On the Hidden Police Power of Corporate America

After the UnitedHealthcare chief executive “was gunned down by a masked man outside a Manhattan hotel” in New York City, “a days-long manhunt” occurred that “spanned several states.”[1] The fact that only a few days were needed to find the suspect, Luigi Mangione, indicates just how massive and public the manhunt was. For it was not just any murder, as if the murder of a person who is the chief executive of a large corporation were worth so much more than that of the rest of us. I suspect that the influence of the company, and, moreover, corporate America, on local police in any U.S. member state is more than reaches the headlines. The case at hand my even suggest that that influence includes even tacit instructions to treat anti-corporate suspects of murder violently both in retaliation and as a visible reminder to other potential killers that CEOs are off-limits.

As Pennsylvania sheriff employees took Mangione from a vehicle to the back door of a courthouse, at least two of the employees shoved the suspect—and, remember, in the U.S. a suspect is presumed innocent unless or until proven guilty in a court of law—into a wall even though the wall was not on the way from the vehicle to the back door. In other words, the unnecessary violence was not on the way to the back door, and nor was the suspect resisting going into the courthouse. I contend that the unnecessary violence was at the behest of the corporation whose CEO the suspect allegedly shot. At that time, the evidence that would be found had not yet been found, as per the defense attorney’s statement in the courthouse. Whether the violence being maliciously applied by sheriff employees was merely to show the world how a suspect accused of killing a CEO gets treated by law enforcement, or to stop the suspect from speaking to the media present on his way to the backdoor is not clear. It seems to be possible, at the very least, that corporate instructions given to the police in Pennsylvania included: Don’t let the guy get his anti-corporate message out. This would be ironic, given that corporations had at the time the right of free speech, even through spending as if money constitutes speech.

That Mangione was not resisting going into the courthouse and yet was manhandled rougher than suspects were typically treated at the time may give Americans, as well as the world, a glimpse into the power that large concentrations of private wealth (which is what a corporation is) even as translated into raw violence. The use of police by companies in twentieth-century America to beat workers on strike is well documented. What I am suggesting is that local police were still susceptible to wealthy private interests such as corporations into the next century, at least as of the 2020s. I contend that any contact between police departments and the healthcare insurance company would properly have been limited to the police gaining information in the search for the killer.

Another indication of an over-reaction by local police occurred days after Mangione had been arrested, when Briana Boston was charged with a felony “with one count of making threats to conduct a mass shooting” during a phone call with Blue Cross Blue Shield, her health-insurance company, which was denying a claim that she had submitted. Obviously angry, she said, “Delay, deny, depose. You people are next.”[2] The phrase, “delay, deny, depose,” had been written on bullets by Mangione in reference to tactics that insurers use to avoid paying out claims and had become popular online. Because of the popularity, it could not be assumed that the woman was planning on writing the three words on bullets; the phrase had entered the lexicon. In fact, “(a)ccording to a consumer survey by KFF, more than half of insured [American] adults [had] experienced problems with their insurance provider, and some [of those adults] reported serious consequences.”[3] Strangely, the local police in Lakeland, Florida, said that her statement could be taken as probable cause of “making a threat to conduct a mass shooting . . ., according to the affidavit.”[4] A reasonable interpretation of, “you guys are next,” is that if Blue Cross continues to screw policy holders who do their part in paying premiums, someone may eventually go too far in retaliation. She did not say that she was going to take any violent action, or what that action might be. Given that she was momentarily angry, and perhaps justifiably so, the police employee who leapt to the conclusion that the woman was saying she would conduct a mass killing is ludicrous, and yet the police had the discretion (and thus power) to make an example of the woman by charging her with a crime carrying a fourteen-year sentence, without her having done anything. Had being angry at customer-service employees become a crime? Or, had free-speech that is objectionable to big business become a crime? If so, could corporations next go after certain thoughts, using employees of local police departments who dismiss protecting the public as dutiful sycophants?

We can turn the Lakeland police investigation on its head by investigating that department. It is significant that “Lakeland, Florida police said they were contact by the FBI . . . in response to the alleged threat.”[5] That the police did not waste any time and did not seem to second-guess the FBI may suggest that the FBI had been determined to snuff out the “potential” copy-cat. To be sure, the FBI may simply have been over-cautious, but even that could have been due to pressure from Blue Cross or elected officials who have received campaign contributions from the giant company. That both the FBI and the local police department in Florida would knowingly seek to charge an angry policy holder of a crime that carries a sentence of 14 years in prison indicates a grossly disproportionate reaction, which itself could point back to the deference that the FBI (and local police) give to business in doing its bidding, even to scare the public.

