Free Speech is a Civil Right

Much ink and many pixels have been employed recently over the oppostion of Chick-Fil-A's Chief Operating Officer, Dan Cathy, to marriage equality.  The mayors of Boston, Chicago, and Washington, D. C., have called for the company to be banned from opening stores in their locales.  But pardners, that just ain't the American way.  Giddown off your high horse for a minute and give a listen to Kevin Naff in the Washington Blade:

It’s true that the bigots at Chick-fil-A are on the wrong side of history, but unfortunately so are HRC and the groups that support government retaliation against a citizen on the basis of his political views. Does the LGBT movement really want to find itself on the losing side of a debate over freedom of speech? Sure, criticize Cathy and his views. Organize boycotts and protests of the restaurants. And use this ugly episode to make the case for the federal Employment Non-Discrimination Act, because surely Cathy’s LGBT employees lack job security. But endorsing government attacks on a business over its president’s views — however offensive and wrong — is reckless and ignores our community’s long, painful history of being victimized by government officials. . . .

Members of the LGBT community ought to be the most aggressive in defending the freedom of speech. We continue to use it in powerful ways to advance our equality. To now applaud politicians who would deny business licenses to companies based on the political views of their owners might feel good, but are we so desperate for validation that we want to stoop to the ugly (and unconstitutional) practices of our opponents?

New York Mayor Michael Bloomberg got it right when he said, “trampling on the freedom to marry whoever you want is exactly the same as trampling on your freedom to open a store.” Dan Cathy deserves the right of free speech. He’s entitled to his views and welcome to spend his money funding our enemies. It’s ultimately a losing fight so his money is wasted. We should counter his message of hate and intolerance by pressing for justice. This controversy should be Exhibit A in the case for ENDA.

Let's think this through here, fellas. What is the purpose of a business? To sell a product or service to the public, and thereby make a profit for its owners. As long as the business pays its taxes, complies with the laws that prohibit selling shoddy or dangerous merchandise, as well as the laws regulating pay and treatment of its workers, you're good to go here in the U. S. of A., right?

There is no political or religious test for running a business. And do you really want to see that here, friends? The proprietor can be an atheist or a Holy Roller - a flaming liberal or a die-hard conservative - a member of PETA or the NRA. None of that matters a bit, nor how the proprietor votes or what he thinks about any issue of the day. Our government simply takes no notice of all these irrelevant things. Nor should it.

They don't ask to check your gay card when you walk up to the counter and order a scrumptious chicken sandwich and waffle fries, do they? Which is a treat your Head Trucker dearly loves - but I won't be eating any, anytime soon. That's also my privilege in this land of the free and home of the brave. 

But frankly, this whole uproar is getting much more attention than it deserves - to reduce marriage equality, which means so much to so many, to a goddamn chicken sandwich is just so fucking 5th-grade that I don't know whether to laugh or cry.

So can the government - local, state, federal - take any action against a company run by a bigoted owner? Um, no. No more than the government can tell you what neighborhood you can or can't live in because of your political views, bucko, or where you can or can't buy your groceries. It's called freedom, ya know?

So Russ, you're asking me, does that mean the government can never touch a business that's behaving badly? Well, it can - when the business breaks a duly enacted law. It's called the rule of law, ya know?

Take a little walk with me back to the Civil Rights era of the 1960's, to a controversy involving another Atlanta-based outfit. The government did indeed step up to the plate then to prosecute businesses that broke the law - but it was because they violated the law, not because the owner shot off his mouth in one direction or another. That is always an American's privilege - yours and mine and even the buffoonish bigot, Lester Maddox, whose Pickrick Restaurant in Atlanta was smack-dab in the middle of a major civil rights confrontation back in 1964. From the New Georgia Encyclopedia:

Maddox refused to serve African American patrons. He kept ax handles--called "Pickrick drumsticks" near the restaurant's front door to discourage African Americans seeking to eat at the restaurant.

Following the passage of the 1964 Civil Rights Act, Maddox chased two African Americans away from the Pickrick at gunpoint. Maddox publicly announced he would go to jail before serving African Americans, even after being charged in court for pointing a gun at the men. On July 22 in a case against the Pickrick and the white-only Heart of Atlanta Motel, a federal court upheld the Civil Rights Act and issued an injunction beginning August 11 against both businesses prohibiting them from denying service to customers based on color or race. Lawyers appealed the case to the United States Supreme Court which heard the case in October; while waiting for the court to hear the case, the Heart of Atlanta began accepting African American customers, and Maddox closed the Pickrick on August 13.

