Liberty Wins the Day, Unanimously

“What’s the true test of one’s commitment to free speech? It does not come when he permits people to be free to say or publish ideas with which he agrees. Not by a long shot. The true test of one’s commitment to free speech comes when he permits others to say and publish ideas he deems offensive.”
— Walter E. Williams

From David French:

If you’re a lawyer arguing against free speech at the Supreme Court, be prepared to lose. Today the Court affirmed once again the Constitution’s strong protections against governmental viewpoint discrimination, even when the viewpoint discrimination is directed against “offensive” speech. In Matal v. Tam, the Court considered the U.S. Patent and Trademark Office’s refusal to register a trademark for a band called “The Slants” on the grounds that the name violated provisions of the Lanham Act that prohibited registering trademarks that “disparage . . . or bring into contemp[t] or disrepute” any “persons, living or dead.”

Given existing First Amendment jurisprudence, there would have been a constitutional earthquake if SCOTUS hadn’t ruled for Tam. The Court has long held that the Constitution protects all but the narrowest categories of speech. Yet time and again, governments (including colleges) have tried to regulate “offensive” speech. Time and again, SCOTUS has defended free expression. Today was no exception. Writing for a unanimous Court, Justice Alito noted that the Patent and Trademark Office was essentially arguing that “the Government has an interest in preventing speech expressing ideas that offend.” His response was decisive:

[A]s we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Quick, someone alert the snowflakes shouting down speeches on campus or rushing stages in New York. There is no constitutional exception for so-called “hate speech.” Indeed, governments are under an obligation to protect controversial expression. Every justice agrees.

The ruling is worth celebrating, but when law and culture diverge, culture tends to win. The law protects free speech as strongly as it ever has. The culture, however, is growing increasingly intolerant – subjecting dissenters to shout-downs, reprisals, boycotts, shame campaigns, and disruptions. Some of this conduct is legal (boycotts and public shaming), some isn’t (shout-downs, riots, and disruptions), but all of it adds up to a society that increasingly views free speech as a dangerous threat, and not as one of our constitutional republic’s most vital assets. Liberty is winning the important judicial battles, but it may well lose the all-important cultural war.

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Trump Wins!

From David French:

I have never been more wrong about anything in my life than I’ve been in my assessment of Donald Trump’s political prospects. I discounted him in the primary, and I was discounting him in the general election all the way until about 9:30 p.m. on election night. He is now my president-elect and the future commander-in-chief of the most powerful military the world has ever seen. I pray earnestly and unambiguously that God may bless him, grant him wisdom, and open his ears to wise counsel. I pray earnestly and unambiguously that I end up being just as wrong about his character and capabilities as I was about his political prospects. I want him to be good, to be wise, and to be worthy of the Oval Office.

At the same time that I’ve been Never Trump, I have also been Never Hillary. There is a measure of real justice in the America’s rejection of Hillary Clinton. The electorate has directly and intentionally rebuked her corruption, her double standards, and her arrogance. This election was less about the love of Trump (though many millions do certainly love him) than it was about rejecting the colossal hubris of the progressive establishment. This is a good thing, a very good thing indeed.

Moreover, with the GOP retaining the House and Senate, there are many, many good and principled conservatives returning to Washington. They have the opportunity to right an enormous number of statutory and regulatory wrongs. This victory was not just about Trump. From top to bottom, the GOP had a far, far better night than it did in its presidential landslides of 1972, 1980, or 1984. The Republican Party now runs the United States of America.

Finally, the role of conservatives – whether they were Never Trump or supporting Trump out of a belief that he represented the “lesser of two evils” – is clear. Trump is not naturally or intellectually conservative. He is self-interested. It is vital that we unite to strongly and clearly declare that life, liberty, and constitutional governance must prevail. I’m under no illusion that conservatism won the White House tonight, but conservatism has a voice. We must use it without fear.

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Playing Dangerous Games With Our Constitutional Republic

From David French:

The state of North Carolina and the federal government are now in a state of declared legal war. On Wednesday afternoon, the Obama administration sent a letter to North Carolina governor Pat McCrory demanding that the state “not comply with or enforce H.B. 2,” its so-called transgender bathroom law. According to the letter, a state requirement that people use the bathrooms reserved for their biological sex violates Title VII of the Civil Rights Act of 1964. The Department of Justice gave the state until today, May 9, to assure the federal government that men can use women’s restrooms and showers in state facilities.

Today, the state answered the Department of Justice — with a lawsuit. In its complaint, filed in federal court, North Carolina accuses the DOJ of engaging in a “baseless and blatant overreach,” an “attempt to rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the courts.” Simply put, Title VII does not establish “transgender status” as a protected class, and any effort to do so by executive fiat violates the law.

Then the DOJ escalated again. At an afternoon news conference, Attorney General Loretta Lynch announced a “significant law enforcement” action — its own lawsuit. At the same time, Lynch indicated that the DOJ retained the authority to federal funding to key state entities, issuing a not-so-veiled threat of dramatic action before the courts issue a definitive ruling. At the same time, she preposterously compared the act of preserving bathrooms for people of the same sex to, of course, “Jim Crow” and hearkened back to the days of segregated water fountains.

A public-relations battle over bathrooms and showers has transformed into a fight over the meaning and indeed authority of the Constitution itself. In its zeal to advance the sexual revolution, the Obama administration has defied the will of Congress, unilaterally rewritten federal law without even bothering to go through a statutory rulemaking process, and now seeks to bring a sovereign state to heel through a combination of threats and lawsuits.