As an anecdote, once when leaving a restaurant after barely eating a very badly cooked meal, I was speaking to people in the shopping center’s parking lot about the food. The manager of the restaurant got wind of this and approached me even though I was no longer on her establishment’s property. “The police here are my friends!” she warned me. “Keep talking about my restaurant and I will get them to make you leave.” The manager’s sheer presumptuousness was laughable, so I kept talking as was my right. She did call her friends, who told me I had to leave the parking lot even though that lot was not owned by the restaurant. That the police dismissed my legitimate objection told me enough; I moved to another suburb of Phoenix only months later; Mormon-run Mesa was simply too corrupt (and drug-ridden).

If my small window into the deference that local police pay to small business in falsely enforcing law that is not really law is correct, it is not difficult to conjecture that the FBI as well as local police may be unduly biased towards, perhaps even de facto working for, large corporations. The sort of unaccountability in accusing a distraught policy-holder of mass murder (even without noticing that she had no record of violence and not even a gun!) and being willing to put her in prison for fourteen years, likely to send the public a message from the large corporations, is consistent with the lack of accountability generally on market participants that are so large and wealthy that even competition is stifled that so enrages consumers and thus prompts anti-corporate politics. The connection can be found in Adam Smith’s claim that one of the main rationales for government is to protect the wealthy from the poor, who would otherwise steal the wealth. Does this hold of the governments in the U.S., or is the public to be served? The official answer may differ from the real answer.

That the governments in the U.S. have allowed companies to become so large as to choke competition without anti-trust law being enforced—something that Adam Smith would not like—is yet another indication of the “under the table” power of large corporations in the United States, thanks in part to unlimited political campaign contributions being legal. Perhaps elected officials were the people delivering the instructions from the health insurance company to the Pennsylvania sheriff in Altoona: Be rough with the guy and don’t let him speak to the media. Push him up against a wall if you want. Grab him by the neck. Show the world what happens if someone goes up against corporate America.  Hence the anti-corporate political movement in a democracy that is premised on accountability rather than plutocracy with impunity.

My main point is that institutionally, or structurally, very large and wealthy private companies, whether corporations or privately held, are incompatible with not only market competition, which ensures fair prices (even at grocery stores after a pandemic), but also political democracy, wherein one person has one vote and thus is just as important as the next. Whether a man on the street or a corporate CEO is murdered, the police-response should be the same in terms of the cost and effort in the manhunt and how the suspects are treated. Innocent until proven guilty means that police violence against a suspect who is not being violent or resistant is itself a crime regardless of how rich the victim’s family or company happens to be. 

The case of the health insurance CEO’s murder in December, 2024 was deliberately not supposed to be a vehicle for getting an anti-corporate message out—with even violence being used to enforce this proscription—but how the Pennsylvania police aggressively treated the suspect unabashedly in public view can be seen as a poster advertising the interlarding of corporate power at the expense of accountability in American democracy. Both economically and politically, it can be asked whether large corporations are accountable in the United States; politically, the same question may be asked of the local police departments in the member states. The American governments in the U.S. could do worse than apply anti-trust law to a variety of markets and apply criminal law to local police departments whose actual paymasters can be characterized proverbially as the man behind the curtain—an allusion to the hidden Wizard in the film, The Wizard of Oz. Then again, perhaps Mr. Smith Goes to Washington is a more pertinent film, as the senator played by Jimmy Stuart filibusters for hours and hours against corruption in his home state.

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1. Jessica Parker and Nadine Yousif, “Luigi Mangione Fingerprints Match Crime-Scene Prints, Police Say,” BBC.com, December 11, 2024.
2. Pocharapon Neammanee, “Woman Arrested After Saying ‘Delay, Deny, Depose’ On Call With Insurance Company,” The Huffington Post, December 12, 2024.
3. Ibid.
4. Ibid.
5.Ibid.

The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).

Free Speech in the E.U.: Criminalizing Denials of Genocides

While the world continued to look on—like an impotent rich man who cannot afford Viagra—as a genocide was taking place in Syria (i.e., the systemic killing of a group—in this case, of pro-democracy demonstrators), France’s state senate approved a bill on January 23, 2012 criminalizing the denial of officially recognized genocides, which according to the state includes the Nazi Holocaust and the Turkish killing of Armenians beginning in 1915. In the twenty-first century, fining people and putting them in prison for not wanting to remember things so horrible evinces the same kind of nationalist thinking that had led the twentieth to be the bloodiest century. In contradistinction to that decadent century, turning a new leaf following the Arab spring in the twenty-first is a far better strategy.

