As The Supreme Court Considers Major Free Speech Case, Liberals Can’t Have Their Cake And Eat It Too

Freedom_of_SpeechBelow is my column in The Hill newspaper on how liberals in New York are supplying the Supreme Court ample reason to rule for a Colorado cake shop owner in the Masterpiece Cakeshop case.  As the Court decides whether a baker can refuse to bake a cake deemed offensive, many liberals are asserting the right to refuse to serve conservatives based on their political views or associations.

Here is the column:

As the Supreme Court readies its historic decision on whether Colorado cake shop owner Jack Phillips can refuse to make a special cake for a same-sex marriage due to religious objections, New York may have given the justices multiple examples of why it must answer this and other controversies not on religious but free speech grounds. A Manhattan judge ruled recently that a Donald Trump supporter wearing a “Make America Great Again” hat could be constitutionally thrown out of a bar for his political views. Other incidents in New York show the often biased treatment given speech based on its content.

Justice David Cohen grilled Greg Piatek on whether he could claim a “spiritual” element to his MAGA hat and, after rejecting a religious-based claim, declared it a “petty slight” that is unprotected. (Of course, only people unfamiliar with being tossed out of establishments because of political beliefs can dismiss such acts as “petty.” I am fairly certain Justice Cohen does not have that problem in Manhattan. Conservatives, however, do.) At New York’s Fordham University, a group of conservative students were thrown out of Rodrigue’s Coffee House for wearing MAGA hats. The shop’s manager insisted the hats violated its “safe space” policy, as if being conservative is now a de facto threat to other students.

Recently, conservative speaker Milo Yiannopoulos was forced to leave a bar in New York City after a crowd — which reportedly included Annie Shields, an editor at the Nation and a co-chair of the Bronx Democratic Socialists of America, as well as other journalists — chanted, “Nazi scum get out.” The bar did not kick out Yiannopoulos itself but, according to Justice Cohen’s ruling, it could have. Indeed, journalists like Vice reporter Allie Conti mocked Yiannopoulos as “scared to death” and described being verbally abused and chased out as a “non-event.”

An administrator at State University of New York at Oswego reprimanded a student for making other students feel “uncomfortable” by raising liberal intolerance of free speech at an “open mic” event last month. Nicole Miller was called out under an “unofficial policy,” thereby confirming the very point of her remarks. Trisha DeWolf, the SUNY Alcohol and Other Drugs Program coordinator, contacted Miller and said her discussion of free speech left other students uncomfortable. DeWolf wrote in an email that “a few of our students were deeply hurt by some of your remarks (their words, not mine). Moving forward, there will be written guidelines for performers, which I hate to have to do.”

In other words, the school reserves the right to refuse access to open mics based on the content of the speech. It is not clear if SUNY is going to bar students from raising racial intolerance or other discomforts, or simply leave it to administrators like DeWolf to keep speech in what she views as the comfort zone. Liberals appear to want to preserve the right to deny service to conservatives on the basis of political sensibilities while preventing conservatives from denying service based on religious sensibilities, as in the Masterpiece Cakeshop case

As I have previously written, both sides are mistaken. It is not a distinction drawn along religious freedom lines. It is all about free speech. If the Supreme Court were to rule against the cake shop owner, it would mean that no one would be able to refuse service based on religious objections, even though Phillips said he would sell any available cake to any customer and only objected to preparing a special cake. That decision would also apply to a Jewish bakery asked to make a “Mein Kampf” cake or an African American bakery asked to celebrate a skinhead wedding. Would they also be denied the right to refuse?

If the Supreme Court carves out a narrow bona fide religious exemption, would atheists and agnostics then have no right to refuse offensive cakes? The ridiculousness of such a rule was made plain by Justice Cohen: Piatek was forced to frame his claim in “spiritual” terms and stressed that he had worn the hat to the 9/11 Memorial as a “spiritual tribute to the victims of 9/11” and that is was part of his “spiritual belief.”

Yet, Justice Cohen virtually mocked the claim as some “creed of one.” Of course, the ridiculous thing was forcing a bona fide exercise of free speech, which was harming no one, and forcing it to be translated into a religious objection. The failure to recognize all of these instances as protected free speech leads to absurd, biased results. The same advocates celebrating the right to toss out people wearing MAGA hats presumably would celebrate the right to refuse to make a MAGA cake. However, it means that a bar could toss out someone wearing a Black Lives Matter hat or an American Civil Liberties Union shirt.

There is no easy solution for a society that respects free speech while protecting equality. Anti-discrimination laws have been on a collision course with free speech for decades. It is time to reestablish a bright line that protects free expression, while also protecting religious and political viewpoints. It would mean that a cake shop or other business could refuse to write things deemed offensive, whether it is profanity or political statements or religious values, which would leave the rest to the public and the market to sort out good and bad businesses.

Phillips may find himself labeled discriminatory by not just same-sex couples but also a wider array of customers offended by his actions. Free speech will correct bad speech, particularly with the speed of social media and the internet. What you cannot do is protect the right to throw out Trump supporters but not the right to throw out Democratic socialists. Embracing free speech in these controversies will not mean that people can be turned away due to their religion, race, gender or sexual orientation. It would only apply to expressive acts where a business owner is asked to prepare something that is deemed as offensive. The Constitution would still protect against refusal to serve based not on the act of free speech but on the class or identity of the customer.

Indeed, cities like New York could legislatively bar the denial of service based on political identity so long as it protects all viewpoints. However, it is unlikely that the New York City council will move to protect all speech equally, including symbols that many find offensive like white nationalist symbols or groups deemed anti-semitic or racist. What the recent New York cases show is that liberals cannot have their cake and eat it too in decisions like Masterpiece Cakeshop. You either protect free speech for everyone or give the government the power to determine what speech is permitted and what is proscribed, from coffee shops to cake shops.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

286 thoughts on “As The Supreme Court Considers Major Free Speech Case, Liberals Can’t Have Their Cake And Eat It Too”

  1. I work for a municie court. A gay employee who was extremely provocative engaged many conversations with me about my spiritual beliefs my values etc. never once about gay lifestyles in general. He was fired for ligitimate reasons. He is now suing the city for a hostile work environment naming me and the head majistrate. He made outrageous accusations. I have an impeccable record here. He is using me. I’m being investigated along with head Judge. My co-workers some are making it uncomfortable to be here. He is looking for money. This nonsense has to stop! My hope is the cake baker case rules in favor of religious freedom I am in the same state! This is wrong on so many levels. He’s a “protected class”. Where’s my protection!?

    1. Hang in there, Colleen. I faced something similar ten years ago. A group of my colleagues didn’t like my views about unionization. Tthey decided to get rid of me by having one of the minions trump up a racism charge against me. I knew what I did/didn’t say to this woman and none of it was racists. My work situation was very unpleasant and uncomfortable for quite a long time. Folks stopped talking to me. Several asked to be reassigned because they refused to work with the “racist”. People who I thought I knew well–and who knew me well–stopped interacting with me (later, several apologized and said they were afraid of becoming a target too). I refused to back down and I fought the charges. Ten years later, I’m still working for the same university and have been promoted several times. The accuser is stuck in the same low-level job classification… and she keeps bringing up bogus claims against anyone who she dislikes. Everyone sees her for what she is. You will prevail.

      1. Thank you. I will never share my views w anyone here again. He asked and obviously was setting me up. The other 2 people he’s named are just as kind as can be. I correct the facts he resigned then wanted his job back they said no and then I was named.
        Is there anyway to remove my name from this post. I never post not on social media at all just read this and needed to vent. I️ appreciate your kind words. Thank you!

        1. Even SCOTUS recognizes the need for and right to anonymous speech.

          Get yourself an email under a pseudonym that can not easily be traced back to you.

          Then you are free to speek as you please.

          If you are sufficiently paranoid that you are worried about the NSA tracing your posts, then you shoud probably give up. While it is probable that you can post in ways even they can not trace, you are talking about getting really really anonymous accounts and using TOR

  2. There is another case of “having one’s cake and eating it too” that gets no mention. IMHO it deserves mention because it makes the conversation around immigration/ illegal immigration and “sanctuary” cities/states more interestting and it appears to involve another legal complication. During the Bush administration, several local entities tried passing local laws over enforcing immigration law. The concern then was that the federal government was not adequately enforcing the law so they would take matters into their own, local, hands. Hazelton, PA is an example of a municipality trying to do this and Arizona is an example of a state attempting to do this. The laws were framed to be in compliance with federal laws so therefore not in conflict with federal laws. The courts ruled on a pretty consistent basis that state and local authorities have NO authority on immigration law as it is a federal authority and that authority preempts any other authority. Given those rulings, it is a continuing mystery to me why cities and states are allowed to declare themselves “sanctuaries” free of any immigration enforcement. I am not a lawyer nor do I even pretend to play one but the seemingly apparent legal contradictions puzzle me every time I see a pronouncement by a mayor or governor that they will not enforce federal law. It seems to me that courts have made it clear any local authority on immigration is preempted by federal authority.