On September 26 Maddox opened the Lester Maddox Cafeteria in the Pickrick's old location and announced he would serve "acceptable" Georgians. During a trial for contempt of court on September 29, Maddox argued that he was not in contempt because he was no longer offering service to out-of-state travelers or integrationists. In December 1964 the United States Supreme Court ruled in favor of the Civil Rights Act. On February 5, 1965 a federal court ruled Maddox was in contempt of court for failing to obey the injunction and ordered him fined two hundred dollars a day for failing to serve African Americans. Maddox closed the restaurant February 7, 1965 blaming president Johnson and communism for putting him out of business.

Maddox had to close his restaurant not, be it noted, for his opinions on race, but because he violated the law - though the notoriety got him elected Governor of the state of Georgia at the very next election. And so for four years, he was Bozo-in-Chief of the Peach State, until succeeded by Jimmy Carter in 1971.

Still, it's the rule of law that is the lesson here. White, black, gay, straight - everybody can speak their mind in these United States, even if it's the mind of a dipshit jackass. And if you don't agree with that, you don't deserve the freedom to speak yours.

Picket, protest, abstain, do whatever peaceful thing you want to do - but just remember: what goes around comes around, fellas. We may be gay, but we're Americans first.


Here's some clips of Lester at his asshole best, I thought you boys might get a chuckle out of them. The first is from 1964, when a few black activists tried to enter the Pickrick, and Maddox arrogantly turned them away:



Another clip is from 1968, when then-Governor Maddox was interviewed by Joe Pyne - forgotten now, he was a hard-hitting forerunner of Phil Donahue:




See also: Rob Tisnai's brilliant post, "Hating Hate Speech Laws."


Bonus: The Rev. Baxter Wynn, of First Baptist Church of Greenville, South Carolina, and a nephew of Lester Maddox, compares his uncle with another Atlanta boy, Martin Luther King Jr., in this fascinating excerpt of a talk (I wish someone had posted the whole thing on YT):

DADT: Sense and Nonsense

I've not commented recently on the whole DADT thing because it's all such a muddle, and now it's tossed salad between the courts and a lame-duck Congress and a dithering President.  Who knows how or when it will ever get repealed.

I will say, and some of you may disagree, that it seems to me very improper for one District Court judge in California - who is very low on the totem pole, as federal judges go - to resolve the whole big debate by a singlehanded "worldwide" ruling.  The reason being, guys, that the military is a special case for several very good reasons.  And the Constitution makes the President the Commander-in-Chief, while Congress holds the purse strings.  The Supreme Court, it seems to me, is the only body that can possibly have a say in the matter, so for constitutional reasons, I'm glad the appeals are headed that way.

Similarly, my love for my country requires me to sharply disagree with the notion proposed today by Adam Serwer today in the Washington Post blog The Plum Line, in an article entitled "On DADT, it's imperial presidency time," where he argues:

If Republicans continue to block DADT repeal from even coming to a vote, the president should take a page from Truman and end the policy through an executive order advising the military not to enforce the policy and cease defending it from challenges in court. The military's own empirical studies show allowing gays and lesbians to serve does not hurt military effectiveness, and the military's own policy of occasionally delaying DADT investigations of deployed troops confirms that finding. The military in Truman's time was deeply opposed to integration, and if he had waited for a favorable political climate to act desegregation might not have occurred for decades.

During the Bush years, liberals complained about his "imperial presidency," and so the idea that Obama should simply end the policy by fiat would seem hypocritical. But the use of an executive order to end a policy a majority of Americans, including conservatives, want to end, is no more undemocratic than Republicans' use of procedural maneuvers to thwart an up or down vote. Republicans holding the legislative process, and the fundamental rights of gay and lesbian servicemembers, hostage to their own homophobic prejudices, would still be the greater act of tyranny.

This is an extremely short-sighted view, and a very, very dangerous one.  Guys - think about it.  No matter how hurt, disappointed, or outraged we may feel at this moment over the delay in repealing DADT, you really don't want to live in a banana republic where the Congress passes laws that the President of the day simply ignores at will.

Nor do you want government-by-opinion-poll.  Just think about that.  Serwer's proposal would throw the entire Consitutional system of checks and balances into the toilet, and set an incredibly dangerous precedent for future presidents.  Some of whom will be Republican.  Or worse.  We do not want a system where the President just does whatever the hell he pleases, when he pleases.  Do you understand?

The glory of our nation is that we live under the rule of law, not of men.  That rule was already stretched nearly to the breaking point by the last President.  Let's not go backwards, fellas.  You want to make rules for others to live by?  Well then, knucklehead, you have to live by the rules and play by the rules yourself.  Didn't you learn that on the playground in first grade?

