Cheney rushed to judgement, Lummis finding the facts

Sen. Cynthia Lummis, Rep. Elizabeth Cheney

Both women of Wyoming’s congressional delegation are in the national news. Only weeks after Liz Cheney’s re-election as the GOP conference chair, she faces a removal petition signed by 107—over half—of her colleagues. Lummis, on the hand, was publicly criticized by 78 members of the Wyoming Bar who published an open letter claiming that the very first vote of Wyoming’s first female senator, Cynthia Lummis, was “wrong.”

Both the recall petition and the open letter are related to former President Donald Trump. But that is where the similarity ends. Cheney’s troubles stem from her decision to defy 70 percent of her constituency and vote to impeach Trump only seven days before the end of his term. Lummis, in effect, did the opposite. She voted against the certification of Pennsylvania’s electoral votes pending an investigation.

Much ink has been spilled on both sides of the issue. Was the election legitimate or illegitimate? Were President Trump’s actions in contesting it right or wrong? Kip Crofts, former U.S. Attorney for Wyoming, published a thorough and thoughtful article on the subject in the Cowboy State Daily. If his reasonable call for investigation ever comes to pass, America will learn the answers to these questions. If not, only the historians will know. Either way, time will tell.

My concern, however, is the present. Will we have the patience and self-discipline to find the facts that can allow us to rise above the frenzy? Or will we abandon rationality for mob rule.

The bloody streets of France’s reign of terror are the real-world consequences of mobs that ride the wave of emotion and rage. Such irrational destruction is denounced in the world’s best literature: Beauty and the Beast, The Hunchback of Notre Dame, and Rigoletto, to name a few. Harper Lee wrote of the injustice of the southern lynch mob in, To Kill a Mockingbird. All these warnings recall the hasty trial of Jesus and his unjust treatment in the courts of Caiaphas and Pontius Pilate.

Wise Solomon warned us, “The one who states his case first seems right, until the other comes and examines him” (Proverbs 18:17). Western jurisprudence has spent centuries developing procedures and traditions designed to slow the rush to judgment enough that truth might prevail. Look back on recent history and remember how many lives and livelihoods were destroyed by rioting mobs chanting slogans that were, too late, proved false in a court of law.

Against this measure, Cheney’s vote is indefensible. The articles of impeachment make numerous assertions about “facts” that are by no means proven. Take this portion, for instance: “…incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn Constitutional duty to certify the results of the 2020 election…” In the space of a few lines, there are at least three unproved assertions.

First, breaches to Capitol security barriers began nearly a half-hour before—and two miles away from—where the President finished speaking at the Ellipse. Were these people motivated by words that they could not have heard? Second, these provocateurs were obviously not “members of the crowd he had addressed.” Third, do we know their objectives? Where they the same as—or even compatible with—the objectives of those who arrived later to find the security barriers already moved aside?

On the day that Cheney claimed to know these facts, the FBI was only seven days into its investigation. Since then, evidence to the contrary has mounted. It took a special counsel 30 months to disprove the “Russia collusion” theory. That, alone, should have cautioned Cheney from trusting the week-old accusations from her party’s opponents.

Cynthia Lummis, on the other hand, took a more careful posture. Her vote against the certification of Pennsylvania’s electoral votes judged them to be neither fraudulent nor legitimate. She voted for more investigation, not less. It was a vote for a 10-day emergency audit to establish facts and address the legitimate concerns of tens of millions of voters.

Those who signed the open letter invoked the rules of the Wyoming Bar in their criticism. Does the Wyoming State Bar agree with them? Is it true that Lummis has a duty to “publicly affirm the legitimacy” of Pennsylvania’s electoral votes before she hears any answer to the legitimate concerns raised by Pennsylvania’s own lawmakers? Or is Lummis right in saying, “Each of us has a solemn duty to ensure that the slate of presidential electors we certify is beyond reproach, respecting the people’s voice and upholding the Constitution.”

Cheney condemned before there was even the possibility of investigation. Lummis’ critics want her to “publicly affirm the legitimacy of the results of the 2020 Presidential election” without investigation. Both fall into the same frenetic rush to judgment.

Mob rule is based on snap judgments. Civilization requires time for the deliberative process to find out the truth. Only then can justice prevail.

Also published in the Wyoming Tribune Eagle, 1/29/21.

...and the Cowboy State Daily, 2/2/21.

The Federalist: How The Supreme Court Made It Easier To Smear People As Racists And Scream The F-Word In Public

 

Instead of protecting true free speech, we’ve crushed the speech that matters most: the articulation and testing of the truth.

For the first time since Thomas Jefferson, Speaker Nancy Pelosi invited nonsensical and irrelevant ad hominem attacks to be both spoken on the floor of the House and to be entered into the permanent congressional record. Sadly, her invitation was eagerly accepted. Freshman Rep. Cori Bush, D-Mo., called President Trump “a white supremacist president,” and “white supremacist-in-chief,” while Rep. Rashida Tlaib, D-Mich., called him “racist-in-chief.”

How did we get to this disgraceful state of affairs? The answer goes back to 1942.

Continue reading on the Federalist.

Free Speech is for all ideas, not all words

Author’s note: It is an uncomfortable exercise for this author to discuss obscene speech on paper. Nevertheless, because of the importance of the topic, it is attempted here in the most decorous way possible.