Beyond the obvious matter of free speech, which admittedly is not absolute even in America, it should be asked whether law is an efficacious means of barring or changing thoughts. On the day of the vote, a study was released at the Bundestag in Berlin reporting that twenty percent of that state’s population was still anti-sematic. I don’t believe penalizing that prejudice itself (i.e., as a belief apart from any conduct) by the state’s police power forces any change at that level. At most, people would simply hide it—and how would such repression burst out in conduct? I submit it would be better simply to ignore the thoughts and concentrate on conduct.

Europe has had a tendency to codify thoughts as if they belong to the state. In America, that realm is province of the “thought police” that sprang up (as self-appointed) during the 1990s as “political correctness.”  At least with political correctness (such as in saying humankind rather than mankind, and Native American rather than American Indian), the self-appointed enforcer can be told to go to hell. The natural reaction to being accosted in such a presumptuous and pernicious way is to say precisely that which is not desired by the aggressor. Adding the police power of the state to enforce certain beliefs by penalizing others is dangerous not only for society itself, but also for individuals in terms of our quality of life free from anxiety. The over-reaching may even be immoral; it is certainly weakness.

A person may be able to control one’s own conduct more than one’s ideas or beliefs. Besides the futility of law in going after a person’s interior mental life, that domain is inherently beyond the unwanted control of another person. The French law would include up to a year in prison and a fine of about $58,000 for anyone who denies an officially-recognized genocide. Is the reach of the law limited to public speeches or published writings, or are people of France to feel anxious at private parties in their own home? In terms of general anxiety, the law could cost the state’s entire population. Is effectively adding the Turkish killings nearly a century before to the German Holocaust worth this in France? It is not as if that E.U. state borders Turkey.

Therefore, behind the 127 to 86 vote is a rather basic category mistake with respect to jurisprudence. Taking the law beyond its native domain to enforce one’s agenda using the police power of the state undercuts law itself, and thus contributes to the downfall of its legitimacy, even in its proper realm. In other words, in over-reaching, a government can wind up with even less influence over its people through even criminal law.

Additionally, a refusal to respect another’s inalienable right to have certain ideas or beliefs is to treat the rational nature (i.e., thoughts or beliefs) itself as merely a means to one’s own designs, rather than as an end in itself. According to Kant, this is immoral because of the value that is rightfully in reason because it is the assigner of value and thus has absolute value. Treating that which has essentially undefined value (as the source thereof) as having value only in so far as it fits with one’s own ideas or beliefs is wrong.

Might it be, Nietzsche would surely add, that modern moralizers are immoral rather than what we take ourselves to be? Who are the aggressors—les esprits méchants et perniceux? Might it be that human beings are far too presumptuous in what we think we know to venture into any other man’s head with impunity? Am I understood? This medicine is not meant for the weak, Nietzsche warns, who nonetheless have an uncontrollable urge to dominate. These new birds of prey are not entitled to dominate, and yet they somehow convince the strong—through thou shalt not—to be ashamed of those thoughts come out of their innate, self-confident strength. Be ashamed of who you are. The strong self-overcome their most willful instincts in order to experience the pleasure of power that naturally goes with their strength. The weak who seek to dominate, on the other hand, are driven by their instinct to overcome the resistance of others by passive aggression (owing to the weakness of the instinct, which they can’t seem to resist anyway) and cruelty (including genocides). Hitler was weak, but so too is the presumption to punish others for their beliefs in retaliation. Birds of a feather, these new birds of prey most certainly are. It is amazing they can even fly.

“By aiming at more [in pride],” Augustine proclaims in City of God (bk 14, ch.13), “a man is diminished.” Pride, by the way, is not self-confident strength, for self-overcoming is blocked by self-idolatry. Perhaps expressing the belief in over-reaching, which is an idea of the immoral and weak, should itself be punishable by a year in prison. This would probably only strengthen the belief, which in turn would weaken the believer even as he or she presumes to be more moral as a self-denying martyr. Lest the advocates of victims become ourselves victimizers (e.g., the Crusaders), it is a good policy for a general population to keep an eye on us too, for we can get quite carried away as moral zealots without realizing how we are affecting others (i.e., rational nature of others). That there have been (and will be) victims of horrible things in the world, does not give anyone the right to punish others for their thoughts or beliefs, for such intangibles are our inner castles, not to be treated like sand by pushy waves.