    1. State officials must enforce the federal law of the United States and are complicit and in violation of federal law when they do not. Any decision to the contrary is usurpative, arbitrary, biased, illegal and unconstitutional. Congress has the singular authority to set immigration law. Municipal, county and state executive officers that violate federal law must be arrested and prosecuted with extreme prejudice to the fullest extent of the law.

  3. Many conservatives are declaring Trump to be something else and are becoming “never Trump”ers, so the MAGA hats are not the declarations of conservatives but of those who accept Trump’s misogyny, bigotry, corruption., and efforts in destroying all agencies of the government while changing our foreign alignments from more democratic countries to autocratic ones.

    1. not the declarations of conservatives but of those who accept Trump’s misogyny, bigotry,…

      Does that include this 22 year old black man and his family? You have no clue as to what conservatism actually means.

      The Cheesecake Factory has suspended workers following an incident in which a customer says he was harassed by roughly a dozen employees for wearing a “Make America Great Again” hat.

      http://www.businessinsider.com/cheesecake-factory-suspends-workers-after-maga-hat-incident-2018-5

      1. Olly – the Democratic party still threatens violence against black people who dare to think, speak, or vote outside Democratic Party lines. Both white and black Democrats threaten violence and use racial slurs to try to pressure blacks to vote a certain way. Democrats threaten and use gender slurs against women who do not vote Democrat. That is anathema to the freedom that African Americans and women were denied, globally, for so many years.

        You would think that more people would take the red pill and stand up against this attempt to force compliance. If Democrats would finally lay down this movement to control and demonize people, then the parties would only bicker about how best to run the country and the economy. Neither side would consider the other evil, just different in their point of view. But this has been their Achilles Heel. Even back in the days of Eugenics, they truly believed they should have the power to run others’ lives. I hope one day they move past that paradigm and support personal freedom.

    2. bettykath,

      You just proved JT’s point.

      First, how are you going to determine what the hats mean? Should businesses hire the CIA to torture customers into confessing what their hats REALLY mean? If they give an “approved answer” (approved by liberal censors???) do they get to come into the restaurant?

      Jeesh. My experience with you on this blog is one of you trying very hard to censor my own speech when I was critical of your beioved war criminal, Obama. Therefore your thinking does not really surprise me. Still WOW, just WOW on this one.

      1. Bettykath apparently believes that she knows what other people think, and that if those people declare a contrary opinion of what they think, they are liars.

        How do you argue with anyone who actually, firmly believes they know what you think better than you do? It’s an irrational argument, and you cannot rationally debate with the irrational.

    3. As a #NeverTrump’er myself I disagree with your characterization of Trump supporters.

      The overwhelming number of them are good, decent, and patriotic Americans with whom I disagree on Trump’s merits.

      One can be critical of Trump without demonizing his supporters.

    4. Earth to Bettykath. The only NeverTrumpers left are a scatter of opinion journalists, Capitol Hill krill, and Justice Department employees. Trump’s approval ratings are seeing some small incremental improvements from month to month and among Republicans are similar to those of George W. Bush ca. 2005.

  4. I am a Liberal. I fully support Jack Phillips’ petition in the Masterpiece Cakeshop case. I do not support refusing service to anyone for any reason other than disturbing the peace or menacing or loitering or some other such criminal offense. So there. Stop lumping people together with “labels.” And don’t even think about repealing the public accommodation laws under CRA Title II.

  5. Funny, that freedom of religion stuff seems to work just fine for people that refuse to remove a hijab or drag their kids to midnight mass on a school night. The only thing that’s ‘petty’ in this scenario is the glaringly obvious, discriminatory double standard.

  6. What I always wonder about this forced selling is this. Suppose the baker makes the cake but does a crappy job since he is being forced into this. Do police come in and force him to do a better job? Will the govt come in and watch every step as he decorates the cake? Will there be some special panel to judge whether or not the cake is acceptable. “Mr. Baker, are cameras are showing us that your heart is not in this, now do it right!!!”

    1. Jim22 – you make an excellent point. Is there an acceptable point of cakehood and should the government be the one to decide?

        1. FishWings – have you ever bought an As-Is open package from a store? You know there is a mark-down and chance things are not going to go well, but the price is good enough that you are will to take the chance. It is the same with cakehood. You see a cake with a flaw and you bargain for it. You (the market) decides if it is good enough for you. If it is for your wedding you want perfection. If you are taking it home to pig out after a bad week, who cares. 😉

        2. Only if the free market continues to exist. At this point with (social) media bullying, laws needn’t even be passed, the mob and it’s deep pockets suffice. Even if this collision was ‘inevitable’ as Jon says, the handling of the situation sure wasn’t.

      1. Also, who is going to make sure that photographers forced to do gay weddings are acting jovial enough?

    2. @Jim22 May 16, 2018 at 8:40 AM
      “What I always wonder about this forced selling is this. Suppose the baker makes the cake but does a crappy job since he is being forced into this.”

      Your point’s well taken. If someone doesn’t want to take my money for his services, I’ll look elsewhere for that service. In the unlikely event there aren’t alternative services available, I’d rather perform the service myself or do without the service altogether, than to force the refusing service provider to accommodate me.

      A grudging service isn’t likely to be a good one.

    3. I would never, ever, eat food someone was forced to prepare for me against his will. I would never, ever, trust my wedding photography to a photographer who was taking the pictures against his will.

      I really do see both sides to the issue. I would not want people discriminated against, nor would I want business owners forced to make something against their will. I personally support gay marriage, but I would not support legally recognized polygamy. I would be unhappy to have to make a hypothetical cake supporting a 16 year old marrying, with her family’s permission, a 40 year old bigamist as his 4th wife. If I was forced to make it, I would bake in messages like “escape!!!” I wouldn’t want to make an anti-Semitic cake or serve a white supremacist crowd. No matter how polite the KKK might be, I would not want some be-robed Klansmen in my hypothetical cafe, there with all the families.

      I don’t like the thought that owning a business makes you indentured to a degree and helpless to say no. It doesn’t matter if the issue someone else has would not bother me. I can think of some situations that would. Should I have the right to say no?

      I don’t have all the answers, but this is a discussion the country should have. I wish we could discuss it as a nation without declaring everyone who wants a say evil, but that seems like a pipe dream.

      1. Karen S – I am very passive-aggressive. If I am forced to do something. It either is not going to get done or it is going to be poorly done. 😉

  7. As for products and services, let the free market decide. The pizza parlor in Indiana went out of business because they chose not to serve “some” people. As for the right-wing crying about free speech, why did I have to watch 10 people with AR-15’s standing on street corners talking about their right to carry a gun anywhere, and it got covered by every MSM for days and days, and got 15 minutes on the march on DC where millions were trying to get their voice heard. Corporate media gives more time to the right than the left, don’t believe me, watch what happens every Sunday on the political talk shows.

    1. I’m thinking you might want to re read your post. I agree with you. Why did the MSM cover gun carriers? Because it is a hot-button topic and sells. Especially to liberals who think they should all matters based on their feelings. Oh, and maybe after reviewing any recordings of the millions who were trying to get their voices heard, the MSM realized there wasn’t much substance there to report on. I don’t watch Sunday talk shows, they are just MIC-owned propaganda outlets making the case for increasing military government expenditures. Which do help for more Democratic nation-crushing, such as Libya, for example.

      1. But as a provider of public goods or services or as an employer you are not free to discriminate based on, for example, race.

        Not in America, anyway. Feel free to emigrate if this offends you.

        1. Feel free to emigrate if this offends you.

          Get back to me when you’ve learned that a set of statutory laws passed in 1964-68 (and always subject to sectarian interpretation) are not entrenched clauses of the Constitution and are not on Moses stone tablets.

          1. They are on the books, enforced, and extremely unlikely to be rescinded. I would wager to guess that not one Justice currently on the SCOTUS would support overturning the laws currently prohibiting discrimination by race in public accommodations.