Also, you need to understand, as I've blogged about before, that Truman did not wave a magic wand and zap! integrate the military overnight, with everybody loving up on everybody else and saying ain't it wonderful.   It took more than ten years, from the first surveys of troop attitudes during World War II to the removal of all segregated facilities on military bases.  If you want to be truly informed - and therefore, worth listening to on this subject - go read the timeline of military desegregation at the Truman Presidential Library website.

Also, you should understand that when Truman issued his executive order, Congress had never passed a law requiring the armed forces to be segregated; it was merely longstanding policy.  The difference today is that Congress did pass a law, DADT, which makes it a different ballgame.  Yes, the Supreme Court ought to rule that DADT is totally unconstitutional - but we just aren't there yet.

Dr. Gregory Herek, psychology professor at UC-Davis, has an excellent web site with many valuable links pertaining to DADT.  Also, after noting the somewhat reluctant use of black troops from the Revolutionary War to World War I, Herek explains (emphasis mine):

At the beginning of World War II, as in the past, personnel needs dictated that Black recruits be accepted for military service. Once again, Black enlisted personnel were segregated from Whites – usually led by Black officers – and placed in support roles. As the war effort progressed, however, the Navy experimented with integration of enlisted personnel, which was less expensive than maintaining combat-ready segregated units. By the War’s end, more than one million African-Americans served efficiently in various service branches. Inter-racial conflict did not appear to be a problem in combat zones, although some tensions were reported in rear areas. As Stouffer and his colleagues concluded in their social scientific study of the American soldier, events in World War II demonstrated that Blacks were effective fighters and that racial integration in the military would not compromise unit effectiveness.

Nevertheless, racial segregation remained official government policy until President Harry Truman's historic Executive Order 9981, issued a few months before the 1948 election, which "declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin." Following this order, the armed forces began to institute a policy of racial desegregation. Desegregation proceeded slowly, however, and met with resistance.

Most civilians and military personnel opposed racial integration. One month before President Truman's Executive Order, a Gallup poll showed that 63% of American adults endorsed the separation of Blacks and Whites in the military; only 26% supported integration. A 1949 survey of white Army personnel revealed that 32% completely opposed racial integration in any form, and 61% opposed integration if it meant that Whites and Blacks would share sleeping quarters and mess halls. However, 68% of white soldiers were willing to have Blacks and Whites work together, provided they didn't share barracks or mess facilities.

As the 1993 RAND report noted,

"Many white Americans (especially Southerners) responded with visceral revulsion to the idea of close physical contact with blacks. Many also perceived racial integration as a profound affront to their sense of social order. Blacks, for their part, often harbored deep mistrust of whites and great sensitivity to any language or actions that might be construed as racial discrimination" (National Defense Research Institute, 1993, p. 160).

As in past wars, the Korean conflict created a shortage of personnel and Black Americans helped to fill this need. Because of troop shortages and the high costs of maintaining racially segregated facilities, integration rapidly became a reality. In 1951, integration of the Army was boosted by the findings from a study of the impact of desegregation on unit effectiveness of troops deployed in Korea. The researchers concluded that racial integration had not impaired task performance or unit effectiveness, that cooperation in integrated units was equal or superior to that of all-White units, and that serving with Blacks appeared to make White soldiers more accepting of integration. By the end of the Korean conflict [1953], the Department of Defense (DOD) had eliminated all racially segregated units and living quarters.

Igor Volsky at the Wonk Room has transcribed some surveys done by the American military from 1942 to 1945, which reveal how widespread and unpopular the idea of racial integration was among enlisted men and officers:

These surveys show that the same attitude pervaded the military: 3/4 Air Force men favored separate training schools, combat, and ground crews and 85% of white soldiers thought it was a good idea to have separate service clubs in army camps . . .

While smaller, these racial polls share some common questions with the DADT survey. In fact, in some instances one can even replace “negro” for “gay” and end up with today’s questionnaire. Both polls ask servicemembers if they objected to working alongside minorities, how they felt serving with minorities, how effective minorities are in combat and if their feelings have changed about the minority after serving with them. (Interestingly, 77% of respondents said they had more favorable opinion).

Truman integrated the forces despite the objections of the troops and it remains to be seen if Gates, Chairman of the Joint Chiefs of Staff Mike Mullen and President Obama (who have to sign off on the DOD study) are willing to do the same for Don’t Ask, Don’t Tell.