Fortunately, good sense prevailed and the French Constitutional Council struck down the law that would have criminalized the denial of the Armenian genocide by the Ottoman Turks. “We consider the annulment of the legislation by the Constitutional Council as a step that complies with the principles of freedom of expression and research, the rule of law and international law in France,” the Turkish Foreign Ministry said after the Council’s decision. This statement is ironic, given that the accession of Turkey into the E.U. had been held up in part out of concern in Europe that Turkey was not yet sufficiently ensconced in Western values. Perhaps it should have been asked whether France should be a state of the E.U.

Sources:

Scott Sayare and Sebnem Arsu, “Genocide Bill Angers Turks as It Passes in France,” The New York Times, January 23, 2012. 

Scott Sayare, “French Council Strikes Down Bill on Armenian Genocide Denial,” The New York Times, February 29, 2012. 

On the Place of Religion in Business: Refusing to Serve Gays

The U.S. Supreme Court heard oral arguments in December 2017 in a case on whether a baker in Colorado had been justified in refusing to sell a wedding cake to a same-sex couple. He claimed that his Christian faith forbid him from making wedding cakes for gay couples. “I follow Jesus Christ,” he declared when interviewed at his store. The Gospels are silent on the issue of homosexuality—it being said to be a sin only in the Old Testament—so the inference that following Jesus requires opposition to gay marriage (not to mention that homosexuality is an important issue in following Jesus) can be questioned. If the inference is tenuous, then it is the baker’s ideological stance that was actually at issue before the court. More broadly, is religion vulnerable to acting as a subterfuge, or cover, for what are really personal prejudices?

In terms of constitutional law, the baker contended that the First Amendment, “whose guarantees of free speech and religious exercise supersede any state law, exempts him from [Colorado’s] antidiscrimination act,” which has covered sexual orientation since 2007.[1] The question, I submit, is whether free speech and religious exercise are salient in a business context. Colorado was not contesting the baker’s freedom to speak out against gay marriage and engage in religious worship (i.e., expression) on his own time; the problem is the baker’s assumption that political speeches and religious practice apply directly in business. To claim that decorating a cake—and artistic expression more generally—is free speech over-applies the constitutional doctrine and ignores the fact that a product to be sold is being produced.

Moreover, the domain of business can be distinguished from both the political and religious domains. Even though they may be related, each has its most salient attributes, customs, and laws. In opening a business to serve the public, serving customers trumps making political or religious statements or decisions at the expense of customers. Put another way, in opening doors to serve the public, political and religious differences cannot justify refusing some of the public; the responsibility in serving the public thus supersedes circumscribing service based on personal political and religious prejudices.

“’No one disputes that [the baker] is ‘a man of deep religious faith whose beliefs guide his work, or that the Free Speech Clause protects his right to give voice to those beliefs,’ Colorado’s brief argues. ‘But when a business opens its doors to the public, a state may require that [the business] serve customers on equal terms, regardless of their race, sex, faith, or sexual orientation.”[2] The baker’s religious faith is most salient in the religious domain (e.g., at church), while serving the public is most salient in business. That which is foremost in one domain cannot legitimately claim such a status in another domain, even over its foremost customs and laws. In assuming that his business was a place for free speech and expression of his religious faith at the expense of serving the public, the baker misconstrued the distinct nature of business. In being open to the public, a business takes on an obligation to be open to the public rather than a part thereof based on religious grounds, especially if the religiosity is mere cover for what is actually a personal prejudice.  Overstating the importance or status of minor factors even over major ones in a given domain applies also in giving priority to an Old Testament dictum in what it means to follow Jesus Christ. In Christianity, as distinct from Judaism, the New Testament is more important than the Old Testament. The baker seems to have overlooked the main point in the New Testament: self-giving love towards others, especially when it is inconvenient (i.e., even toward enemies).

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[1] Jess Bravin, “Supreme Court Set to Hear Gay-Rights Case,” The Wall Street Journal, December 4, 2017.

[2] Ibid.

Free Speech in the EU: On the Judgement on John Galliano's Anti-Semitism

On March 1, 2011, Sidney Toledano, CEO of the French fashion house Christian Dior, wrote that he was dismissing its chief designer, John Galliano, after the surfacing of a video that showed "his anti-Semitic outbursts at a Paris bar." The word choice of outbursts by The New York Times is interesting, for the actual video shows him in a rather mellow, notably intoxicated, "well you know" mood. The article's writer admits that the designer had used "a slurred voice." Galliano was telling a Jewish couple that they should feel lucky that their ancestors were not killed by the Nazis because so many did not survive. He said ‘‘people like you would be dead,’’ and  ‘‘your mothers, your forefathers’’ could have all be ‘‘gassed.’’ Although applying a rational criterion to a drunk man, I wonder in what sense he meant ‘‘I love Hitler.’’ Considering that Galliano is gay and Hitler sent homosexuals to concentration camps, I suspect that Galliano was lying simply to hurt the couple in what was undoubtedly a back-and-forth in a verbal fight.  Indeed, it takes two to tangle, and the rest of us might do well to recognize the difficulty in interpreting a snipet without having observed the entire contest.

