clear. Want a year of hell? Just try something that offends one of the designated victims' groups. We can do this all day and never break a sweat.

Oh yeah? Well, what about that time that guy, he was like a friend of my cousin's, found out that the system really worked? That is to say, he had a beef, and he took an administrative appeal, and the system, like, totally worked.

This is the third unsourced, rambling allegation you've made in response to my original point, which was that you make unsourced, rambling allegations without offering facts. That's impressive. I'll admit this much: you certainly can do this all day without breaking a sweat. You seem to do it all day, every day, without cracking a book or a news report.

BTW. Same case.

Yeah. I know. It was pretty obvious from the beginning; although it was also obvious that you didn't know anything about the actual facts you claimed to be so outraged by.

That's clever. But not that clever. The appeal was not based on the content of the memo directly. So to find that the content of the memo was not directly referenced in the appeal is normal.

That's because the legal issue isn't based on "the content of the memo directly." It's based on an employer's freedom to regulate speech in the workplace. So remind me why you're so upset by this case? Is that you don't think employers should have that freedom, or that you don't like the employer's decision in this case? I'm guessing the latter; I'm also guessing that you know very little, if anything, about what actually happened, or why the employer made their decision.

You can read about the contents of the flier in the district court case, which is cited in the appellate case. Please, don't feel any obligation to read that before posting. It would destroy my faith in your willingness to rant without reading.


So we've gone from it-didn't-happen to extreme-outliers-don't-count.
That's progress.


No, we're still where we always were. It didn't happen as you allege - there's no indication that "an employer ruled that the n-word is okay but that "family" and "marriage" are hate speech." An employer ruled that an extremist pamphlet that included those words as part of an admittedly anti-gay message was disruptive and harassment of gay employees. Not "hate speech." And the employer was within their rights to regulate disruptive speech in the workplace.

So, it didn't happen, and what did happen is not significant. That's not progress; we're still dealing with your baseless allegations and off-the-cuff citations to cases you kinda sorta remember and are totally sure are like really bad for liberals.

That, of course, is the point, and in the meantime, dismissing them as unimportant is part of the schtick.

You still haven't explained why you think this case is important. What exactly about it was wrong? Was the employer wrong to regulate speech in the workplace?
6.6.2007 1:00pm
Richard Aubrey (mail):
The employer has the right to regulate speech. That wasn't my question and your effort to twist the question is baldly, transparently, obvious.
The question is what words annoyed the employer.
The UNLV prof is the guy who spent a year duking it out wiht the U because a gay activist objected to the prof's point that gays, lacking families, tend to shorter time horizons. You know all about this. Again, pretending it didn't happen doesn't convince anybody.
However, I began this by asking if anybody knew the case, since I had only heard the end of the report. Thanks for getting me the cite. No thanks for pretending the issue is other than my question, which is what was the speech in question.

Extreme outliers may tend to become the boundaries. They're only extreme until they have company and the problem is how to insure they remain extreme outliers which have no company.
6.6.2007 1:17pm
Richard Aubrey (mail):
Colin. The rambling, unsourced allegation about UNLV refers to Hans Herman Hoppe. So now it's even more difficult to pretend it didn't happen.
I don't get it. You knew what I'm talking about. You knew I could cite it if pressed. You knew that people generally don't cite generally known information.
What was your point in this?
6.6.2007 1:26pm
Richard Aubrey (mail):
Colin.

"Good News Employee Associations is a forum for people of Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family values.

If you would like to be a part of preserving integrity in the Workplace call Regina Rederford @xxx-xxxx or Robin Christy"

Not seeing anything out of line here.

Far as I can tell, this is the contested memo.

The reference to the n-word is that the employer allowed it when used by other individuals. The point is the contrast between the treatment of one viewpoint and another viewpoint.
6.6.2007 1:33pm
Richard Aubrey (mail):
From Salon:

"The facts are not in material dispute. GNEA's stated purposes are "[t]o celebrate our Faith and Liberties by preserving the integrity of the Natural Family, Marriage and Family values"; "[t]o provide a forum for people of faith to express their views on contemporary issues of the day"; and "[t]o oppose all views that seek to redefine the Natural Family and Marriage." In its "Statement of Faith," GNEA explains that "we believe the Natural Family is defined as a man and a women their children by birth or adoption, or the surviving remnant thereof (including single parents)"; that "[w]e believe Marriage is defined by a union between a man and a woman according to California state law"; and that "[w]e believe in Family Values that promote abstinence, marriage, fidelity in marriage and devotion to our children." Plaintiffs' deposition testimony confirms the anti-homosexual import of their definitions of "natural family," "marriage" and the meaning of the flyer's exhortation to "preserve our workplace with integrity."