            Indeed, I doubt that you could find one Federal Judge in the country so inclined.

            1. I would wager to guess that not one Justice currently on the SCOTUS would support overturning the laws currently prohibiting discrimination by race in public accommodations.

              Judges aren’t members of Congress.

              1. You believe that there is a possibility that Congress will rescind the laws prohibiting racial discrimination in public accommodations?

                I regard that as unimaginable, even if the Republicans had a super majority in the Senate and 300 Representatives in the House and a President willing to sign off on that!

                1. Law, society, and culture improve as well as deteriorate, so I’m looking forward to the restoration of freedom of contract and association.

            2. wildbill99 – if they could discriminate against whites, the Ninth Circus would be all over it like white on rice. 😉

              1. Paul, as I know you’re aware, there is an important testing of the right of Harvard to disadvantage Asian applicants in the name of affirmative action.

                I hope Harvard loses, because racial/ethnic discrimination is wrong and it shouldn’t matter whose ox is being gored.

                1. wildbill99 – I could not agree with you more. It should be a level playing field for all students.

        2. Then, like I wrote, we are not truly free. You may be a fan of letting others control what you can and can’t do, I am not. Hopefully the SCOTUS will rule in favor of discriminating and installing more freedoms.

            1. Nope, I never mentioned segregation as a law. People should be free though to segregate willingly on their own free will. Why would you be against that? I take it you are a full supporter of such evil groups like BSA not being allowed to just be for boys.

              1. You ignore the victim here, the person being discriminated against. His freedom is by necessity lessened by allowing others to discriminate against him on account of his race.

                You also ignore the history of the Civil Rights Acts which were intended to, among other goals, destroy the system of unequal opportunity and access then enforced by Jim Crow laws in the South.

                1. You ignore that people should and will be able to judge good and bad discrimination among themselves. Boy Scouts good, not serving blacks bad. People in this day and age will not support the later. But society is more free letting the idiots be idiots.

                  1. People are free to discriminate on any basis they want in their private affairs, but not when they provide a service or product to the public, or in employment.

                    1. “People are free to discriminate on any basis they want in their private affairs, but not when they provide a service or product to the public, or in employment.”

                      Private is – NOT Government. There is no difference between negotiating yard work with your neighbor, and selling a cake to someone off the street.

                      The fact that our law has made a stupid distinction that does not exist, doesn’t mean we should pretend that fiction is real.

                      Worse still it is your fake “public/Private” distinction that has made it so hard for those in the middle class and below to get into business.

                      These stupid laws that you think are built arround this purportedly clear distinction of “providing a product or service to the public or employment”
                      Are why kids do not have lemonade stands, or mow the grass or have paper routes.
                      It is also why it is so damn hard for people with very little to substitute hard work for capital and build their own businesses doing things like painting houses, mowing the grass, cutting hair, ….

                      You can bake a cake and give it to your neighbor – though in many places you can not run a charity bake sale without running afoul of regulations. Regardless, if your neighbor offers to buy the cake you can not accept, nor can you go – I could make some money on the side baking cakes – or bread or ….

                      If you try to do so you immediately find that you run afoul of dozens of laws.

                      AGAIN – the real issue is NOT religious freedom.
                      The real issue is NOT free speech.
                      The REAL issue is just freedom.

                      Your assertion that
                      “People are free to discriminate on any basis they want in their private affairs, but not when they provide a service or product to the public, or in employment.”

                      is FALSE – and worse it is BAD LAW.

                      First, at the law currently stupidly stands, you CAN discriminate even if you offer services or products to the publice or employment.
                      But there are a few very specific ways identified by law that you can not discriminate.

                      As an example you can discriminate against short people, or people with blue eyes,
                      I do not know why you would want to, and likely if you did people would be offended, but you are legally permitted to.

                      Further what you fail to grasp is that descrimination is just a word with negative conontations that is a synonym for “choice”.

                      If you are and employer – and you have 1 job and 100 applicants – you are going to say NO 99 times.

                      Further if you have ever actually had to hire someone, you will learn quickly that:
                      You are not likely to hire the best person for the job, that you only have so much time to devote to hiring someone. You will start with 100 resumes or applications – and you will likely only interview 5 – so you have to get rid of 95 quickly. Because their handwriting is poor, or they can not spell or they just did not catch your attention, or you do not like their name, or they have a criminal record.

                      The left keeps trying to make every basis that one uses to cull the 100 aplicants into 5 people that you interview illegal – failing to grasp that in the end there is still ONLY ONE JOB – only one person is getting it.
                      If you can not discriminate against those with criminal records you MUST discriminate for some other reason.

                      Now lets talk about “illegal” discrimination. I was part of hiring for a 50 person business for 2 decades. We learned quickly that there was a pool of women who would work harder and for less money, that were very talented – because we were in a construction related business that at the time was mostly men.

                      But that posed a problem – because SOME of the clients and others we worked with were just not going to work well with women. So we hired mostly women, but had to hire a few men for specific roles.

                      Nothing was ever said about this – we clearly had lots of women, so it looked like we were discriminating FOR women. But certain positions had to be men.

                      Illegal ? Yes. Is there anything you can do about it ? No.
                      In addition to women we also hired a fairly large number of gay men – but mostly NOT for positions that involved dealing with contractors – for the same reason that we did not put women in those positions.

                      We never discrimated against racial minorities – we had no professional applications from racial minorities in 20 years. We hired them for secretaries or non-professional positions.

                      Regardless, the point is that hiring is just another name for discrimination, like it or not.
                      And you can try to criminalise the “reasons” that people make decisions – but you can not actually succeed.

                      If you can not define perfect objective criteria for how something must be done, then you can not draft laws that are not harmful that try to judge the subjective criteria that people use.

                    2. I should have made more clear that by “discrimination” I meant “illegal discriminarion”. Mea culpa.
                      If you skirted employment laws and got away with it that has nothing to do with the legitimacy of said laws, it just means you were lucky.
                      People get away with breaking laws every day, that still doesn’t make the laws illegitimate.
                      Laws against discrimination on the basis of race in employment, housing, education etc. have withstood every legal challenge for over 60 years now and that is highly unlikely to change anytime soon.

                    3. “I should have made more clear that by “discrimination” I meant “illegal discriminarion”. Mea culpa.”

                      I understood what you meant. I do not mean the same thing.

                      Our laws regarding private discrimination are WRONG.

                      They are efforts to legislate positive morality and that violates the rule of law.

                      It is outside the legitimate role of government to legislate positive morality.

                      It is also impossible to actually do effectively.

                      “If you skirted employment laws and got away with it that has nothing to do with the legitimacy of said laws, it just means you were lucky.
                      People get away with breaking laws every day, that still doesn’t make the laws illegitimate.”

                      The laws do not work. Most anyone in business having much to do with hiring rapidly learns not to talk about certain factors that effect hiring choices.

                      You can not actually prevent people from discriminating. You can only punish them for being stupid and admitting it.

                      I would further note that all “illegal discrimination” is not even always morally wrong.

                      As an example it is illegal to take into consideration the health of someone you are hiring. Or to use it as a factor for firing or laying people off. Most employers I know today go to alot of trouble to not “know” about the health of their employees. We no longer get records from insurance companies – which I think is a good thing.

                      But if my health insurance costs are high – that is not only a problem for the employer – but for most small employers that is also a problem for their employees.

                      In that instance – when hiring, I am not going to ask about health. I am not going to talk about health.
                      But I am likely to strike any candidates I think we raise our healthcare costs and favor those who would bring them down. If I have to lay people off – I am not going to lay off all the least healthy people,
                      myriads of factors will effect who gets laid off. But I can assure you that no matter how hard I try not to. health will factor in.

                      And that is NOT wrong. what is desireable is not that hiring and firing decisions are blind to health, but that they are balanced with respect to it.
                      If I actually followed the law and ended up with an unhealthy staff and went bankrupt – not only am I harmed but so are my employees.

                      You can not prevent private discrimination, you can only prevent people from talking about it out loud.

                      Doing so likely makes it worse.

                      Many things have changed over my life time. When I started in business I did not know anyone who was gay. I could not have descrimnated if I tried – actually several people I knew then were gay – but I did not know it. Today I could swear 50% of the people I know are gay.
                      I could be wrong, but I do not think that government has had much to do with our changes in attitude regarding sexual orientation. I think the law has lagged behind people on that issue.

                      “Laws against discrimination on the basis of race in employment, housing, education etc. have withstood every legal challenge for over 60 years now and that is highly unlikely to change anytime soon.”