While hurtful and inappropriate even in the midst of a disagreement, Galliano's aversarial comments hardly constituted an outburst, as if he had lost control of himself and thrown his bar table against a wall. Why, one might ask, would a journalist at a major New York paper use a word that (deliberately?) overstates the case against the designer?  Perhaps even in a free society, there is a tendency to gang up on an unpopular, even loathed, minority opinion in a way that distorts the story in order to give occasion for further fulminations. We don't know, for example, what the couple might have said to Mr. Galliano that sparked his vitriole.  Lyes Meftahi, a 38 year old Parisian who runs an audiovisual company, said that Mr Galliano was certainly drunk, speaking slowly and slurring his words. So much for any outburst. Furthermore, the witness said that the designer was keeping to himself and was ‘‘provoked’’ by a woman, who had called Mr. Galliano ‘‘ugly.’’  Mr. Galliano himself was threatened with violence at one stage during the altercation according to Mr. Meftahi. It is difficult for the rest of us to know what happened based on an objectionable snipet.

Rather than defending the designer, whose comments I concur were highly inappropriate (note that I'm applying rationalism again to a drunk person),  I want to contend that the rush to judgment against him had a certain amount of presumption attached. That is to say, we as human beings may tend to presume we are in a position to judge when in fact we are not. Taking ourselves as gods on earth in effect, we tend to assume omniscience rather than limited creatureliness as our mantle. For a part to take itself as the whole is to truncate reality itself into a mere projection of the part. Lest we forget, we are all fallible, even when we judge with apparent certitude.

For example, that Mr. Galliano had "helped to energize Dior after he joined it in 1996 as creative director, increasing sales and making it a jewel of the LVMH Moët Hennessy Louis Vuitton luxury-goods empire" was wantonly or unintentionally tossed aside by Mr. Toledano in what bears all the signs of a rush to judgment. In its statement, Dior said it had ‘‘immediately suspended relations’’ with Mr. Galliano and ‘‘initiated dismissal procedures.’’ It cited the ‘‘particularly odious comments’’ contained in the video. It is as though the weight of history came slamming down on the star designer, suffocating him from even proffering a self-defense before the fall of the guillotine. In the face of this injustice, it might be quelle dommage pour M. Galliano were it not for his own choice of weapon. He undoubtedly esteemed his own faculties too much in assuming he could handle being drunk. Again, human beings do not have as much pith as we tend to think.

To be sure, anti-semitism and racism ought to be relegated to the ash heap following the twentieth century. For all its technological progress, that century was remarkably decadent and stagnant.  In early 2011, the world dared to hope that popular protests sweeping the Middle East might have been ushering in a new progression of freedom in the establishment of republics in what had been autocracies for centuries. Would that region sport the tolerance that is necessary for a free society to truly be free? Can it look to Europe, where certain speech, even in a small group, can get one thrown in prison? According to The New York Times, "French law makes it a crime to incite racial hatred; the statute has been used in the past to punish anti-Semitic remarks."  Yet to incite seems to connote a public broadcasting or speaking format, as in inciting the mob to storm the Bastille (or, as in 1792, the republic's prison filled with aristocrats and clergy--a massacre that Robbespierre denounced as a travesty of the rights of man). Does a person incite hatred against a particular group simply be giving his opinion in a dispute with another person?  The dubious applicability of the French law seems to hinge in this case on treating a private gathering, albeit in a public establishment, as a public (political) event.  Of course, in the United States, even the latter is protected by the first amendment on free speech, but even there hate crimes exist. In the European Union, where speech is punished on account of the Nazi experience, the society looks overly restrictive and unfree, at least from an American perspective. To be sure, the reverse has also been the case. In 1948, for example, the U.S. Government banned showings in the U.S. of the American documentary, Nuremberg: Its Lessons for Today, even as Germans were free (and encouraged) to see it in Germany. The American military did not want Americans seeing the Soviets as allies (and the Germans, whose help the American govenment was then seeking against the Russians, as enemies). It is precisely such a proclivity that the first amendment of the U.S. Constitution was designed to thwart. The human species is insufficiently equipped to be able to curtail innate freedom effectively.