The flyer came to the attention of Judith Jennings ("Jennings"), a lesbian employee in CEDA who used the copy machine near which the flyer was posted. Jennings felt "targeted" and "excluded." Shortly after seeing the flyer, Jennings spoke with Rederford... This conversation left Jennings "feeling anxious about working in the same office as [plaintiffs]" and she "could not believe that [she] worked with someone who condemned homosexuals like [her] so much." Jennings and Rederford worked near one another and spoke with some frequency. After the conversation, Jennings was "scared," did not talk to Rederford any more and their "relationship really changed." Jennings decided to complain to the city attorney's office. She complained not only about the flyer, but also about earlier episodes of distribution of anti-homosexual materials, at least one of which involved plaintiffs."

What crap.
This was a positive statement about marriage and other arrangements. Jennings found the same kind of room for feigning offense as the clowns who harassed Prof. Hoppe.
But my original question is whether the news was correct in reporting that worse stuff was posted from other viewpoints without contest by the supposedly offended. I don't see any reference there.

I guess the folks at Good News Employee Ass'n could start complaining of being "scared" when they see something that is legal, inoffensive to people with a brain, and with which they disagree. If you like using that tactic, you'll like it until the other side starts using it.
6.6.2007 1:40pm
Colin (mail):
The question is what words annoyed the employer.

Then you're still not reading the cases. There's no indication that any words "annoyed the employer." An employee felt harassed by the pamphlets, and complained. The employer felt that the dispute was disruptive, and regulated speech in the workplace. There are things to complain about in that fact pattern, but you keep changing your mind about what upsets you. This is what you were complaining about earlier:

And the "hook" for the report was that the words in question were "family" and "marriage", quite a surprise--not--because, said one of the reporters, the words were presumed to be homophobic.

It's worth pointing out (again) that almost no part of that factual assertion is true (except that possibly a reporter said that, although I doubt it). The words "family" and "marriage" were not "presumed to be homophobic." There is no per se rule, either in law or with this employer, making those (or any other) words "homophobic."

The UNLV prof is the guy who spent a year duking it out wiht the U because a gay activist objected to the prof's point that gays, lacking families, tend to shorter time horizons. You know all about this. Again, pretending it didn't happen doesn't convince anybody.

I don't know anything about it. I've never heard of the guy or the case before this. Nor, though, have I ever asserted that it "didn't happen;" please read more carefully, and all the way to the end of the sentence - you're missing a lot. What I said was, and please read carefully and twice, "This is the third unsourced, rambling allegation you've made in response to my original point, which was that you make unsourced, rambling allegations without offering facts." I did not say or imply that there was no such guy or no such case. I said that you made a rambling, unsourced allegation. I appear to have been 100% correct in every respect.

Thanks for getting me the cite.

You're welcome. Please read it again, and tell us what the BFD is.

I don't get it. You knew what I'm talking about. You knew I could cite it if pressed. You knew that people generally don't cite generally known information.
What was your point in this?


To get you to break from your MO and cite some facts, instead of dribbling out rambling complaints about cases you think you heard about once that upset you for no apparent reason. Who is the wrongdoer here? The plaintiff set out a pamphlet that upset another employee. I don't see any factual basis for your claim that she was "feigning offense;" you have about one sentence from the flier, and you've already made up your mind about the facts. Another employee complained, both about the flier and prior events where she had apparently been confronted with similar materials, and the employer resolved the disruption by taking the flier down.

All I can figure is that you think that the employee shouldn't have complained, but you don't know what she was complaining about, because you don't have much in the way of facts. As I've been saying all along, though, you've never let your ignorance of the facts get in the way of an angry conclusion.

Once again: what happened here, why was it wrong, and why does it matter?
6.6.2007 3:09pm
Richard Aubrey (mail):
Colin.
Never heard of Hoppe. Riiiight. However, now that you have, or now that you can't claim not to have any longer, it's not an unsourced allegation. What it was was a shorthand reference to a situation which was widely known.
So we go from it didn't happen to it's an extreme outlier to it's not important. Because it's all by itself, of course. Except for all the others.