                      Slavery withstood every legal challenge in this country for nearly a century. That did not make the law right.

                      We have plenty of bad laws. The fact that some are old and have withstood legal challenges does not make them good.

                      Further as noted earlier – there is a huge difference between a law is improper and should not exist, and the behavior that it seeks to constrain is acceptable.

                      It is not the role of government or the law to make us “good people” that is our own responsibilty or of our institutions outside of government such as churches.

                      A law can have a good purpose and still be a bad law.
                      A law can punish things that people should not do – and still be a bad law.

              2. The Constitution provides freedom and obligates people to adapt to its outcomes. Freedom does not adapt to people; dictatorship does.

                1. Then we can both get behind laws that maximize Black Americans ability to fully participate in society and not be discriminated against on account of their race.

                  1. Should car insurance companies be able to discriminate males boys (if your even allowed to call them that anymore) vs female girls? Also age?

                    1. Yes.

                      They evaluate their risk the same way any type of insurance company does and bill their policies accordingly.

                    2. Competitive free enterprise is always the solution.

                      Free enterprises are shaped and formed by competition, not government. If a business discriminates, its competitors will garner the estranged customers. The people as consumers cause the success or failure of businesses.

                      People must adapt to the outcomes of freedom. Freedom does not adapt to people; dictatorship does.

                      Slavery, for example, should have been eliminated not by war but by people as consumers and investors through promotions, boycotts, divestiture, etc. ‘Crazy Abe” Lincoln was a brutal psycho who needlessly and illegally killed 1 million Americans.

                      Government is limited by the Constitution, not the People.

                      The 9th Amendment assures any and all conceivable natural and God-given rights and freedoms which were not enumerated elsewhere in the Constitution and Bill of Rights.

    1. A government that confiscates private property (i.e. the possession and the disposition thereof) is a tyrannical and oppressive dictatorship. It is unconstitutional for the government to order assembly, employment or matriculation.

      The Constitution provides freedom and obligates people to adapt to its outcomes. Freedom does not adapt to people; dictatorship does.

      “Non-Discrimination” and “Fair Housing” laws aren’t “wrong,” they are unconstitutional and precluded by the right to private property – as are “Affirmative Action Privilege,” quotas, forced busing, social services, etc. Communistic “social engineering” is in diametric opposition to the freedoms and rights provided by the Constitution.

      Rights and freedoms of the individual are not limited (i.e. 9th Amendment), the government is.

      The singular historic American failure has been the Supreme Court which has “interpreted” and “legislated from the bench” while not “voiding all acts contrary to the manifest tenor of the Constitution…”
      _____________________________________________________

      James Madison defined “private property” as

      “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

      “…IN EXCLUSION OF EVERY OTHER INDIVIDUAL.”
      ________________________________________

      Alexander Hamilton –

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      “…MANIFEST TENOR…”

  8. I feel that I do have the right to say no to someone. However if you consistently do things in a discriminatory or prejudicial manner, I think it will catch up with you eventually. The courtroom of public opinion is always in session. This is in the private sector. In the public sector I would go along with the current status. You can’t discriminate against any tax paying citizens.

  9. You’re expecting liberals to be consistent, principled, and fair. What you’re forgetting is that liberals have no procedural principles, just improvisations which provide justifications for getting what they want. They don’t have substantive principles either, merely biases and appetites.

      1. No, I’m observing the passing scene, which you prefer to not acknowledge.

        You’re obviously senile and cannot remember anything you’ve read. You still keep posting.

        1. NII possibly also authored the following comment which is somewhat true but nonetheless classic NII

          re: blacks playing loud music…

          “It is part of their “look at me” mentality right along with their bling, rims, grillz, saggin (which is niggas spelled backazzwards) pants, their hoopties with blasting crap “music”, etc.

          Nigger “brains” only allow them to be “visual and verbal” as they do not possess the ability to be “abstract and conceptual” which is a skill that develops in human at approximately ten years old. For this reason they strive for attention the only way they know how”

          http://chimpmania.com/forum/showthread.php?12935-Why-are-niggers-so-loud

          1. NII possibly also authored the following comment which is somewhat true but nonetheless classic NII

            1. I didn’t.

            2. My general perspective is not difficult to figure out. Most liberals can’t figure it out because they think in prefabricated talking points, and the hoariest of them is to point and shriek ‘raaaaacist’.

      2. And you are obviously being charged internet usage by the word. NII routinely supports his/her opinions with factual data to support them. Try making an argument, just one time, with facts to counter a post you disagree with, Good luck.

  10. You are correct that there has been a collision brewing for decades.
    You are also likely correct about the way the court will squirm out of it.

    But you are wrong overall.

    It is not about religion.
    It is not about free speach.
    It is about freedom.

    You were correct that freedom and equality are inherently antipodal.

    One is real – the other is not. We are equal in only one way – we all have equal rights and are entitled to equal protection of those rights by government.

    That is it. Outside of government we are free. If we are bigotted – the only justifiable remedy for that is the displeasure of the rest of us.

    If the bar wishes to bar people wearing MAGA hats – it can. If it wishes to bar gays – it can, if it wishes to bar blacks – it can.

    While we have bal laws that pretend that freedom does not include the freedom to be bigoted, those laws accomplish little beyond driving bigotry below the surface – and possibly fueling it.

    Bad conduct – bigotted conduct ultimate will work itself out on its own when society is ready.

    There are not too many places in the country where Phillips can discriminate against Gays and remain in business.

    Conversely while Much of NYC can probably get away with discriminating against Trump supporters, that ability dies at the ballot box.

    I do not know what is coming in November – but I think Democrats should be far more concerned then they are. The generic ballot is nearly even, and closing – and Democrats normally need a 4 point advantage to win the house.

    Trump’s approval is up, Muellers is down. Democrats is going down.

    DEmocrats have an impossible problem with their own base – as noted public support of Mueller and the Mueller investigation is dying rapidly. Just over 1/3 of people support impeachment, But nearly 3/4 of democrats do.

    Democrats have made the November Election about Trump – 2 months ago Ryan was telling republicans to deal with the issues and avoid Trump. Today a rapidly growing number of republican candidates – AND Ryan are embracing Trump.

    I can not seem to get through to you that, your hatred causes a backlash.

    Further this is only PARTLY About Trump. Trump was the candidate elected because of all republicans he took the strongest stand against the PC snowflake intolerant left – not because he was a good person – but because the left was so bad, and the high level of hatred by the left is driving a massive body of counter hatred. I believe it is Salena Zito who before and after the election went out into flyover country to find out what was driving Trump voters. She keeps returning. She continues to sound the alarm to the left – nothing there has changed. If anything they like Trump better today that in Nov, 2016.

    This is going to be a bizarre election. Democrats have done quite well for several months – but ONLY when they run DINO’s Rep. Lamb had to become everything short of a republican to win against a weak candidate by a few hundred votes, it a district that voted for Trump – but has been a democratic strong hold until recently.

    Democrats are deeply divided. More than half want 2016 to be a referendum on Trump. More than half want to openly advocate for Impeachment. Pelosi – far from my favorite person is trying to cool that talk.
    Because the made that mistake before with Bush and lost a winnable election as a result.

    The more you talk about Trump and impeachment the more you anger Trump voters.

    I do not think you understand that Trump tapped a raw nerve in the country – and that got him elected.
    It is a nerve the left created, and you keep dancing on it – thinking somehow that will make it better.

    An awful lot of core Trump voters are people who did not vote before – or who voted democrat.
    And these people are happy with Trump, and by all appearances they are going to vote.

    The anti-Trump left continues to remain fired up – and that surprises me. I would have thought this level of anger would burn out by now.
    But even so – they are alienating the rest of the country.

    You want to divide the country in to angels and evil Trump lovers.

    But that is not how it divides. you lost the middle in 2016 and you appear to be preparing to lose it again in 2018.

  11. Turley implicates the left for their violations of free speech, what does he have to say about “Voter Suppression,” one of the biggest violations of free speech of all?

    1. Are you talking about requiring a government ID to vote – something that has super majority support in just about every single demographic group in the country ?

      Regardless, you are talking Myths. No one prevents anyone from voting.
      Further you are making a ludicrously stupid argument.

      Lets assume that Republicans are the majority and are engaged in “voter supression” – the hypothetically that were the case – the only change would be the margin by which democrats lose.

      Lets say Republicans are NOT the majority – so how is it that they are suppressing the majority ?
      Magic ?