Source: http://www.nytimes.com/2011/03/02/fashion/02dior.html?pagewanted=1&sq=john galliano&st=cse&scp=2

Making a Joke Out of Liberty: Unmasking a Political Travesty

“Land of the free” is a ubiquitous expression that Americans use to describe the United States. Presumably those states esteem liberty as a political value even though it is oxymoronic for a government to voluntarily limit its own power over the governed. Hence, ratification of the U.S. Constitution was predicated on a Bill of Rights quickly to follow. Declaring governmental power to be limited was not enough. That many States have had “mask laws,” many still on the books as of 2017, testifies as to how invasive government power can be precisely at the expense of personal liberty wherein no one is harmed.

In Virginia in late March, 2017, police arrested a man dressed as the Joker (of the Batman comic/movies). The man “was called in for walking around town in the creepy clown villain makeup while carrying a sword.” According to the Virginia criminal code, “It shall be unlawful for any person over 16 years of age, with the intent to conceal his identity, wear any mask, hood, or other device, whereby a substantial portion of the face is hidden or covered, so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth, without first having obtained from the owner or tenant thereof consent to do so in writing.”[1] Incredibly, a tenant with paint (e.g., of a professional or college sports team) on his or her face could not sit out on the porch of a house or a balcony of an apartment without the property owner’s written permission. Even indoors, in the privacy of the person’s residence, such permission would be needed. What room is there for liberty in a society having such an invasive law in spite of the fact that no harm to self or others is involved or even imminent? A slogan cannot hold up to such arduous “facts on the ground.”

Tellingly, the police arresting the man in Virginia “were apparently less worried about the weapon, and focused instead on [the man’s] face, which was covered in white paint.”[2] That priority defies common sense (which is what led me to write this essay). Clearly, a sword is more of a threat than white makeup on a face. Such makeup does not even constitute a mask, for the face itself is still recognizable. I suspect that the law’s true intent comes from the interest that police have in being able to identify people. That is to say, the law privileges a police state over individual liberty.

In the context of political protests, such as those of “Occupy Wall Street” in which New York City police cited protesters wearing masks, wearing makeup or even a mask can be considered part of the right to protest (though not free speech, as a mask is not speech). In the “Occupy Wall Street” protests, the mask used symbolized an aversion to governmental power, as per the influence of private wealth. Wearing the mask was in itself a protest.

Additionally, the right to protest anonymously may also be at stake; it is entirely reasonable to fear being identified by government security agencies simply for protesting peaceably. Furthermore, the requirement that political protests exclude the wearing of makeup or masks is dogmatic in the sense of being arbitrary—unless from the standpoint of a government’s security agency in wanting to be able to identify protesters. Where the protests are against the government, the government’s interest in identifying protesters is fraught with difficulty and is rightly to be questioned in terms of legitimacy.

Liberty not backed up by consistent statutes is meaningless. Statutes on the books contravening harmless actions such as face-painting makes a freedom-loving people a living hypocrisy. Some laws are so needlessly invasive that they cast a pall over rival broad claims of liberty; indeed, going to the extreme against liberty is itself a red flag, rather than a virtue.

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[1] VirginiaCode 18.2-422.

[2] Andy Campbell, “’Joker’ Charged with Felony for Concealing His Face in Public,” The Huffington Post, March 25, 2017.

John Paul Stevens: Money Is Not Political Speech

In his testimony before a U.S. Senate Committee in 2014, former U.S. Supreme Court Justice John Paul Stevens addressed the need for an amendment to the U.S. Constitution giving Congress and the States the power to restrict political campaign contributions.[1] After listing leveling the playing field such that rival candidates have equal opportunity to persuade, freeing up elected officials from having to spend so much time raising campaign funds, and distinguishing constituents from non-voters (including unions, corporations, and people of other electoral jurisdictions in the U.S.), he stated his position in particularly clear terms. “Money is not speech,” he declared. “Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive precisely the same constitutional protection as speech itself.”[2] 

Justice John Paul Stevens looking every bit the jurisprud. 

In short, even money given directly to a political campaign does not reduce to political speech. Although Citizens United (2010) and McCutcheon (2014) were being much cited at the time as baleful cases sure to transform the American democracy into a plutocracy, or rule by wealth-interests, Stevens went back to a 1976 case as the reason why a constitutional amendment rather a mere statute would be needed to place limitations on monetary contributions to political campaigns.[3] In denying Congress the power to impose limits on campaign contributions, the Court in Buckley v. Valeo issued the infamous equivalence between money and speech. To Stevens, money is speech is the fundamental error promulgated by the Court in Buckley that has led successive majority opinions to eviscerate campaign finance limitations enacted by Congress. I submit that the ex-jurist could have drawn on the Buckley decision for support, thus undermining the resulting legal doctrine as a legal precedent for the Court. 

