Former Speaker of the House Newt Gingrich is made a highly disturbing proposal that people who visit sites that are deemed as favoring terrorist groups. As articulated by Gingrich in his Fox News interview, the proposal would eviscerate the first amendment and leave that government in a position to regulate speech and association based on an ill-defined standard. Gingrich also attracted criticism for his proposal to test Muslims to allow for deportation of anyone who “believes in Sharia” — a proposal that would sanction peoplr for their religious and political views.
Below is my column on Sunday in the Chicago Tribune on the controversy involving Justice Ruth Bader Ginsburg. Ginsburg’s expression of “regret” over “ill-advised” statements may strike many as a bit short of an actual apology for what was facially unethical conduct. However, it was more than was required because nothing is required from a Supreme Court justice. That is the problem. Not the tirade against Trump. Not the criticism of Republicans in Congress. The real problem is that Ginsburg and her colleagues claim that the Code of Judicial Ethics is only binding on lesser jurists. Indeed, a majority of justices have been accused of ethical violations, but the Supreme Court is the only part of our government that is not subject to any enforceable code of ethics. Ginsburg’s apology should not detract attention from pressing need for reforms of our Court, including the creation of an enforceable ethical code for the justices. Once again, we have addressed only the latest manifestation of the problem on the Court rather than the underlying cause: the absence of an enforceable code of ethics for the justices. I have long advocated two primary reforms for the Court: the establishment of an enforceable code of ethics and the expansion of the Court to 19 members. What was disturbing recently during an appearance on the Washington Journal on C-Span was how many people argued against an enforceable code of ethics and just accepted that justices speak and act politically. While some people simply supported what Ginsburg had to say about Trump, others view the notion of an enforceable code of ethics as “naive” despite that fact that all other federal jurists comply with such a code. Below is the column:
I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues and even pending matters before the Court. I have been particularly critical of the late Justice Antonin Scalia and Associated Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. I have called this trend the “rise of the celebrity justice.” Now, Justice Ginsburg has started another firestorm over public comments where she joked that she would move to New Zealand if Donald Trump is elected. Canon 5 of the judicial ethical rules expressly states that judges shall not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” The problem is that the Court has long maintained that ethical codes are not enforceable against its members as opposed to every other jurist in the country. This absurd position has continued because Congress has failed to act, something that I have previously criticized. Ginsburg’s statements this week reflects the continued sense of impunity enjoyed by justices who violate the core maxim that “no man shall be the judge of his own case.” The justices are the judges of their own ethical cases and they show vividly why that is a dangerous and corrupting power.
Police in Urbana, Illinois appeared to throw well-established constitutional law to the curb with an abusive arrest of Bryton, Mellott, 22, who filmed himself burning the American flag. The Wal-Mart employee was charged with flag desecration despite two Supreme Court cases clearly saying that such an act is constitutionally protected. Now, after various experts (including myself) said that the arrest was unconstitutional, the police have dropped the charges. However, there remains the question of any discipline against the officers and supervisors involved in such a facially unconstitutional case.
We have been discussing the crackdown on free speech on college campuses as administrators punish any speech deemed insensitive or the still ill-defined category of “microaggressions.” One of the greatest concerns is the double standard showed to different speakers based on their content. The University of California at Berkeley is the most recent example of this controversy. In columns for the Daily Californian titled “Speaking Out”, “Fucking White Boys,” and “Choosing Myself Over White People”, Maggie Lam mocks and ridicules white people. A column using such language mocking people of color would instantly trigger demands for expulsion. It is not that I believe that Lam should be punished, to the contrary, I believe that it is far better to have the exchange of such views on campus than to regulate speech, particularly inconsistent regulation.
By Darren Smith, Weekend Contributor
A tradition spanning multiple generations in the United States is that a large portion of our society celebrates and shows tribute to the United States through the lighting and observance of fireworks. Yet numerous municipalities and counties impose sweeping and total bans of fireworks. Some statutes regulate the type of firework allowable, such as those having a ferocity that safety requires certified technicians. Others ban benign devices such as snakes and small fountains.
But does a complete ban on fireworks regardless of size constitute an infringement on the first amendment rights of citizens?
There could be an interesting constitutional case brewing in the Big Easy. As some know on the blog, I spent a few years in Louisiana and lived in New Orleans while teaching at Tulane Law School. The city has changed a bit after Katrina, but some of the biggest changes are social. The French Quarter always had a certain raunchy edge with strip clubs and seedy bars. Now, it is packed with tee-shirt shops and . . . tee shirt shops. Politicians have taken particular effort in cracking down on strip clubs and a new measure would likely cut the current 23 clubs to 7. That raises a serious question of the disparate treatment given adult entertainment business, a subject that we have previously discussed.