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Freedom of Speech Under Attack, continued…

I noted in last week’s newsletter that the American left has abandoned its traditional support for free expression and now seems intent on criminalizing politically incorrect speech. One notable manifestation of this change is a growing consensus that "hate speech" ought to be subject to criminal prosecution. In a blog post last month, Constitutional law scholar Eugene Volokh responded by pointing out that, "There’s no ‘hate speech’ exception to the First Amendment." Unfortunately, as he reported last week, sometimes the desire to prosecute hateful speech is more powerful than the desire to abide by the Constitution:

The prosecutor’s office in Flathead County, Montana…is arguing that speech that exposes Jews — or other religious, racial, and other groups — "to hatred, contempt, ridicule, degradation, or disgrace" is criminally punishable, unless it consists of true factual statements….

The defendant in the case, David Lenio posted a series of hate-filled and vaguely threatening Twitter messages, including:

I think every jew on the planet deserves to be killed for what kikes have done to our #dollar and cost of living;"…"I’m a wage slave to ink and paper dollars we print to bailout jewish mega banks;"…"So Hope for many REAL dead kikes."…

Commenting on those messages, Volokh observes:

Lenio’s specific statements, with their talk of murder, might be prosecuted as true threats of criminal conduct; there are…problems with such a prosecution…but at least that’s a plausible approach. But the Montana prosecutor has deliberately chosen to go far beyond the threats argument. Instead, the prosecutor has interpreted the Montana criminal defamation statute in a way that…risks criminalizing derogatory opinions as well as controversial factual statements about religious groups, racial or ethnic groups, either sex, sexual orientations, professions, political movements, and more.

If the criminal defamation count is upheld, "hate speech" prosecutions…even for statements that lack any threat of violence…would become eminently viable. A dangerous potential precedent.

2nd Amendment News

At, Damon Root reports that:

The U.S. Supreme Court dealt Second Amendment supporters a major defeat today by refusing to hear an appeal filed by San Francisco gun owners seeking to overturn that city’s requirement that all handguns kept at home and not carried on the owner’s person be "stored in a locked container or disabled with a trigger lock." Today’s action by the Court leaves that gun control ordinance on the books.

In an unusual move, Justice Thomas published a dissent in which he explained why he disagreed with the Court’s decision not to hear the case:

Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it "ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of self-defense." District of Columbia v. Heller, 554 U. S. 570, 630 (2008). Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.

Justice Scalia joined in the dissent.

Speaking of Justice Thomas

At Above the Law, Tamara Tabo refutes some of the false and obnoxious criticisms that are commonly leveled at the Supreme Court’s only African American Justice, i.e., that he is "lazy," "mush-minded," "insincere," and "a conservative lap dog." She notes that:

Justice Thomas’s contrarian ways, even if imperfect, reveal how threadbare many of his detractors’ most common criticisms are. If he was incapable of intellectual independence, or insincere, or flat-out stupid, Clarence Thomas would not be such a prolific dissenter….

Understandably, Tabo is particularly sensitive to the charge that Thomas is lazy. Regarding Jeffrey Toobin’s New Yorker hit-piece, "Clarence Thomas’s Disgraceful Silence," she says:

Toobin claimed that the Justice’s eight-year silence during oral arguments is "demeaning to the Court" and evidence that he is "simply not doing his job."…I’m pretty sure that Toobin took pains to avoid the word "shiftless" to describe the Justice, even if it came to his mind."

In response she says:

Lazy Justices don’t write dissents. Lazy Justices join majorities that they aren’t fully sure of. Lazy Justices sign on to majorities when they haven’t done the hard work of forming an independent view.

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