      1. Let’s imagine for a moment I weren’t talking about ID (which is only a small part). Let’s say it was just Gerrymandering? Isn’t the whole point to negate speech?

        1. Enigma:
          Gerrymandering, as currently practiced, is racial favoritism. Baker v. Carr started this mess of racial gerrymandering with the one man-one vote nonsense. In the past, similarly situated geographic communities with common interests enjoyed representation. The push to make districts out of disparate areas had everything to do with preserving racial representation which is a patronizing way of composing a democracy. If race doesn’t matter (as it shouldn’t) why do we have to preserve racial representation, If you want to get rid of gerrymandering that’s fine with me.

          1. “…one man-one vote nonsense.”

            Hear, hear!

            Ben Franklin, 1789, we gave you “…a republic, if you can keep it.”

            The American Founders did not establish “mob” rule, they established “representative” governance through criteria.

            Franklin’s was a restricted-vote republic, with the full understanding that the “poor” (who would “sell” their votes), wives and children were well and appropriately represented. Democracy was not expanded by a one man-one vote democrazy, it was diluted and abated.

            In Franklin’s republic the requirements to vote were generally and approximately that a citizen was European, male, 21 with 50 lbs. Sterling or 50 acres.

          2. Mespo – We disagree in some respects, I believe Gerrymandering as currently practiced is racial packing. It places large numbers of minorities in strangely drawn districts which all but guarantees some minority representation, it has the competing effect of all but guaranteeing only majority candidates or in this case Republican candidates can win almost all the rest. You end up with states where the ratio of Republicans to Democrats may be almost even yet Congressional Seats, and State Districts are heavily skewed toward Republicans, giving them control of state governments that may differ from overall statewide votes. We can dislike different aspects of it and still agree it disrupts free speech unless you think voting isn’t speech.

            1. but guaranteeing only majority candidates or in this case Republican candidates can win almost all the rest.

              It does nothing of the kind, unless you fancy winning 150 non-black seats amounts to ‘almost none’.

              The Democratic Party has won a plurality of the popular vote in elections to the House of Representatives 4x in the last 25 years. Twice they won a majority in the House and twice they had only the slimmest popular plurality. They lose elections and have been losing them for 25 years because their supporters are less efficiently distributed. They’ve lost the House under three different sets of district maps. The deviation from popular distributions as we speak is smaller than it was when Democrats won control of the House in 2008 or when they won control in 1984.

              1. I’ll allow what I said was poorly worded and ripe for misunderstanding. There is a range of types of activity varying greatly by state. In Florida where I live, there are some “guaranteed” minority seats but so few of them, there is no power associated with them (talking about state offices in particular). Many areas are not designed to reach a specific racial outcome and some are even competitive. The overall outcome is that Republicans dominate both chambers of the state legislature despite the state casting more votes for Democrats in two of the last three Presidential elections, each of which ended up with a highly skewed Republican advantage.

                The “less efficinntly distributed” statement of your seems to state that votes in some cases don’t really matter as much as how they’re treated. If you agree with SCOTUS that money is speech, the rationale for Citizen’s United. Surely votes are speech as well?

                1. No, “less efficiently distributed” means that Democrats rack up 95% majorities in core cities while collaring 45% in the suburbs. To win a single-member district contest under a regime of first-past-the-post, it doesn’t matter if your plurality is 2% or 20%. Either plurality gets you the seat. The only way around this for Democrats is to carve up core cities into slivers. (That’s called ‘gerrymandering’).

                  1. Like I said there is no universally accepted objective means to decide districts.

                    As I noted – districting is essentially a question of fairness – and even though every toddler is certain they know what fair is almost every parent understands the world is not and can not be fair, because there is no objective standard for fairness.

                    Is the objective to get “voter efficiency” – why ? If I am an urban democrat – aren’t I entitled to not only a democrat but also an urban one to represent me ?

                    Lets just say that instead of drawing congressional districts we assign “districts” virtually – by lottery. Each person in the state gets assigned a district number. If we randomize the assignments we will closely approximate the “voter efficiency” that is being argued before SCOTUS.

                    Democrats will likely win the majority of the house.
                    But these will NOT be the same democratic candidates that would win in a geographical assignment.

                    Rural voters would get less attention to rural interests, urban voters would get less attention to urban issues. Candidates would try to represent the needs of this random collection of people that elected them.

                    I am not serious about my hypothetical.

                    But I am very serious that every single means of assigning districts has consequences.
                    Fixing what is called Gerrymandering will have other consequences too.
                    While the models that democrats are pushing will not inherently homogenize interests, it WILL dimmish the teritorial values reflected by each representative.

                    This is also why direct popular election of the president will radically alter campaigns, and candidates and the policies that Presidents pursue.

                    Applying a mathematical process to something appeals to us as somehow impartial or neutral.
                    It MIGHT be impartial, but it is not in anyway neutral.

                    1. Enigma, the young man with the hideously dyed hair explained next-to-nothing for public consumption about any mechanism the nefarious Mr. Bannon might have employed to ‘suppress’ black voters. Maybe you fancy that Bannon has a supersecret mechanism which will be broadcasting thoughts into Geneva Jefferson’s head so she’s too blue to go to the polls.

                    2. Yes, the young man’s hair is ugly, yet he is testifying before the Senate under oath about the existence of something you don’t believe exists.
                      No, Bannon doesn’t have a supersecret mechanism, he was availing himself of an offering of a firm that did the heavy lifting for the Trump Campaign that did similar work in the UK. Cambridge Analytica is now being investigated by the FBI, no need to speculate, just wait and see.

                    3. “:Yes, the young man’s hair is ugly, yet he is testifying before the Senate under oath about the existence of something you don’t believe exists.
                      No, Bannon doesn’t have a supersecret mechanism, he was availing himself of an offering of a firm that did the heavy lifting for the Trump Campaign that did similar work in the UK. Cambridge Analytica is now being investigated by the FBI, no need to speculate, just wait and see.”

                      He can testify under oath to the existance of flying elephants that does not make them so.

                      AGAIN what is the miraculous way that Bannon and CA have found to prevent people from voting ?

                      If actual force was actually used – it is already a crime and should be prosecuted.

                      The entirety of elections is to use speech to get as many voters as possible to vote FOR your candidate and as few as possible to vote for your opponent.

                      If you wish to call the latter voter supression – it is legal and quite proper.

                      You are seeking to find a twisted backdoor to criminalizing political speach that you do not like,

                      The entire concept of “voter supression” as argued by the left, is nothing more than the other side was more persuasive than we were and therefore they must have cheated.

                      It is rooted in the delustion that you are morally superior. When in fact you have the bloodiest most vile ideology that has ever existed.

                    4. So were CA and Bannon putting blacks in holes and locking them up ?

                      Did they lock them in their homes ?

                      Did they put guns to their heads ?

                      The left continues to try to reframe speech – in this case persuasion as a violent act of supression.

                      It is not.

                      What actual and illegitimate impediments to voting did CA and Bannon throw up ?

                      What tool did they use besides words ?

                      How am I supposed to understand what you mean by voter supression, as anything more than speech – persuasion ? And why am I supposed to be angered – seek to punish and criminalize speach because you do not like the result ?

                2. Get a clue – more and more people vote split ticket.
                  More and more people are not registered as democrats or republicans.

                  You can not conclude fromt he presidential vote what the house and senate vote will be.
                  Nor from the vote on years with presidential elections what the vote on off years will be.

                  You keep magically trying to claim there is a correct outcome. There is not.

                  Out country was not created as a direct democracy – deliberately – democracy is one of the most vile forms of government there is.

                  If you are going to claim that results must perfectly match the results of a direct democracy – you are wrong because that is a bad way to form a government, and the argument is over.

                  If you accept that we are not a direct democracy – then you have ceded that there is no direct correlation between the overall popular vote and national alotment of elected offices.

                  The left’s current argument is “voter efficiency” – I have no complaint about that argument EXCEPT, the presumption that it is THE CORRECT means of allocating districts.

                  It is no more inherently correct than using a ouija board. Nothing is.

                  Further the “voter efficiency” argument is no more or less politically corrupt than any other means.

                  Adding math or statistics to something does not make it objective or correct,
                  It just makes it mathematical.

                  I would further note that the entire structure of our government was deliberately intended to empower minorities to be able to throw sand in the gears.

                  Our government is designed to have more power than under the articles of confederation, but to make it extremely hard to use.