Walter Chaplinsky was a Jehovah’s Witness street preacher holding forth in downtown Rochester, New Hampshire. His message for the day was a general screed against organized religion. As the streets were blocked and the turmoil grew, authorities arrived to restore order. At this point, Chaplinsky turned his ire to the town marshal saying, “You are a G-d d-mned racketeer,” and “a d-mned fascist.”

Chapter 378, paragraph 2 of the New Hampshire Public Laws made it illegal for anyone to address “any offensive, derisive or annoying word to anyone who is lawfully in any street or public place ... or to call him by an offensive or derisive name.” Chaplinsky was arrested and cited for breaking this law. He contested New Hampshire’s public obscenity law claiming that it violated the First Amendment.

Eventually, his case worked its way to the U.S. Supreme Court. Justice Frank Murphy wrote the majority opinion against Chaplinsky. The Court held that “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

This landmark decision established the “fighting words doctrine” on March 9, 1942. It is one thing to express an idea. It is quite another to do so using words which are not intended to serve “as a step to truth,” but “to inflict injury or to incite an immediate breach of the peace.” The First Amendment protects the expression of all ideas. It does not protect the public utterance of all words.

Notice that public obscenity laws harmoniously existed with the First Amendment for more than 150 years before the Supreme Court even thought it necessary to formulate a doctrine to explain why this is so. This is common sense. It does not require a linguistic scholar to know the difference between “the lewd and obscene, the profane, the libelous, and the insulting [words]” on the one hand, and words that convey thoughtful content on the other. The least-educated dolt knows the distinction as well as the university professor.

“Fighting words” attack the person without addressing the argument in the slightest. We learn this in the schoolyard from the earliest days. When the bully is called out for cutting in line, he is not likely to offer a reason why it was justified. He is more likely to say, “shut up, stupid.” Whether you are stupid or not, it remains wrong to cut in front of you. His response makes no sense.

This is so obvious that we rarely take the time to point out the irrationality of fighting words. It was so obvious to the Supreme Court that the prohibition and punishment of fighting words had “never been thought to raise any constitutional problem.” Their landmark decision stood until America lost its common sense.

On April 26, 1968, Paul Cohen was arrested in a corridor of the Los Angeles Courthouse for wearing a jacket that said, “F--- the Draft.” Like Chaplinsky, he contested California’s offensive conduct law on First Amendment grounds. Cohen was convicted according to California Penal Code. This conviction was upheld on appeal and denied review by the California Supreme Court.

The Warren Court

The case went to U.S. Supreme Court. On February 22, 1971 Chief Justice Warren Burger instructed Cohen’s lawyer, Melville Nimmer, that the offensive word in question need not be uttered in the hallowed halls of the Supreme Court. Seconds later, in an act of calculated defiance, Nimmer said, “What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, ‘F--- the Draft.’” Presumably, this was the first time in history that such a vile word was uttered in that setting.

Nimmer was not cited for contempt of court. Rather, he walked away with a 5-4 ruling that overturned 180 years of First Amendment jurisprudence. Justice John Harlan famously wrote for the majority, "...while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric."

This ruling unleashed a flood of obscenities and verbal injuries on the innocent public. It was not that Americans lost their common sense and decided that they wanted lewd, obscene, profane, libelous, and insulting words to become part of the public discourse. It happened, rather, because five men in black robes lost their common sense.

Have you ever wondered how American culture has gotten to the point that total strangers are permitted legally to scream vile obscenities to your face while policemen in riot gear stand by passively? This was brought to you by the same court that gave you Roe v. Wade. Nor was it always the case.

BLM mob accosts a diner in Washington, D.C.

Were this the only sad consequence of Cohen v. California, it would be bad enough. But things have devolved further still. In 1977 Cohen was cited as a reason to permit Nazis to carry their flag through a community of holocaust survivors while screaming insults. In 1978, the Federal Communications Commission lost its ability to keep obscenities off the air; and in 1986 public schools lost their authority to prevent students from screaming “F--- you,” in the halls of education.

Today, in the cruelest irony of all, “hate speech laws” have completely turned the table. Now there are certain ideas that cannot be expressed without public penalty. Florists, bakers, clerks and printers have been devastated by lost business, government fines and legal costs just for expressing the idea that male and female are not interchangeable. Meanwhile, the law permits them to be assailed with nonsensical words like, “hater,” “bigot,” and “Nazi.”

Such words do not serve as a “step to the truth.” Rather, they are meant to insult and incite economic and social violence against their targets. In 1942 Justice Murphy articulated, as a matter of timeless common sense, that the First Amendment protects the expression and defense of every idea as a valuable step towards discovering the truth. But the First Amendment does not protect the utterance of every possible obscenity because it does not elucidate the truth.

Now, only 80 years later, the case is reversed. Nonsensical, vile and intentionally injurious words are fully protected speech while the expression of certain ideas—even in the kindest possible terms—is strictly forbidden.

SCOTUS’ 1971 scuttling of obscenity laws was supposed to protect free speech. Instead, it has crushed the speech that matters most: the articulation and testing of the truth.

Also published in the Wyoming Tribune Eagle, 1/22/21.

...and the Cowboy State Daily, 1/20/21.