Let’s make this simple. Title VII prohibits private and public employers (including state governments) from discriminating on the basis of “race, color, religion, sex, and national origin.” Title IX prohibits federally funded educational institutions from discriminating on the basis of “sex.” Neither statute prohibits sexual-orientation or gender-identity discrimination. For more than 20 years, LGBT activists have sought to amend federal law through the so-called Employment Non-Discrimination Act, a bill that would essentially add sexual orientation and gender identity as protected classes within federal nondiscrimination law. For more than 20 years, LGBT activists have failed. ENDA hasn’t passed even when Democrats controlled the presidency and both houses of Congress.

Rather than wait for the law to change, however, federal regulators and lawless federal judges have incrementally changed it by executive and judicial fiat, steadily expanding the scope of Title VII until July 2015, when the Equal Employment Opportunity Commission unilaterally amended the statute. In a document entitled “What You Should Know about EEOC and Enforcement Protections for LGBT Workers,” the Commission declared that it interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation” (boldface in original).

At a stroke, the EEOC decided that it was going to essentially enforce ENDA — a statute that doesn’t exist. Democracy wasn’t working fast enough for the Obama administration, so it decided to give authoritarianism a try.

North Carolina’s lawsuit represents a direct challenge to the notion that the EEOC can amend federal law merely by changing its “interpretation.” It also challenges the very idea that requiring people to use bathrooms that correspond with their biological sex represents sex discrimination. The Obama administration credulously buys the notion that a man in a dress or a man who has been surgically mutilated is now a “woman,” and it seeks to enforce that notion with the full power of the federal government. As I said before, quack science meets quack law, and the Constitution is the casualty.

The Obama administration is playing dangerous games with our constitutional republic. Unlike nullification crises in years past, this time the state government is leading the way in attempting to preserve the will of Congress and our nation’s system of checks and balances by defending federal law as written. The executive branch has gone rogue by amending federal law through unconstitutional action.

The administration is supplementing and buttressing its lawlessness with sheer bullying. Governor McCrory and the North Carolina legislature have shown admirable resolve. May they continue to stand firm. We’re way beyond bathrooms now.

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Bursting with Common Sense

From David French:

More than 150 kids walked out of Missouri’s Hillsboro High School yesterday. Why? Because a guy calling himself Lila Perry wanted to use the girls’ locker room. They were bursting with common sense:

“Boys needs to have their own locker room. Girls need to have their own locker room and if somebody has mixed feelings where they are, they need to have their own also,” said protester Jeff Childs.

The school had offered just such an accommodation, but that wasn’t enough for Perry:

Perry told News 4 school officials have been accommodating, understanding, and compliant with Title IX. The school offered her a private gender-neutral restroom, which she turned down.

The controversy exploded after a girl at the school reported encountering an “intact male” in the locker room. Exposing a penis to girls in a public high school is generally considered an act of sexual harassment, not part of the sexual revolution. But, sadly, Perry can’t see reality:

“I wasn’t hurting anyone and I didn’t want to feel segregated out. I didn’t want to be in the gender neutral bathroom. I am girl, I shouldn’t be pushed off to another bathroom,” said Perry.

Indecent exposure is hurtful. And I’m sorry, Lila, but you’re not a girl. Anyone who tells you otherwise is deceiving you.

While I feel sorry for a young, confused kid who’s becoming yet another pawn in the Left’s war on decency, I’m deeply heartened that more than 100 of his classmates took a stand for basic biology. Not every Millennial is a sexual revolutionary.

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The Ideological Lopsidedness of Government Lawyers

From David French:

Thanks to the TaxProf blog and to Instapundit, I discovered this chart detailing political giving by government lawyers:

Presidential Candidate Contributions

With certain limitations understood (we don’t know the affiliations of non-donors), the chart above looks more like the political affiliations of Ivy League women’s-studies departments than those of an allegedly impartial federal bureaucracy.

The civil-service system was designed to replace the spoils system, which — in addition to creating chaotic rushes of office-seekers with each change of administration — packed political hacks into important administrative positions. A civil service was supposed to change that unacceptable reality by placing the administration of the more neutral functions of the government into the hands of dispassionate professionals. Thus the strong federal job security in the civil service, greater security than enjoyed by virtually any private-sector employee. The job security — so the argument goes — was necessary to prevent the re-emergence of blatant political patronage.

But what if the combination of increasingly activist government with strong bureacratic bias re-creates federal service as a kind of permanent spoils system for the Left? Isn’t it inevitable that this leftist bureaucracy will eventually view itself not as a servant for all citizens but as an instrument of its own righteous ideology?

If the recent history of our universities is any guide, the products of a leftist bureacratic monoculture will be characterized by the following:

Ignorance: Groups of like-minded people are notoriously incurious about the ideas and perspectives of dissenters.

Condescension: They don’t let ignorance stand in the way of a bulletproof sense of moral and intellectual superiority.

Hatred: Since all the good people they know agree with them, they ascribe the worst of motives to the other side, believing them to be motivated by little more than greed and bigotry.

And, finally . . .

Fanaticism: Cass Sunstein described the “law of group polarization” like this: “In a striking empirical regularity, deliberation tends to move groups, and the individuals who compose them, toward a more extreme point in the direction indicated by their own predeliberation judgments.” In other words, when like-minded individuals deliberate, their common views grow more extreme over time.

We conservatives have a problem with Big Government, no matter who’s running it. But we also have a particular problem with this big government, as key agencies are increasingly staffed and run by individuals who wield enormous power, cannot be fired, and despise roughly half the American population. When Barack Obama urges supporters to “punish our enemies,” there are many federal employees only too willing to comply.

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