As for the Good News case, the employer has the right to regulate speech. Which means, I'm absolutely certain--not--that if Jennings or her friends have ever used terms like "breeder" or "bible thumper" or any one of a dozen or so other insults, and the plaintiffs here claim to be "scared", the employer will jump right on it.

One of my questions is what sort of language the employer allowed. This was not, as far as I can see, one of the issues in the case, but it was on the report I saw. For the employer to be clean on this and not be practicing viewpoint discrimination, the other employees would have to be absolutely clean. The report is, as I say, that they were not. Now, of course, the plaintiffs, being reasonable people, might have never thought of feigning offense in order to shut up people they don't like. But now the example's been made. I fully expect the employer to avoid further trouble by making sure the gay organizing and other communications are about as offensive as the alphabet.
6.6.2007 4:28pm
Colin (mail):
Never heard of Hoppe. Riiiight.

No. I never heard of it. Why should I care about it? What happened?

So we go from it didn't happen to it's an extreme outlier to it's not important.

"We" haven't gone anywhere. I never claimed that it didn't happen, I never claimed that it was an extreme outlier (although I'd bet that it is), and I never claimed that it's not important. I said that you threw out an unsourced, rambling reference. You still haven't given a source, although I can Google that for myself. You're definitely still rambling.

Which means, I'm absolutely certain--not--that if Jennings or her friends have ever used terms like "breeder" or "bible thumper" or any one of a dozen or so other insults, and the plaintiffs here claim to be "scared", the employer will jump right on it.

Clever sarcasm is one thing. "Not" jokes are clumsy writing, and you aren't clear enough to have a margin to spend on trying to be clever. So you're upset because you predict that the employer wouldn't take down a flier using words like "breeder" or "bible thumper?" I'd take that bet. I bet the employer cares more about getting the job done than ideology, and would take down disruptive material. All we can do is guess, though, as there is no basis for anything more.

For the employer to be clean on this and not be practicing viewpoint discrimination, the other employees would have to be absolutely clean.

No. That is nonsense. Other employees would have had to have complained and had their complaints rejected for discriminatory reasons. We don't know if anyone was offended by the n-word, or if they asked the employer to take action, or if (assuming the employer was asked) the employer refused to do so. When there is only one request to implement a nondiscriminatory policy, then acting on that request is not viewpoint discrimination. And there is no indication that the policy here - take down material that disrupts the workplace - was discriminatory.

Now, of course, the plaintiffs, being reasonable people, might have never thought of feigning offense in order to shut up people they don't like. But now the example's been made.

What example? The complaining employees appear to have acted reasonably, to me. They felt harassed by the pamphlet, in conjunction with prior instances in which the offending employee had confronted them with similar literature. The complainant didn't file suit or ask that the offender be terminated - she asked that the harassment be stopped. The employer took de minimis steps to make that happen. If the employer rejected similarly reasonable complaints, then there's a potential problem - as a civil libertarian, I'm always willing to cast an evil eye on speech suppression, even when it turns out to be reasonable. But we have no basis for suspecting viewpoint discrimination in this case.
6.6.2007 5:31pm
Richard Aubrey (mail):
The complaining employees felt harassed. Well, I feel harassed any time I feel like it. It's a non-empirical issue.
I claim it. It's true.
Suppose the plaintiffs decided that some of the phrasing the other groups used made them feel harassed.
The example is that by claiming to feel harassed, the employer is required to take care of you.
Why should that only be a tactic used by the gays in the office?
The material disrupts the workplace only to the extent that somebody decides it does. This is known as the heckler's veto, or to put it more accurately, the pretend-wimp's veto.
So it's clear that anybody can fake it, including the plaintiffs, if they were that slimy. I guess they're not. But somebody might decide to.
Hell, I damn near had my AOL privileges revoked years ago for recalling I'd been called a "niggerlover". That was enough to annoy somebody, or at least give them an excuse to try to shut up somebody they couldn't otherwise answer. The chinpullers of AOL decided, after a stern warning, that I was on probation.
So, if I see "breeder", and I remember what happened to me earlier, why shouldn't I get all over shaky and lipquivering and claim I feel harassed and afraid?
The answer is that I have too much pride. But somebody may decide it's worth it.
Then we'll see what what kind of standards we have, double or triple.