  

The appellants in Buckley claim that “contributions and expenditures are at the very core of political speech, and that the Act's limitations thus constitute restraints on First Amendment liberty that are both gross and direct.”[4] Being at the very core of political speech, the monetary contributions effectively constitute such speech; restricting such expenditures thus violates the First Amendment directly in abridging the freedom of speech. In the words of the appellants, “limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment, since virtually all meaningful political communications in the modern setting involve the expenditure of money.”[5] The money-speech equivalence is thus a function of modernity, and is therefore not quite as unconditional and inherent as money is speech implies at face value. Indeed, the Court’s majority opinion itself undermines the equivalence.

Seemingly cementing the equivalence yet rendering less than unconditional (and thus tacitly undermining it, strictly speaking), Court’s majority opinion accepts the appellants’ “modernity” argument. “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”[6] The necessity of expenditures for a person (or persons, in associations) to have political speech makes the instrument political speech itself. That is, the necessity of the means essentially collapses the means-end dichotomy into a fusion as money is speech.

Yet the Court does acknowledge that “in contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. . . . A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.”[7] That is, the expenditure of money on political campaigns, as distinct from what Stevens called “general issues” in his testimony, enables someone else’s political speech. The money-speech equivalence being interpersonal (i.e., my money is equivalent to your political speech), restricting my contributions to a campaign violates the candidate’s right of free political speech.

Although it could be argued following the reasoning of the appellants in Buckley that technology and the contribution-levels enabled by the judicial doctrine of money-speech equivalence make a candidate’s right of political speech contingent on unencumbered political contributions, the interpersonal separation between the spender and speaker renders the money-speech equivalence as something less than a full, or fused, identity; restrictions on a person’s campaign contributions do not violate his or her first amendment rights. Therefore, Stevens could have cited the Buckley case in support of his argument that “money is not speech,” hence undermining the equivalence as a judicial doctrine from within the bloated whale itself.

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[1] John Paul Stevens, Campaign Finance Disclosure, U.S. Senate Committee on Rules and Administration, April 30, 2014.

[2] Ibid.

[3] Even though Stevens distinguished such contributions bearing directly on an election from money spent on general issues, I am not sure this distinction can hold up in practice, especially given the increasingly elongated “campaign season” (which comes at the expense of governing).

[4] Buckley v. Valeo, 424 U.S. 1 (1976).

[5] Ibid.

[6] Ibid.

[7] Ibid.

Is Money Speech?

Dan Backer represented Shaun McCutcheon before the U.S. Supreme Court in McCutcheon v. Federal Election Commission—a case in 2014 that further relaxed campaign-contribution limits beyond the openings created in the Citizens United decision in 2010.  Backer argued before the Court that any restriction of political contributions is a violation of the First Amendment's right of free speech. In an interview after the Court handed down its McCutcheon decision, Backer said, "I don't understand why anyone should have their free speech limited to help somebody else feel like they can speak more. The Constitution does not envision the idea of, as the court said, 'weakening the rights of some and the speech of some in order to enhance or promote the speech of others.'"[1]

A week after Backer’s interview, when $57 million had already been spent by outside groups on the 2014 midterm elections, David Keating, an advocate of the deregulation of campaign finance, put it simply as “money means speech.”[2] Interestingly, Backer backed off such a stark equivalence. "The court did not say, and really neither does any serious commentator, that money is speech. Money is not speech. Money is a necessary tool to engage in political speech and political association.”[3] Money is not speech; rather, money is a necessary prerequisite. Hence Backer treated the right to spend money (on political campaigns) as essentially the right of free speech applied to politics. In other words, the assumed necessity of money for political speech means that the right of free speech in electoral politics is essentially violated if the right to spend money is severed or even truncated.

However, is spending money really necessary for a person to be able to “speak” politically? Is it necessary to purchase a television ad-slot to be able to make a political speech? Surely more political discourse occurs than what is broadcast as political advertisements. I suspect that spending money can amplify one’s political speech in that the audience is made much larger; this is not to say that achieving such a scale is necessary for one to be able to speak on political matters.

