What the Constitution does not say Tuesday, Jun 29 2010 

I’ve been reading on the Internet a bit about the recent Supreme Court decision in Christian Legal Society v. Martinez. (Opinion of the Court can be found here, and a New York Times article about it can be found here.)

At issue was whether the University of California’s Hastings College of the Law had to formally recognize the Christian Legal Society (CLS) as a student group on campus. The law school argued that it did not, because the student group did not conform to its nondiscrimination policy. The Christian Legal Society, which has 165 student chapters across the nation, disallows voting rights or officer positions to those who engage in “unrepentant participation in or advocacy of a sexually immoral lifestyle” (that is, homosexuals). The law school did not want to recognize a group that did not allow full membership to anyone who wanted it.

As evidenced by the opinion of the Court that I linked to above, the Court voted 5-4 in favor of the university.

As expected, this made conservatives, right-wingers, and even some proclaimed “libertarians” pretty unhappy. Students for Liberty declares that the ruling “undermines the freedom of association on campus.” The Foundation for Individual Rights in Education (FIRE) also declared that the ruling “undermines freedom.” These people and groups claim it is the CLS’s First Amendment right to bar homosexuals from membership from their organization. Ergo, the recent Court ruling is antithetical to liberty, free speech rights, and the right to “freedom of association.” Even Filip Spagnoli, a firm defender of human rights, states, “the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.”

The question, as it always is, is, “Is it true?” (Bravo to me for using three is‘s a in a row. Apologies for poor prose!) Well, it certainly is true that the the CLS has the First Amendment right to bar whomever they please from membership, including homosexuals. Freedom of association certainly allows that, as Dr. Spagnoli keenly points out. However, as Dr. Spagnoli also correctly points out, “Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.”

While the student group certainly has the First Amendment right to exist, they have no right to public subsidy. The First Amendment gives people and groups the right to free speech and association, but not the right to have your speech subsidized. That is found no where in the U.S. Constitution. The Court affirms this view point. While affirming the CLS’s right to exist, the Court ruled that the U.S. Constitution offers the group no right to have their speech or views subsidized or supported by others.

Justice Stevens said that, while the U.S. Constitution “may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them. . . . [O]ther groups may exclude or mistreat Jews, blacks and women — or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

What I find to be hypocritical in the extreme is that those who claim to be defending “freedom of association” deny the university’s right to freedom of association. If the law school does not wish to associate with or subsidize patently discriminatory groups, that ought to be their right. So, in effect, I believe the Court’s ruling was a win for freedom of association rights.

Update: Dr. Spagnoli admits the following: “It seems I glossed over a crucial distinction: getting yourself banned and losing subsidies. The latter isn’t a rights violations and that is what happened. The former would have been but that’s not what happened.” I agree with him here.

Apathy kills Wednesday, Mar 31 2010 

WikiLeaks has just released a rather disturbing document. The leaked document comes from the CIA, and it details how the manipulation of public opinion should be used to bolster support for our war in Afghanistan. The CIA is apparently concerned with the possibility of a “Dutch-style debate” in other NATO countries, “notably France and Germany.” The Dutch, of course, made news last month after their government collapsed amid debates as to whether the country should keep its troops in Afghanistan or not. The Dutch will pull their troops out by August.

Naturally, the U.S. government is very concerned about this. If a “Dutch-style debate” spreads to other countries, the mission in Afghanistan could be jeopardized. They know this because they know their war in Afghanistan is overwhelmingly opposed by the public. (You can read my post on why I think the Afghanistan War is fundamentally wrong here.) The CIA acknowledges, “Berlin and Paris currently maintain the third and fourth highest ISAF troop levels, despite the opposition of 80 percent of German and French respondents to increased ISAF deployments, according to INR polling in fall 2009.”

I believe this has something to do with one of the conclusions I came to in a post about the way democracy in the United States functions: the public is supposed to be marginalized and its opinion ignored. I don’t pretend this is limited to the United States. The CIA readily admits “French and German leaders” have been able to “disregard popular opposition and steadily increase their troop contributions to the International Security Assistance Force (ISAF).” The CIA notes that Germany and France “have counted on public apathy about Afghanistan to increase their contributions to the mission.” But if a “Dutch-style debate” spreads to these countries, they may not be able to rely on apathy any longer to continue their involvement in Afghanistan. Apathy could quickly “turn into active and politically potent hostility,” and worsening conditions “could become a tipping point in converting passive opposition into active calls for immediate withdrawal.” This is bad news because the CIA fears “politicians elsewhere might cite a precedent for ‘listening to the voters.'” We can’t have politicians listening to voters…

Thus, the report recommends the United States government be involved in a campaign to alter the public’s opinion, or what has been referred to as “the manufacture of consent.” In normal parlance we might refer to this as propaganda. The report mentions, “Western European publics might be better prepared to tolerate a spring and summer of greater military and civilian casualties if they perceive clear connections between outcomes in Afghanistan and their own priorities.” Therefore, there is a need for “A consistent and iterative strategic communication program” that would give “tailored messages” to the public, in order to get them “to support a good and necessary cause despite casualties.” The report suggests the U.S. government “could leverage French (and other European) guilt.” If we monger fear, particularly about “the Taliban rolling back hard-won progress” and “a refugee crisis,” we could “provoke French indignation.”

One of the key resources we have in doing this is President Obama. It’s fairly hard for anyone to ignore how muted the subject of war has become, particularly in left and Democratic circles, after the election of President Obama. Him being a Democrat has helped the hawks in calming the anti-war movement, which has a strong core of Democrats and leftists (though there are also many right-libertarians as well). The CIA recognizes this fact. The CIA is quick to boast about the “confidence of the French and German publics in President Obama’s ability to handle foreign affairs in general and Afghanistan in particular.” They suggest there is a “significant sensitivity to disappointing a president seen as broadly in sync with European concerns.” Therefore, President Obama is a wonderful asset for the U.S. government to sell the war.

If our government being involved in the manipulation of opinion in other countries doesn’t unsettle you in the slightest, perhaps it would be even harder to not be disturbed by how it is actively going after Web sites like WikiLeaks that expose secrets of corrupt governments and corporations. WikiLeaks.org has been described as a “controversial but essential example of what the web does best,” that “takes power away from the powerful and hands it to citizens.” This is precisely what has the U.S. government concerned. Writes The New York Times, “To the list of the enemies threatening the security of the United States, the Pentagon has added WikiLeaks.org, a tiny online source of information and documents that governments and corporations around the world would prefer to keep secret.” This is following WikiLeak’s release of a document prepared by the U.S. Army Counterintelligence Center that discusses how it sees WikiLeaks as being a threat to the national government.

I think little else need be said.

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