BTW. If you haven't heard of Hoppe,or something else, fine. But don't expect that means it doesn't exist.
I got an extremely modest GPA on the way to a generic BA at Enormous State University. Then I was a grunt. Since then, I've been a pedlar.
If I know this stuff, what about all the smart people? Which is basically everybody else.
6.6.2007 9:40pm
Colin (mail):
The example is that by claiming to feel harassed, the employer is required to take care of you.

No. Once again, you are inventing facts to support your preconceived outrage. No one required the employer to do anything. The employee complained to the employer, who (in possession of more facts than we have) chose to resolve the conflict by taking down fliers that had been posted around the workplace. He could have chosen not to accomodate the complainant, and he could have chosen more serious remedies than the extremely minimal action he did take. The plaintiffs were allowed to announce their group over office email, and had other outlets for expressing their opinions during working hours. The sole accomodation was taking down offensive literature that had been posted in a place of (public) business and was causing a disruption. You appear to be grasping desperately for some reason to be upset about this case. The tighter you squeeze, the more facts slip through your fingers.

The material disrupts the workplace only to the extent that somebody decides it does. This is known as the heckler's veto, or to put it more accurately, the pretend-wimp's veto.

A potential problem, in theory. In this case, you have no basis for asserting that the complaining employee didn't actually feel upset. What basis do you have for connecting this case to that problem? All you're complaining about is the possibility that the complaining employee is a malingerer, which is a possibility in any case in which an employee asserts that he or she has suffered some subjective harm and requests an accomodation.

It appears that, having consistently made mistakes about the facts of the case, you're reaching further and further afield for a reason to be upset about it. What in the facts is so problematic for you?

So, if I see "breeder", and I remember what happened to me earlier, why shouldn't I get all over shaky and lipquivering and claim I feel harassed and afraid?

You appear to be all shaky and lipquivering now, merely because an employer took action in favor of a homosexual who claimed to have felt harassed. Perhaps your employer should block the Volokh Conspiracy, to prevent a disruption in the workplace? It would be his right.

If you haven't heard of Hoppe,or something else, fine. But don't expect that means it doesn't exist.

That's a reasonable argument. It has no relationship to our conversation; once again, you're complaining first and only later being brought up short on the facts. I'll repeat (for the third or fourth time) that I have never asserted or implied that the UNLV case didn't happen. I said that it was an example of your tendency to throw out unsourced and rambling allegations, without any hint of their relevancy.

I got an extremely modest GPA on the way to a generic BA at Enormous State University.

So? You have an internet connection. You can find information about these cases. Slow your roll and read before you complain. You keep griping about the Good News case, but every time you get the facts wrong. At no point have you moderated your outrage, despite being consistently mistaken about the things that you say upset you. There was no finding that "family" and "marriage" were "hate speech," de facto or otherwise. No one forced the employer to do anything. Now you're just assuming that the complaining employee must have been making up her complaint, although neither the facts available nor anyone with acccess to the full facts (not even the plaintiffs or their press agencies, so far as I've seen) as suggested that there's any reason to believe so.

I agree that the possibility of feigned outrage is a potential problem. But it's a always a potential problem, and surely an employer is in the best position to determine whether an employee's upset is real, and which party should be accomodated. So why not leave the griping to a case that warrants it? Maybe this Hoppe thing that's got you all knotted up.
6.7.2007 2:09am
Richard Aubrey (mail):
Colin.

The reason I believe that nobody was really offended is that I have a higher opinion of any individual of a species which has evolved through the trials Homo Sap and his antecedents have endured. Just as those who claimed to be emotionally ruined when David Horowitz showed up to argue against reparations were faking it, this is all bogus. No. I can't prove they were lying. But they can't prove they aren[t. So we have to look at other factors, such as if it's reasonable for the representative of a pretty tough species to get all mushy at the mention of a contentious topic. And then, if we accept they really are that disfunctional, we have to wonder about whether that gives them the right to force others to modify actions.

People are not that wimpy. Unfortunately, faking it has been given a great deal of power.

The employer was "forced" to do something because, absent that he has to think about hostile workplace issues. Heard of those?

The issue which primarily concerns me is not the legal case. Judges do what judges do and some of them, I expect, go home to giggle wildly about their day's work. I am not solely concerned about the legal outcome. I am concerned about the double standard which is probably--according to various reports--at work here. Hence the references on the televised report about the use of the n-word and other offensive terms which did not trigger any action. It would be easy, as I say, to fake offense and get the employer going in circles. Might even be fun.

