The Forgotten Legacy of Free Speech on the ‘Left’

Aside from Bill Maher’s audience – who, as the late Christopher Hitchens once noted before giving them the finger, will “clap at apparently anything” – the “liberals” (heavy on the quotes) in Huffington Post’s social media comments sections represent the single dumbest group of people ever assembled.

In a giant corporate circle jerk, The Huffington Post (HuffPo), previously owned by multinational corporation Verizon Media, is now owned by a combination of Verizon Media and “news” conglomerate Buzzfeed which shamelessly markets itself as “independent media.” The HuffPo/Verizon/Buzzfeed Empire donates heavily to DC Swamp politicians on both sides of the aisle.

It is, in short, Ivy League incest — a very Brooklyn, very upper-middle-class-cosmopolitan white, very woke affair. None of these people’s parents farm corn in Nebraska.

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The War on Porn Is Back

“If you want better men by any standard, there is every reason to regard ubiquitous pornography as an obstacle,” declared New York Times columnist Ross Douthat in a 2018 column bluntly headlined “Let’s Ban Porn.”

In this, as in many things, Douthat was ahead of the conservative intellectual curve by a year or two. And in this, as in many things, he was dangerously wrong.

In due course, Douthat has been joined by the folks at the Christian journal First Things, who have taken up the anti-pornography banner as part of their peculiar subvariant of a resurgent interest in nationalism among traditionalist conservatives. In last year’s manifesto, “Against the Dead Consensus,” a clutch of First Things friends and familiars reject “economic libertarianism” and “the soulless society of individual affluence” and add that they “respectfully decline to join with those who would resurrect warmed-over Reaganism.” Which makes it all the more disconcerting when they turn around and immediately kneel before the scolding ghost of Ed Meese.

As attorney general, Meese sought to deliver on Reagan’s 1987 threat to “purveyors” of obscene material that the “industry’s days are numbered.” It was Meese who pulled together the first National Obscenity Enforcement Unit. (One surprising and familiar name also crops up in the tale: then–assistant attorney general and recent Libertarian Party vice presidential pick William F. Weld, who was given the task of bringing together various agencies for the task force.)

Meese’s bill of grievances against the relatively constrained pornography of his day—which he credited in a speech to a report from a federal Commission on Pornography convened the previous year—will sound alarmingly familiar to readers of Douthat and First Things. He asserts “that violence, far from being an altogether separate category of pornography, is involved with almost all of it; that there are empirically verifiable connections between pornography and violent sex-related crimes; that the pornography industry is a brutal one that exploits and often ruins the lives of its ‘performers’ as well as its consumers, and that the ‘performers’ often include abused children and people plied with hard drugs; that whether or not it is directly imitated by those who consume it, pornography has a deleterious effect on what its consumers view as normal and healthy.”

The effort was, in some sense, successful. By 1990, the Department of Justice had managed to use obscenity statutes to force seven national porn distributors out of business. But the decades that followed were boom times for porn as the industry moved into new forms of distribution, so the success was far from permanent.

In a rare moment of sanity in 2011, the Justice Department shuttered what had come to be known as the Obscenity Prosecution Task Force, resulting in the delightful Politico headline “Holder accused of neglecting porn” and a harrumph from peeved conservatives, who vowed to reverse the Obama administration’s decision as soon as they could.

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Kentucky Republicans pass bill making insulting a police officer a crime

In recent times, there have been increasing incidences of police arresting people for criticizing them online, particularly through memes. Due to the First Amendment protections, these cases have been dropped.

But a new bill out of Kentucky aims to try again.

The Senate of the State of Kentucky passed a bill that criminalizes insulting the police. Critics of the bill claimed the legislation would have a chilling effect on free speech and is actually a violation of the First Amendment.

The Senate Bill 211 was brought by Sen Danny Carroll (R-Benton), who is a retired police officer. According to Carroll, the bill will serve as a statement to protesters who “tried to destroy the city of Louisville” during the Breonna Taylor protests and riots last year.

The bill increases penalties on crimes related to rioting and prevents the early release of people found guilty of such crimes. But the controversial part of the bill is the criminalizing of verbally provoking police officers to the extent they feel a violent response is necessary. It passed by a 22 to 11 vote, with six Republicans joining Democrats in voting against it.

Carroll insisted that “insulting an officer is not going to cause anyone to go to jail.” However, according to the Courier Journal, the bill “states a person is guilty of disorderly conduct — a Class B misdemeanor with a penalty of up to 90 days’ imprisonment — if he or she ‘accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.’”

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Biden Justice Department Sides Against Free Speech Advocates in Big First Amendment Case

The U.S. Supreme Court will hear oral arguments later this term in a case that pits free speech advocates against public school officials who seek to punish students for certain off-campus social media posts. Last week, the Biden Justice Department entered the fray with an amicus brief that opposes the free speech side.

The case is Mahanoy Area School District v. B.L. In 2017, a high school freshman and junior varsity cheerleading team member took to the social media site Snapchat in order to complain about her failure to make the varsity cheerleading squad. The student—known by the initials B.L. in court filings because she is a minor—posted a picture of herself and one of her friends with their middle fingers raised accompanied by the text “fuck school fuck softball fuck cheer fuck everything.” She was suspended from the team as a result of that post.