For that matter, is a campaign contributor seeking to influence public policy (directly or via the election of a particular candidate) by spending money on a campaign even speaking? Keating would doubtlessly say yes. Money means speech. Pivoting off Backer’s (common sense?) point that money is not speech, however, we might say that the spending is necessary for one’s own speech to be accomplished through the agency of another party, such as a political campaign or an outside group; spending money on political campaigns essentially “hires” someone else to “do” one’s speech. Is such a “hiring” included in the right of free speech?

Moreover, is the right of free speech—meaning that a person’s political speech cannot be prohibited by the state—the same as the right to speak (not to mention through another party via a commercial transaction)? Similar to how procedural due process somehow got enlarged include substantive due process, I suspect that the right of free speech has inadvertently come to include the right to have one’s political views aired directly and even the right to essentially hire another party to broadcast them (assuming such hiring is necessary to one’s views “getting out there”).

The sheer expansiveness in judicial doctrines such as the commerce clause, establishment of religion, due process and free speech may be similar to the tendency of “weak states” to spend more on consumption than investment due to democratic pressures for instant gratification. In short, people want more and more, and are all too willing to contort prime facie meanings and tolerate absurdities such as “money is speech.” I submit that much daylight exists between government being prohibited from outlawing certain political speech and a right to spend money on political campaigns.

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1. Ryan Grim, “Now He Tells Us: McCutcheon Attorney Admits Money Is Not Speech,” The Huffington Post, April 7, 2014.

2. PBS News Hour, “Why Outside Groups Are Pouring Record Amounts of Money into this Year’s Midterm Elections,” April 16, 2014.

3. Grim, “Now He Tells Us.”

On the Politics of Hate Speech: Wilders in the Netherlands

Geert Wilders, head of the Party for Freedom (PVV) in the Netherlands, went on trial on October 4, 2010, in the Netherlands on charges of inciting hatred, less than a week after entering parliament as a linchpin in the coalition government. The far right political leader faced five charges of inciting hatred and discrimination against Muslims and people of non-Western immigrant origin, particularly Moroccans. “He divides, he creates hate, he creates conflicts between people,” said Mohammed Rabbae of the National Council for Moroccans. Wilders told the court he was being persecuted for “stating my opinion in the context of public debate,” adding: “I can assure you, I will continue proclaiming it.” In an opinion piece in a Dutch daily, he compared Islam to fascism and the Koran to Adolf Hitler’s book “Mein Kampf.”[1] Wilders also made the film “Fitna” in 2008 which portrayed the Koran as inciting violence and mixed images of terrorist attacks with quotations from the Islamic holy book.

I am staying out of the debate on Islam. Hence, I am not expressing an opinion on whether I agree or disagree with Wilders’ statements on Islam. I raise the matter of this case for its implications for free speech as it is practiced in political debate. The extreme-antisemitism of the Nazis resulted in some rather severe curbs on free speech in the state of Germany that would shock people in any of the American states.  While the EU is relatively restrictive on free speech, however, even in the US a person can not shout “fire!” in a crowded theater unless there really is a fire. The Wilders case is not being prosecuted as a “fire” case.  Rather, it is being portrayed as akin to hate crimes in the US, only in this case it involves speech in a political debate.  The Europeans may have been conflating a hate crime with an opinion in political debate.  Had Wilders urged people to kiss Muslims, his case would be much closer to a hate crime.  If a position in a political debate is itself to be treated as a hate crime, then politics itself is being criminalized.  This would be like saying that republican leaders who are against gay marriage and say it is sinful and akin to having sex with animals are somehow guilty of a hate crime. To say that something is odious does not in itself cross the line into urging people to kill those who believe in it or practice it. Were “dividing people” in a political speech or an opinion piece a crime, the republican party would find itself continually before a judge as one interest group after another feels marginalized by republican positions on particular issues. Political positions may well offend; that is the nature of politics. It doesn’t make it a crime. A clearer line between politics and crime needs to be drawn in Europe. Otherwise, prosecution will be increasingly used to cut out positions in the political discourse that some do not like. Politics is about conflict—hopefully resolving it. Part of the process may be identifying the conflict, and this may be perceived as dividing people when in fact there is already such a division. Where one side of a division is criminalized, the division itself cannot be known by society, and thus any resolution would be partial.  

Ideally, a division should be clearly and fully enunciated by each side, and then others not invested in either side will be sufficiently informed to be able to suggest viable and realistic solutions to the conflict. To ignore one of the positions would be to risk a solution that is merely partial and thus ultimately unsustainable.

1. Natalia Dannenberg and Gabriel Borrud, "Racial Hatred," DW., October 4, 2010.