It would certainly be deserved. And it would have the added benefit of shutting up those with whom the Good News people disagree.

There's a certain element in society which depends on the rest of us not doing to them as they do to us. I see no reason for that to continue in such situations as the Good News issue.

As to the facts of the case, once I figured out which case the fragmentary report I'd heard referred to, I was correct. The reason you claim I was not is that you are trying to make the issue the legal outcome, no matter how often I say I'm concerned about a double standard.

You aren't all that opaque, Colin. Recall when you insisted that the fact three Hezbollahs ran off an Israeli regiment didn't mean the Israelis were living on their reputation? How many in a regiment, you insisted. Crap. I saw twenty guys. No, if I didn't have the exact total, I had nothing. That we had at the least, twenty, didn't matter. If we didn't know the total, we had nothing. Not so clever lawyering does try to change the subject without being caught. You get caught.
6.7.2007 8:58am
Colin (mail):
No. I can't prove they were lying. But they can't prove they aren[t.

So you make the politically convenient assumption that an employee was lying about being upset by a flier denouncing her family, despite a total lack of supporting facts. I think that your positive assertion that the complainant was a liar puts a burden of proof (or at least of a rational explanation) on you, not her. Pretending that people don't get upset when their families are called illegitimate doesn't cut the mustard--unless, of course, you start from the position that it was wrong to accommodate the homosexual employee, and work backwards to invent reasons why.

Please recall that you don't know: (A) the full contents of the flier, (B) the nature of the confrontation between the employees over the flier, (C) the full contents of the previous fliers, or (D) the nature of the previous confrontations between the employees.

The employer was "forced" to do something because, absent that he has to think about hostile workplace issues. Heard of those?

There is absolutely no evidence to support this claim. The employer may have faced a suit if he refused to remove the fliers. We know for a fact, though, that he did get sued because he decided to remove them. You're putting more weight on the hypothetical lawsuit by the complainant than the actual lawsuit by the plaintiffs. Again, there's no actual basis for your assertion that the employer was coerced, other than your insistence that something must be wrong here, even if we have to make it up from scratch.

I am concerned about the double standard which is probably--according to various reports--at work here.

There is no evidence of a double standard here. This is, again, an invention on your part.

Hence the references on the televised report about the use of the n-word and other offensive terms which did not trigger any action.

Assuming the truth of the report (and because you have been playing so fast and loose with the facts, I consider that a large concession), it is still irrelevant. The "use of the n-word" would only "trigger any action" if someone complained about the use of the n-word. Is there any evidence that someone did that? I don't see any.

As to the facts of the case, once I figured out which case the fragmentary report I'd heard referred to, I was correct.

No. Your assertions about the facts of the case have been consistently and entirely wrong:

1. "Heard the end of a report from, naturally, California where an employer ruled that the n-word is okay but that 'family' and 'marriage' are hate speech."

This is not true. The employer did not make any ruling (to my knowledge) about the n-word. The employer definitely did not rule that "family" or "marriage" are hate speech or otherwise objectionable; the employer's decision was predicated on the full language and context of the fliers (including prior confrontations between the employees).

2. "The question is what words annoyed the employer."

This is not true. The employee was upset, and complained. Nor is there any reason to think that the employer ignored other complaints in favor of this one.

3. "The employer was 'forced' to do something because, absent that he has to think about hostile workplace issues."

This is not true. There is no evidence that the employer feared a lawsuit, justified or not, if he refused to take down the fliers. There is evidence that he did face a lawsuit if he did take down the fliers. The employer was not coerced into taking action; it resisted coercion brought in opposition to that action.

We should be clear about one thing above all else: everything that you say upsets you about this situation is something that you made up. There is no factual basis for your complaints, or any basis for making the large assumptions that are required to support your indignation.

You aren't all that opaque, Colin. Recall when you insisted that the fact three Hezbollahs ran off an Israeli regiment didn't mean the Israelis were living on their reputation?