B.L. and her parents, represented by the American Civil Liberties Union of Pennsylvania, are now battling the school in court. They argue that the First Amendment flatly prevents school officials from punishing students for such entirely off-campus speech. “In a weekend comment in an evanescent Snapchat message,” B.L.’s legal team argued in a court filing, “B.L. swore in expressing her disappointment at not making the varsity team to her friends. The notion that a school can discipline a student for that kind of spontaneous, non-threatening, non-harassing expression is contrary to our First Amendment tradition, and finds no support in [the Supreme Court’s] student speech cases.”

In Tinker v. Des Moines Independent Community School District (1968), the Supreme Court forbade public school officials from punishing students for exercising their First Amendment rights on school grounds unless the speech at issue “would materially and substantially interfere with the requirements of appropriate discipline and in the operation of the school.”

In 2020, the U.S. Court of Appeals for the 3rd Circuit invoked that precedent while ruling in B.L.’s favor. “Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur,” the appeals court held.

The Biden Justice Department is now asking the Supreme Court to undo B.L.’s sweeping First Amendment victory at the 3rd Circuit. “The court of appeals incorrectly held that off-campus student speech is categorically immune from discipline by public-school officials,” the government argued in a friend of the court brief filed in support of the Mahanoy Area School District.

According to the Biden Justice Department, while some off-campus speech deserves constitutional protection, the 3rd Circuit went too far, unfairly hamstringing school officials, who, the government maintained, require significant leeway when it comes to regulating and punishing student speech. “When the student’s off-campus speech targets an extracurricular athletic program in which the student participates,” the brief argued, “such speech might properly be regarded as school speech that is potentially subject to discipline by school officials if, for instance, it intentionally targets a feature that is essential to or inherent in the athletic program itself.”

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Larry Flynt, ‘Hustler’ Founder and First Amendment Activist, Dead at 78

Larry Flynt, the publisher of the sexually explicit Hustler magazine whose legal battles turned him into a flamboyant crusader for free speech rights, has died at 78. Flynt’s famed legal battles — which he took to the Supreme Court — were memorialized in the 1996 film The People Versus Larry Flynt, starring Woody Harrelson. Flynt’s death was first reported by TMZ and his brother Jimmy Flynt confirmed the news to The Washington Post. A cause of death has not been revealed.

Larry Flynt was a Navy veteran who built a small empire of nude adult clubs in the late 1960s. He took those strip clubs and built them into one of the world’s most successful sex-based brands, transforming a newsletter about the clubs into Hustler magazine in 1974, publishing adult entertainment that critics frequently lambasted as obscene and degrading to women. The magazine once published a photo illustration of a nude woman being passed through a meat grinder. The feminist Gloria Steinem famously described Flynt as “a violent, sadistic pornographer.”

Always brash and opinionated, in his later years, he traveled most places in a gold-plated wheelchair. But he prided himself on being a self-made man who came from very humble beginnings. Larry Claxton Flynt Jr. was born in Lakeville, Kentucky on Nov. 1, 1942. His father was a sharecropper and he grew up in poverty; in his 2004 book Sex, Lies & Politics: The Naked Truth, Flynt cited his meager beginnings as an influence on his attitude toward sex. “I’m a hillbilly, and people like me come to sex without all the hang-ups imposed by the hypocritical, ‘you must maintain proper appearances’ morality of the middle class,” he wrote. “When good Christian folk tell me that sex is dirty, I say, ‘Yeah, when it’s done right.’ For me, sex has always been a way of saying, ‘I am outside the reach of your power.’ “

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Will Biden and Harris Criminalize Memes?

There is no doubt that Douglass Mackey, the man behind the 2016 election-era alt-right “Ricky Vaughn” Twitter troll account, is a miscreant. He spewed anti-Semitic and otherwise abhorrent bile from his pseudonymous perch, contributing to a hostile Twittersphere climate. 

Nevertheless, the Biden Department of Justice (DOJ) is legally wrong—and engaging in petty harassment of a political enemy—to expend limited prosecutorial resources to target Mackey, whose Twitter account has long been suspended, for alleged conspiracy to deprive others of their constitutional rights. 

DOJ’s press release summarizes Mackey’s legally relevant underlying conduct: “As alleged in the complaint, between September 2016 and November 2016, in the lead up to the November 8, 2016, U.S. presidential election, Mackey conspired with others to use social media platforms, including Twitter, to disseminate fraudulent messages designed to encourage supporters of one of the presidential candidates…to ‘vote’ via text message or social media, a legally invalid method of voting.” The DOJ complaint specifies that the law Mackey is charged with violating is 18 U.S.C. § 241, which covers, in relevant part: “two or more persons conspir[ing] to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”

Hold aside the point that voting in the United States constitutional order is, contrary to what myriad progressive Supreme Court justices have mused, better understood not as a “right” but as a state-regulated privilege subject only to federal oversight via circumscribing constitutional (namely, the 15th, 19th, 24th, and 26th Amendments) and statutory (namely, the Voting Rights Act of 1965) provisions. Prosecutors in the Eastern District of New York (EDNY) still have to prove an actively coordinated, multi-party conspiracy, and that such a conspiracy did not merely produce fraudulent tweets, but that those tweets actually had the effect of oppressing, threatening, or intimidating Hillary Clinton supporters who intended to vote for their preferred candidate. That is, in short, highly dubious—this case isn’t going anywhere. Moreover, who would have guessed that the Biden DOJ took such a dim view of Clinton voters, believing them to be so easily manipulated? 

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