                  That is one of the reasons I support the fillibuster, and hope the GOP does not roll it back any further.

                  The one mistake we have in our structure is that it is supposed to be very hard to excercise government power.
                  It should NOT be hard to roll it back.

              2. “The fault, dear Brutus, is not in our stars,
                But in ourselves, that we are underlings.”
                Cassius – Julius Caesar (I, ii, 140-141)

                The left needs to start looking at themselves to see the reasons for their failure, instead of constantly seeking to blame Russia or gerrymandering, or …

                Despite the “Hillary the annointed” meme, 2016 was highly likely to be a republican election.

                I do not think Obama could have won a 3rd Term.

                Though Trump had a unique and very sucessful electoral strategy that republicans are likely to repeat – targeting the rust belt and flipping 4 states that traditionally are 2-6% blue, it is likely that any other republican candidate would have won and possibly by a larger margin.

            2. Voting is an action. I never like conflating actions with speech. I think it’s intellectually dishonest. The act of voting is a right. Burning a flag is not speech; it’s a action. On balance I think gerrymandering is bad for everybody.

              1. There are ready ways to draw district maps with little exercise of discretion. However, you have to dispose of two things: the legally and practically unjustified insistence on strictly equipopulous districts (you can have a general relationship between populations and representation, but not the +/- 1% that courts have commonly insisted upon) and an end to racial contrivances. You’re only going to get from here to there with court-stripping legislation.

                1. No actually there is not.

                  Because there is no universally accepted objectively right means to do this.

                  Fundimentally we are dealing with an issue of “fairness” and if you have 10 people – there are 11 definitions of fair.

                  1. I ordinarily don’t respond to you because I think you’re an off-his-lithium head case.

                    If disagreeing was a sign of a lithium deficiency, then we’d all better stock up.

              2. mespo – This is an interesting article. Is suggests that spending in an election is recognized as speech and offered every protection as such by the courts. Registration and actual voting are not offered the same degree of protection. I submit it has to do with power and who the courts ultimately represent, not the people but the rich and powerful.

                https://ylpr.yale.edu/voting-speech

                    1. Courts are beholden to the interests of order. Businesses and institutions are instruments of societal order, hence they get the call from the judge most times. Nothing new there since the time of Socrates.

                    2. Courts are more often beholden to the interests of the rich, which often align with order but a certain type that benefits them. Police departments were designed to protect the property of the rich and still perform that function, they both protect and serve their masters, also not a new concept.

                1. Most expressions aren’t actions unless you want to delve into the kinesiology of making sounds or writing. By and large speech is expression apart from action. Action, of course, can be without speech or expression. Most speech and some forms of action are constitutionally protected. My usual example to show the difference is to ask whether you can throw blood on the Jefferson Memorial and claim, when charged with vandalism, that you are merely exercising free speech? What do you think?

                  1. In your example, throwing blood on the Jefferson Memorial would be vandalism, possibly still speech but not likely free and not protected. Voting I believe is speech, it is how the people say who/what they want in government and what direction they want their district/county/state/country to go. Anything that disrupts/dilutes/excludes that speech is a violation.

                    1. That’s avoiding the question. We all know the legalities of each example, the point is what is the logical distinction. If free speech is action, then both should be constitutionally protected.

                    2. You earlier said voting is an action and not speech. I disagree. All speech is not protected, voting should be but often is not. I never made a case that actions are constitutionally protected, most are not. Freedom of speech includes in my mind the right to participate in the election process that determines our governance. The rights can be lost via some types of criminal activity, for example, they should never be taken simply to win elections.

                    3. “All speech is not protected,”
                      The current state of the law has nearly all speach protected.
                      But all speach should be protected.
                      Somethings combine speech and action.
                      The speech portion is protected,
                      The action portion may not be.

                      “voting should be but often is not.”
                      Expressing your opinion on a candidate is speech and protected.
                      Casting a vote is an action. It is also not a right, though it is something we value highly.

                      “I never made a case that actions are constitutionally protected, most are not.”
                      Actually most are – read the 9th and 10th amendments.
                      But ignoring the constitution.

                      You have the natural right to do whatever you please – that includes murder people.
                      The social contract – the basis for government, is our agreement to cede the right to initiate force against others in return for government punishing those who initiate force against us.

                      A right does not mean you are able to do something. It means you may, not that you can.

                      “Freedom of speech includes in my mind the right to participate in the election process that determines our governance.”
                      We are not debating what is in your mind.
                      Free speech is the right to speak. About elections, about bohl wevils, about whatever you want.
                      Voting is not a right.

                      “The rights can be lost via some types of criminal activity,”
                      A crime is the initiation of force against another.
                      It is a violation of the most fundimental right of others.
                      It is a violation that is punished by violating your rights.
                      Such as your right to liberty.

                      “for example, they should never be taken simply to win elections.”
                      Whatever does this mean ?

                      If you alter or destroy ballots cast by others, that is a crime and you can be punished.

                      If you put a gun to a voters head – that would be a crime.

                      I am hard pressed to think of anything else you can do in an election that is not persuasion – speech and therefore not a crime.

                      A major part of the holy war we are in the midst of is because the losers in the last election are upset because they felt entitled to win, and having failed to persaude the requite voters they are convinced that something evil must have changed the outcome.

                      Though the actual claims they make are specious – equally important is that even if true they are wrong.

                      If Putin spent a Trillion dollars on the US election and manage to persuade enough voters to assure victory for his favored candidate – that is still persuasion. Voters still entered the voting booth free to chose as they pleased.

                      BTW Clinton outspent Trump nearly 2:1 so money is not nearly as effective as the left claims.

                      More interesting is how piddling the claimed amounts of Russian moneys were

                      If that tiny amount of facebook adds could tip the election – why didn’t Clinton think of that ?
                      Of course she did.

                      Clinton spent $20 for each vote she received.
                      But spending is not actually quite that simple.
                      Clinton spent very little for CA and NY votes, but spent thousands each for PA and OH votes.

                      By that math the Russians might have bought Trump 7 votes.
                      That is if you buy the nonsense that money actually translates to votes.

                      Separately – have you actually seen the Russian adds ?
                      Do you really think so little of Trump voters than you think the Stupid Russian Adds worked ?

                    4. “The first is illegal ”
                      Many things are ilegal that should not be.
                      Somethings are legal that should be.

                      The question is not what IS legal.
                      The question is what SHOULD be legal and why. It is a philosophical question not a legal one.

                      “and violates the speech of others by diluting it.”
                      No such thing.

                      Your right to speak is not right to be listened to. No right creates a positive duty in another.

                      “The second is simply free speech and should be permitted.”
                      Everything is permitted – except those few things that are denied.
                      Rights are by definition something you do not need permission to do.

              3. “On balance I think gerrymandering is bad for everybody.”

                On balance gerry mandering is inconsequenctial and we are making much ado about nothing. Worse still we are further politicizing our courts which is a huge mistake.

                Finally – there is absoltuely no universally agreed on objectively right way to create congressional districts.
                Nor is there much in the way of criteria to conclude that one scheme is objectively wrong.

                You are deluding yourself if you believe the process is not going to be political.

                We get to decide where the politics and related corruption occurs – not THAT it occurs.
                I do not want political corruption in our courts. and that is what you are going to get.

            3. The frothing over Gerrymandering is logical idiocy.

              Outside of a few left wing academic’s people actually capable of doing real good modeling have confirmed what should be obvious from the start – gerrymandering of the form the left is currently ranting does not work and is very dangerous.

              No properly done model has found more than a +4 gain in seats for either party nations wide.

              There are two basic forms of gerry mandering.

              1). To create a secure seat for an incumbent. This has historically been by FAR the most common form of gerrymandering. While politically corrupt – it comes at the EXPENSE of the party. Inherently to make a seat for one party safer you either have to make a seat for the other party safer or weaken another of your own.

              2) To creatingly leverage a small majority into a larger one. This inherently makes all seats LESS secure.
              If as an example a party with a 1% advantage leveraged that advantage and creative redistricting to give itself a 1% partisan advantage in every district – then a 1% swing in voter preference would flip the state from entirely red to entirely blue.

              3). There is no objectively correct way to allocate congressional districts.
              I just noted that you could gerrymander every district to exactly reflect the state wide voter distribtion – in theory giving the majority party 100% of all seats. There is nothing objectively unreasonable about that. It is essentially how we elect senators, and it is how the left wants us to elect presidents.

              In fact no matter how politically corrupt some means of allocating seats might seem, it will always be arguably as correct as any other means because there is no objectively correct way to do so.