Not until you mentioned it just now. As I recall, though, you're wrong about the issue. The question raised by myself and others wasn't just how many Israeli soldiers there were, but how many there were in comparison to the number of hostiles, what force multipliers might be operating on the hostiles' behalf, what the Israeli rules of engagement were, where reinforcements were... There, as here, you take the least amount of fact necessary to identify a situation, and immediately leap to the politically convenient conclusions. Your performance here, which is based entirely on your off-the-cuff misrepresentations of the facts and the issues, is especially egregious. But here, as with the Israeli troops, what you don't know doesn't seem to concern you at all. All you seem to care about is the chance to be snide and sneering towards parties that you don't like, whether or not there are facts to support your allegations. With the Israeli video, we don't know all the facts. Here, the facts that we do know directly contradict your assertions about what was so outrageous about this employer's decision.
6.7.2007 12:18pm
Richard Aubrey (mail):
Colin. You really don't get it.

Just for starters, there is no evidence the employer thought about a hostile work environment issue. So? I am looking for a reason for the employer to take the action he took. Jennings complained. He could have done something or not. Why did he choose to do something? What kind of evidence would there be? I work in the private sector, and in fact am peripherally involved in employment practices issues. Employers ALWAYS think about hostile work environments. If they don't, we, or others in our field, kick them in the ass and, if necessary, quit doing business with them. We know he thought of hostile work environment because he was awake. We're not sure employers dream of hostile work environments when asleep, but we're pretty clear the issue is on their waking minds.

More to the point, the question is what happens if the Good News people start complaining? Keep in mind that the employer doesn't get to judge what makes somebody unhappy, under your rules. The burden of proof is not on him to determine whether the Good News people are playing games. He'd have to take them seriously, under your rules, even if he is absolutely convinced they're screwing with him. Even if they are screwing with him.
Let the Good News people and their like in other employ start this and you'll wish you'd never put your money on feigned offense as a tactic. It only works if your guys do it.

The employer had the opportunity to forbid any communication but business on the internal web. He didn't do that. Now he's in the business of trying to figure out who gets to be offended and who is told to get a life. If nobody but Jennings has complained so far...so what? He has to figure out what to do in the future.
Fortunately, it's a government entity and so has effectively unlimited legal defense funds.

As to the IDF documentary, it was at least twenty to three with artillery prep (there's your ROE). And internal issues showed major blunders.
You are grasping at straws.

And, as I say, changing the subject without the skill to make it seamless.
6.7.2007 1:40pm
Colin (mail):
I am looking for a reason for the employer to take the action he took.

No, you're making up reasons for the employer to take the action he took, because his actual reasons don't support your preconceived sense of outrage. I'll just reiterate the central lesson we've learned from this tendentious exchange: everything that you say upsets you about this situation is something that you made up. You've been consistently mistaken about the facts in this case, but rather than backing down on your initial allegation that this was an outrageous case, you just redefine your rationale for being outraged. We've gone from "family" and "marriage" being ruled hate speech (untrue), to the employer being offended by those terms (untrue), to the employer being forced to take action by legal threats (untrue). Now you've arrived at a novel assertion that, because no one can prove the employer wasn't secretly afraid of legal action, it's reasonable to assume that he was, so it must be an outrageous case! Very dishonest, I must say.

Please, take the last word and let's be done with this thread. We can pick it up again the next time your partisan vitriol turns out to be based on invented facts.
6.7.2007 4:23pm
Richard Aubrey (mail):
No, Colin, I don't want you to get away with mispresenting my point.
My point is that there are two issues, the legal case and the actual thing that happened. I'm less concerned about the legal case.
I'm concerned about what really happened. We don't know why the employer chose to do what he did, but we can believe he had a reason. There were no legal threats--I didn't say that--there was the ever present issue of hostile work environment. We don't know why he did what he did but you are not insisting he had no motive at all, are you?
The motivation, secret or otherwise, is not what makes this outrageous. What makes this outrageous is that it happened at all. What makes this outrageous is the power that feigned offense has been given.
The reports of "hate speech" are not in the legal documents because they were not part of the complaint. That does not mean they did not happen. They've been reported, and, by your standards, somebody now has to prove they didn't.
And, because I'm in a bad mood, I have to say I'd just LOVE to see the Good News people start gaming his sorry ass seven ways from which way, playing the same game you favor.
The words other groups used on the internal web provide ample opportunity for feigned offense. I hope they start tomorrow morning.
And if he refuses to ask how high to jump, I hope they sue his sorry ass for a hostile workplace environment.
The neat thing is, given your points so far, there would be nothing you could say about it and be consistent.
Time to put this crap back in the ground and being too proud or too honorable to use these tactics isn't getting us anywhere.
6.7.2007 7:42pm