The surveys make interesting reading; good stuff to know if you get into a conversation about DADT.  Here's the transcript of what Volsky found:

Final Race Wonk Room


Bottom line:  Fight hard, fight fair, but it's important to play by the rules, and to expect a period of adjustment even after DADT is repealed - which it will be one day, please God.  But nobody and nothing is going to make it all happen peachy-keen overnight. 

And you absolutely do not want a fucking dictatorship where that could happen.  Think it over, guys.  The rule of law, checks and balances, constitutional government:  gay or straight, white or black, male or female, our first allegiance must be to all those those things that make our country what it is, and will in time make it what it should be.

Without them, America would not be worth living in.  Without them, we would be the Evil Empire of the world.  I don't want to go there, do you?


Update:  Kevin Drum at Mother Jones via Andrew Sullivan:

Let's face it: if you pick your jurisdiction right you can probably find a district court judge to rule just about anything unconstitutional. It would be easy, for example, to find a district court judge somewhere to say that the healthcare reform law was unconstitutional. If this happened in 2013 and President Palin decided not to appeal the ruling, thus overturning the law, what would we think of this? Not much, and rightfully so. A district court judgment is just flatly not sufficient reason to overturn an act of Congress.

Sullivan on "elected tyranny"

Permanent, universal and secret powers to detain and torture people using the full force of state power strike me as inimical to the Western experiment in human history, or indeed to any society that prizes freedom. The fact that arguably the leading conservative intellectual in Washington, Charles Krauthammer, has openly supported the power of the president to torture solely on his own discretion and minimally if it could save one single life reveals how much contempt the current right has for individual liberty. This argument, mind you, is not even made retroactively; it is being made proactively - and the Bradbury memo outlines an ongoing permanent torture apparatus at a president's disposal.

There comes a point, in other words, when the executive's legitimate power to act in an emergency to save lives morphs into a de facto re-making of the constitution to grant the presidency the powers of a pre-modern monarch - subject solely to the voters' four year "moment of accountability."

To my mind, this is an elected tyranny. And the first Americans would gladly have lost a few cities - and countless lives - to resist it.

Sullivan also posts this picture of John Walker Lindh, and quotes from a reader's email:

The first American to get Abu-Ghraibed, long before Americans knew they were capable of such an exotic verb. The first to inspire Donald Rumsfeld to issue the order "Take the gloves off," and the first to be on the order's receiving end. The first to be denied medical treatment, the first photographed naked and bound, the first taunted while blindfolded, the first--certainly the first--to have SHITHEAD scrawled on his blindfold, the first whose digital photos made their way round the world as souvenirs, the first denied access to the Red Cross, the first to be ushered into a legal limbo created ex nihilo by the administration's notions of executive power...

John Walker Lindh was blindfolded and duct-taped naked to a stretcher in Afghanistan. He was being held in a shipping container, and he had a bullet in his thigh, and by the time an FBI agent interrogated him, the bullet had been in his thigh for nearly two weeks and the wound was starting to stink. "Of course, there are no lawyers here," the agent told him, and two days after he gave his statement, he was moved to a ship in the Arabian Sea and the bullet was finally extracted.

The point here is not whether Lindh, or anyone else held by American forces, did something deserving of prosecution and punishment; it's up to the courts to decide that by means of a fair and open trial. Rather, the point is all about barbaric punishments and torture, which are both illegal under our own laws as well as revolting to a civilized mind; AND the unlimited, unrestrained power of the government to apply any or all of the above to you or me - in secret, without limit - at any time, for any reason, on the mere whim of the President.

Violence in wartime or peacetime must be met with force, and lethal force if necessary; and evildoers must be punished. But, as every schoolchild on a playground knows, there is a sadistic streak always lurking in the shadows of human nature, ready to lash out if absolute power gives it an opening. That is why we have a Constitution, a Bill of Rights, and a long tradition of the rule of law, not of men, and not of kings who answer to no one and recognize no limit on their powers.

Bush, Cheney, Rumsfeld, and all that criminal crew unleashed that beast, in the name of us all; if we do not utterly repudiate and exorcise that shameful thing from the halls of the Republic, a new Dark Age will surely come, and a worse one than has ever been known, "made more dark and more sinister by the lights of a perverted science" - to use Churchill's famous phrase.

Don't think it can't happen here. Don't think it can't happen to you. It very easily can, as a little reading of history will show. "The price of liberty is eternal vigilance" - a phrase of Jefferson's often quoted by military minded folks, has a particular relevance to our own day, after Bush and his cronies have proved what depths of moral degredation people of their ilk are capable of reaching when they attain the heights of power.