              4). the requirement for minority majority districts is the consequence of bad supreme court decisions.

              Nationwide congressional seats are and will continue to favor republicans, for the foreseable future even though democrats are barely in the majority because:

              People have naturally gerrymandered themselves. Those on the left concentrate to extremely high extents in the cities. Guaranteeing that the large majority of districts outside the city will be republican.
              If you want to change that the left must move out of the cities.

              That has actually been happening – except that as people move out of the city they also tend to become more conservative.
              We become more conservative as we age.
              We become more conservative when we enter the workforce.
              We become more conservative when we marry.
              We become more conservative when we have kids.
              We become more conservative when we buy a house.

              Just as their are demographic trends that favor the left, there are plenty that favor the right too.

              5). The process of creating congressional districts is inherently politically corrupt.
              That is truly unavoidable. There is no objectively right way to do it.
              The courts should stay out of it. Wading in merely corrupts the courts.

            4. There are currently 33 republican governours, and 16 democrats.
              Based on that alone you would expect 66 republican senators and 32 democrats.
              Though there might be some minor adjustments, in the long run something close to that is where we are headed. The reason there are NOT 66 republican senators is that the great sorting is only recently complete and the south has not entirely flipped republican yet.

              WE have 26 states that are republican controlled from top to bottom – again that would predict a MINIMUM of 52 republican senators.
              We only have 8 states that are entirely controlled by democrats.

              Based on both of the above it would also be reasonable to expect that Republicans would have the majority in the house, they by a smaller margin than the senate.

              There are alot of other factors.

              But the reality is that the makeup of state and federal legislatures is driven much more by the concentration of democrats in a few small areas than anything else.

              Gerrymandering is not something we should drag the courts into.

                1. SCOTUS has tended to look the other way for the very reasons I have argued.

                  They do not have the authority to define the criteria for determining congressional districts.
                  To invalidate them they must find a constitutional violation and there is none.

                  And they are wise enough to know this is a rabbit hole that will even further politicize the court if they go down.

                  There is no universally accepted Objective means of determining congressional districts, there is therefore no such thing as gerrymandering.

    2. Turley implicates the left for their violations of free speech, what does he have to say about “Voter Suppression,” one of the biggest violations of free speech of all?

      1. It doesn’t exist.

      2. It would not be a violation of ‘free speech’ if it did exist.

      1. DSS – I would disagree. Voter suppression is a violation of freedom of speech. You do have to agree, you just have to fight to the death to defend my opinion. 😉

      2. Nutchacha – 1. The courts at every level have found it does exist.
        2. If their speech is not counted because of things like Gerrymandering. I can’t think of a bigger violation.

        1. It does not exist. The courts are engaged in lawfare and defining ‘voter suppression’ as anything which inhibits voting by highly disorganized people and by ACORN militants posing as absentee voters.

            1. The Mueller investigation is a pantomime. No one can sate what is the crime they are investigating.

                1. No, you can’t, because the prosecutor can’t. Which is why he’s rummaging around charging people with process crimes, prosecuting Paul Manafort even though Manafort’s supposed crimes are not within the special prosecutor’s known mandate, and bringing charges against Russian internet trolls they aren’t prepared to argue in court.

                  1. A Judge just decided the pursuit of Manafort is well within the Special Counsel’s mandate. You only need wait a little longer to see “real crimes” being charged. If you can’t name any based on the direction of the investigation, you either have a limited imagination or just aren’t trying.

                    1. “A Judge just decided the pursuit of Manafort is well within the Special Counsel’s mandate.”

                      No, she actually decided that a lowly federal circuit judge is not prepared to decide a serious constitutional issue at odds with a special counsel.

                      There was an excellent article in WSJ a few days ago by a constitutional lawyer and former clerk of Scalia’s. Many have cited Scalias dissent as a reason the SC law is unconstitutional.
                      But the clerk noted that even by the majority oppinion in that case the SC law is STILL unconstitutional.

                      There are two classes of federal employees – those that must be appointed by the president and confirmed by the senate – and inferior employees.
                      The distinction is based on whether that employee can independently execute powers given to the executive by the constitution. If that is true – that position much be appointed by the president and confirmed by the senate.

                      Mueller was not appointed by the president and confirmed by the senate.
                      He therefore has no more power than an ordinary FBI agent.
                      He can investigate, but he can not subpeona, empannel a grand jury, indict, charge or prosecute.

                      This is a constitutional issue – the SC law can not give Mueller power that the constitution reserves only to appointed positions.

                      This is also an area of constitutional law that has been litigated for two centuries.

                      Cordray as an example resigned rather than have Trump fire him. Because though Congress made the head of the CPFB independent, SCOTUS said the constitution has no provision for appointees who can not be fired by the president.

                      ” You only need wait a little longer to see “real crimes” being charged. If you can’t name any based on the direction of the investigation, you either have a limited imagination or just aren’t trying.”

                      We have been told that from the start. Yet there is still no crime that defines this investigation.

                      My imagination is fine – but the constitution does not permit the government to investigate people for any crime they can IMAGINE. Or to investigate people in search of crimes.

                      The SC law requires the SC investigate a SPECIFIC crime, The fundimental question is NOT does he have the authority to investigate crimes he stumbles on when investigating the initial alleged crime.

                      It is whether there is an intial alleged crime – absent that you ARE engaged in a SOVIET style witch hunt.

                      Mueller and Rosenstein are operating outside the law and the constitution.

                      That should not surprise – as that has been the case since the begining.

                2. “I could name several offhand, it is guilt that must be determined.”

                  No actually you can not.

                  One of the major problems is this has followed the Leventi Berria model – show me the man and I will show you the crime.

                  We investigate crimes – not people.
                  We allow prosecutors to prosecute crimes that are discovered incidental to the initial investigation.

                  But we START with an actual crime. Further even the investigation of that crime is severely limited until PROBABLE CAUSE is established.

                  We still do not have an actual crime that was being investigated.
                  When Mueller was appointed – 9 months later – Rosenstein was STILL unable to identify the crime Mueller was investigating – something he is required to do by law.

                  Mueller was not appointed to investigate Manafort’s Ukrainian actions a decade or more ago.
                  He was not appointed to investigate the National Security Advisors legal conversations with the Russian ambassador.

                  He was not appointed to investigate the legal NDA’s crafted by Trump’s lawyer.

                  Aparently 2 of the three russian companies that he indicted can not have committed the crimes alleged – because they did not exist at the time those crimes were committed.

                  And the third has done something Mueller did not anticipate – it has chose to defend itself in the US courts.
                  It is telling Mueller – put up or shut up.

                  Even with respect to the allegations against the 13 other russians – are you saying that John Oliver is a criminal ? He is not an american, and he has “interfered” in the US election – as has the the Guardian, Angela Merkel, ….

                  Mueller and the left might get a lesson in natural rights and free speech – as well as the fact that the US does not own the internet or have global jurisdiction.

                  Whether you find a law that says otherwise or not, you can not criminalize the acts of other to persuade.
                  Doing so is both wrong, a violation of their natural rights , outside of the scope and power of US law. and unenforceable.

                  I do not beleive that Russia actions in this election were of consequence.

                  But lets actually assume they were.

                  Lets say that Russia spent a billion dollars in successful efforts to persuade americans to voter for Trump.

                  Were those voters FORCED to voter for Trump ?
                  Are you really saying that you are prepared to go to war with the 2nd largest nuclear power in the world – because they successfully PERSUADED people differently than you would prefer ?

                  If you can criminalize the persuasion of Russians – why can;t you criminalize the persuasion of others ??

                  Can we say – the wealthy can not attempt to persuade people in out elections ?
                  Or the poor ? Or corporations ? Or churches ? or Unions ?

                  I can nto stop you from making stupid laws – but at the core of this there is only ONE possible crime that would truly entangle the trump campaign.

                  And that is if the campaign provided before the fact assistance to Russia in hacking the DNC.

                  Given that there is at best a 50% chance the DNC emails are the product of a hack rather than a leak, and an even smaller chance that Russia was the hacker, and no chance that Russia and Trump worked together at all – much less prior to the hacking.

                  You are pretty much DOA.

                  As stated before – you have no crime.

                  Mueller has not been investigating a crime. He has been investigating PERSONS, seeking to find a crime.

                  That is not only unconstitutional, it is positively SOVIET. It is the left that is channeling Russia.

            2. Do you have any actual evidence of Trump/Russia collusion ?

              If not then Mueller is a “witchhunt”. There are separate issues with Mueller – that is though we have been fighting over the proper way to have an independent investigation since Nixon, the fact is the SC law is quite obviously unconstitutional. The constitution does not allow for any member of the executive with power delegated from the president who is not appointed by the president and confirmed by the senate.
              I am surprised this was not thought of when the SC law was passed. You can have an SC – but they can not convene a grand jury or indict anyone or charge anyone or any of the other things that only an appointed and confirmed person can do.

              Starr was an IC – I am pretty sure he was structurally part of congress. While there were problems with that, it was superior to this.

              The fundimental problem with Mueller is that he is not truly answerable to anyone.
              That is not constitutionally allowed.

              There is the separate problem that Rosenstein violated the SC law in his mandate for Mueller.
              The SC law authorizes the appointment of the SC to investigate a crime.
              Trump/Russia collusion is not a crime. Rosenstein gave Mueller a mandate for a counter intelligence investigation. There is no provision (because there is no need) for that in the law.

              The only current constitutional means of investigating a president is by congress.

              As to actual collusion – no evidence of any has been found at all thus far.
              A bunch of process crimes – most of which are highly dubious and Mueller is likely to lose on not withstanding.

              Finally, you have an ever growing mess at the start of this.

              It is increasingly evident that the Steele Dossier is at the bottom of absolutely everything.
              It formed the based for the assorted warrants, for the ICA. Nothing in this entire investigation is not rooted in the Steele Dossier.

              That said we are starting to see clues that there is a layer below the Steele Dossier.
              There is increasing evidence that the Obama administration started a covert operation off books in CIA./FBI in very early 2016. That mission false flagged Papadoulis and Page.

              This is not proven yet but the evidence is increasing. This means that even what little you have is actually manufactured.

              I would say that if this proves true and that is likely it would be “worse than watergate”
              But this mess is already “worse than watergate”.

              At the bare minimum one political party manipulated the FBI/DOJ into targeting their political opponent.

              Nixon TRIED to do that and failed, and that is why he set up the plumbers.

                1. Absolute! The executive branch of the US government did exactly what Nixon tried to do and failed.
                  It used the DOJ/FBI (and IRS) as a weapon against political opponents.

                  THAT effort is the real crime of Nixon. And that is EXACTLY what was done by the obama administration in 2016.

                  I want to make something clear – this is not about Clinton, or OPO research. We can hold our noses, and wish to know less, but Clinton’s process of gathering OPO data on Trump is either legal or should be.
                  She did not get valid OPO data, but given how effective the fake stuff was I doubt Clinton cares.

                  The problem is that the DOJ/FBI/CIA/State department brought that OPO research into the government through back channels, outside the normal process and opened an investigation without validating the claims first. It was the obligation of the DOJ/FBI to treat this as nuclear and to be very careful how it proceded,

                  It never should have accepted the Steele Dossier through back channels. It should have dotted every I and crossed every T.

                  BTW Strzoks texts confirm that the Whitehouse was involved from the start and was briefed 3 times a week.

          1. I would argue differently – both parties quite actively engage in “voter supression”.

            That is precisely what negative campaigns are about – if you can not convert a voter to your candidate atleast make them disgusted enough with they own candidate to stay home.

            That is called persuasion and it is perfectly legal.

        2. Rights such as free speech belong to individuals, not groups.

          There is no special free speech rights for blacks, or democrats.
          There is only Bob’s free speech.

          While we do not lose our free speech rights when we act in groups.
          We do not transform an individual right into a right of some group identity.

  12. TURLEY RAISES DOUBLE-ISSUE HERE: ‘FREE SPEECH AND LOCAL SENTIMENTS’.

    Free Speech can vary in accordance to local sentiments. That’s human nature. Certain talk doesn’t play in certain jurisdictions. A Marxist feminist, for instance, could face hostile crowds in much of the south. Then there’s the drunk factor. Professor Turley touched on it:

    “Recently, conservative speaker Milo Yiannopoulos was forced to leave a bar in New York City after a crowd — which reportedly included Annie Shields, an editor at the Nation and a co-chair of the Bronx Democratic Socialists of America, as well as other journalists — chanted, “Nazi scum get out.”

    It was a ‘bar’ from which Yiannopoulos was driven by belligerent patrons. Milo’s tormentors were drinking. Drinking heightens local sentiments. Every sheriff understands those dynamics.

    1. “Free Speech can vary in accordance to local sentiments.”
      Absolutely wrong – both as a matter of fact and as a matter of law.

      A right – any right inherently is something that you have even when the majority oppose.

      And what is this ludicrous “drunk factor” ?
      I though we got past that stupidity.

      If you are drunk and you kill someone, or rape them – you are sill guilty of murder or rape.
      There is no pass for voluntarily incapacitating yourself.

      Sherif’s do understand the dynamics of drunks and in much of the country they prosecute the crap out of them.

    2. I’m not clear what point you’re trying to make Peter. JT is raising one point and that is to defend free speech. Threats to that freedom will come from drunks in a bar and from an elderly gathering for high tea. Local sentiments are a reflection of human nature and that is why laws preventing the infringement of rights exist and need to be enforced.

    3. Unpopular speech is exactly the speech that needs to be protected.

      “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

      Oliver Wendell Holmes

  13. We called it. The discussion years ago was that if cake bakers want the right to refuse service to Anne Coulter, then everyone has the right to refuse service.

    It’s not hypocrisy of conservatives bring a slew of lawsuits for discrimination. Rather, it’s obeying the law. If the law says that business owners cannot discriminate, then prepare for universities around the country to be sued into the Stone Age.

    1. Tne 13th amendment prohibits involuntary servitude. I have the right to kick anyone I want to out of my place of business.

      1. You should have that right, and maybe by the end of june you will have part of that right back.
        But right now you do not.

        1. No, Maddox had bad manners. The Pick Rick wasn’t a monopolistic common carrier. If he wanted to forego revenue by restricting his custom, that was his business.

            1. I’m not discussing positive law and neither was he, which should be perfectly obvious.

          1. Except that it was clearly breaking the law. He ended up closing it, if memory serves, and went on to disgrace himself in politics.

    2. The fundimental problem is the anti-discrimination laws are wrong.

      Governments role is to secure actual rights – that includes the right to make bad choices. That includes the right to discriminate (privately)

      As Turley nots we have the tools to privately punish bigots – boycott, shame, picket.
      We do not need and do not want laws.
      The issue is NOT speech. Nor is it religion. It is just freedom, including the freedom to do stupid things.

      Freedom that does nto include the right to act (or speak) in ways the majority does nto like is no freedom at all.

      1. “Non-Discrimination” and “Fair Housing” laws aren’t “wrong,” they are unconstitutional and precluded by the right to private property – as are “Affirmative Action Privilege,” quotas, forced busing, social services, etc. Communistic “social engineering” is in diametric opposition to the freedoms and rights provided by the Constitution.

        Rights and freedoms of the individual are not limited (i.e. 9th Amendment), the government is.

        The singular historic American failure has been the Supreme Court which has “interpreted” and “legislated from the bench” while not “voiding all acts contrary to the manifest tenor of the Constitution…”
        _____________________________________________________

        James Madison defined “private property” as

        “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

        “…IN EXCLUSION OF EVERY OTHER INDIVIDUAL.”
        ________________________________________

        Alexander Hamilton –

        “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        “…MANIFEST TENOR…”

    3. Universities should be sued for discriminating against conservative students, professors, and invited speakers.

      If business owners have no right to say no, then let the consequences proceed.

      This is where I am torn. I can see the concern with discrimination, and do not want to return to the days of Jim Crow. Perhaps race should be the only protected class.

      Do business owners have the right to say no? Can they be forced to do something that would sicken them? What bothers others, might not bother me. But we all have our standards. My mother is petrified of spiders. If she were a business owner, should she be forced to allow an arachnology meeting in her nonexistent cafe, complete with their spider specimens and larger than life mockups? Should Whoopie Goldberg be forced to serve Anne Coulter in her hypothetical restaurant, and bake her cupcakes with a smiley face of Anne in the middle? Should Whoopie be forced to cater a KKK permitted event? These are some extreme examples. But they illustrate that there are all sides to the argument of whether or not a business owner can say no. If they can say no, how do you prevent that right from being abused, such as the constant discrimination against conservatives on college campuses and in places of employment? What would happen in many workplaces if someone walked in wearing a MAGA hat? People are not allowed to think what they want anymore.

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