Linked are two resolutions adopted by the San Francisco City Council on March 21st.

Resolution condemning pro-life rally: " WHEREAS, It is unfortunate and alarming that those who are against reproductive and homosexual rights, and who are anti-gay as well as anti-choice, aim to negatively influence the politics of America's most tolerant and progressive city;"

Resolution urging Cardinal to change religious position

Catholic advocacy group and two local Catholics are suing the city and county of San Francisco, Supervisor Tom Ammiano and Board of Supervisors President Aaron Peskin, claiming they violated the U.S. Constitution by condemning the Catholic church's position on adoption by same-sex couples. - SF Gate
...
They claim the city violated the First and Fourteenth amendments by breaching the separation of church and state with a March 21 resolution that "sends a clear message to plaintiffs and others who are adherents to the Catholic faith that they are outsiders, not full members of the political community ..."

Question for debate:

1) Does the first constitute an attempt at censorship or will it have a "chilling effect" on free speech and free assembly?

2) By declaring the rally IN ADVANCE to be an "act of provocation", does the City open the door for overzealous law enforcement response?

3) Does the second constitute an violation of the free excercise of religion?

Both resolutions have no legal force whatsoever, as far as I can tell. They both seem to be statements of opinion. Personally, I think both resolutions are rude in their language, and neither one is necessary, but I don't see any Constitutional violations here.


1. No censorship that I can see; the pro-life group will be allowed to hold its rally, as is proper. As far as a "chilling effect" goes, I'm not sure how a statement that says nothing more than "we don't like you" could have such an effect on any group with any degree of true belief in its position. As I have said, I think this resolution is a bad idea, and is rather nasty in tone; but it does nothing against free speech.

2. I don't see this. If there is any evidence at all that the pro-life group is not treated fairly by local law enforcement, as any other group holding a legal rally would be, I would condemn such behavior on the part of the city as strongly as possible. As of yet, I see no such evidence.

3. Although this resolution is also rude and not necessary, it does not seem to violate the religious rights of anyone, or prevent anyone from expressing religious opinions freely.

1) Does the first constitute an attempt at censorship or will it have a "chilling effect" on free speech and free assembly?

3) Does the second constitute an violation of the free exercise of religion?

Let's see, a local government is not allowed to permit a gathering of certain religious groups on public property or allow the display of certain religious symbols for fear of "promoting" that religion but when the same government actively denounces such a group's actions it isn't the same?

Of course it is. If the government can promote a religion merely by allowing it to gather on school property then it can "un" promote it by actions such as this. If there is a wall of separation, the separation should go both ways (unless somebody actually broke the law).

Both of these instances are gross examples of a government attempting to influence religion. Quite frankly, it's sad that the government of San Francisco does not understand that even Christians have a right to "influence politics" even in "America's most tolerant city". Tolerant to those that agree, I guess.

2) By declaring the rally IN ADVANCE to be an "act of provocation", does the City open the door for overzealous law enforcement response?

I don't think so. Provocation does not always justify response and I think most governments understand this.

1) Does the first constitute an attempt at censorship or will it have a "chilling effect" on free speech and free assembly?

I don't see how. It is not a legally binding piece of legislation (as Victoria pointed out), it is simply an official statement indicating that "the rally on the front steps of City Hall should be taken by no one as an official or semi-official sanctioning of their rally nor of their message by the elected officials of San Francisco". Had the City Council actually denied "Battlecry for a Generation" the right to assemble, this question might be valid. They didn't and it isn't.

2) By declaring the rally IN ADVANCE to be an "act of provocation", does the City open the door for overzealous law enforcement response?

I don't see how. Besides, as we saw at the Republican National Convention in New York, overzealous law enforcement doesn't need acts of provocation (whether declared in advance or not at all) to start locking people up in private prisons without charges or access to legal counsel. I seriously doubt that the law enforcement officers of San Francisco will arrest anyone unless they are actually breaking the law.

3) Does the second constitute an violation of the free excercise of religion?

Not so far as I can tell. Again, there is nothing binding in this resolution. The City Council is simply urging the Cardinal to withdraw his "attempt to negatively influence" the city's "existing and established customs and traditions" and condemning his "hateful and discriminatory rhetoric". They are not saying he doesn't have the right to publish his bigotry.

Suppose another religious leader were to issue a statement regarding the innate inferiority of blacks based on the notion that all black people are descendants of Ham. Ham, he might argue (though not on the basis of existing scripture), was cursed due to his sin against Noah and his descendants were therefore destined to be slaves. And suppose this religious leader then urged the churches of a certain city to excommunicate all of its African-American members and enslave them. Would we be decrying any official condemnation of such as statement as a violation of the free excercise of religion? I doubt many of us would. If a City Council prevented a racist religious leader from making such a statement, sure. But if they merely condemned the sentiment? I don't think so.

I would call the one resolution a form of "prior restraint." And, yes, the prior restraint does indeed come in the form and shape of condemnation by the very authority that one must go to in order to obtain the required permit, i.e., come to us for the permit, but know that we will roundly condemn you for doing so. If it helps, think of what it would be like to have to go the doctor knowing that all the while you are in the examining room, the doctor will be berating you with respect to matters which are none of her/his concern. How often would you go to the doctor in such circumstance? And so why apply for the permit when you know that as soon as you do, it's WHEREAS....

And where is the outrage from the "liberal" "left"? I mean, if a denominational prayer risks coercing some to not join another faith, or have no faith at all, I don't suppose that condemning a faith risks coercing some to not join that faith? Which brings me to:

"Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors"

Pot, meet Kettle. And so I suppose that in this regard I will again have to use my favorite phrase or two for the last month or so, to wit, some are indeed zealous for us, but not well, as they only desire to shut us out so that we might zealous to them...

And for a freebie, the most ridiculous statement ever uttered by a human:

"Same-sex couples are just as qualified to be parents as are heterosexual couples."

Yeah, and that's why they cannot have a child of their own...

And speaking of "foreign meddlers," maybe the SF Board could pass a resolution roundly condemning the US based Planned Parenthood from meddling with Columbian laws relating to abortion. And speaking of "foreign meddlers" a little closer to home, I'll also be waiting for that resolution roundly condemning the illegal aliens who marched and protested rather recently in several major cities, including SF.

And time to switch from Freedom Fries back to French Fries, given that the French National Assembly Report on The Family and The Rights of Children rejected same-sex marriage as a healthy environment for children.

And closer to home, the rebuttal to the claim that lesbians make wonderful parents:

"Drexler refuses to see obvious indications that the boys she interviews need fathers. When one of Brad’s two moms picks him up from the daycare center after work, every day she has to pry the six year-old off of the leg of an after-school worker named Ron to whom Brad is—pun intended—quite attached. A less determined researcher might see this as evidence of Brad’s need for a dad. Not Drexler, who instead tells us that, given Ron’s presence, Brad’s mom “knew she didn’t need to worry about Brad’s lack of an everyday father in his life.”

Julia’s little boy says “I want a daddy.” Darlene’s little boy tells his mom “we could find a daddy and he could move in with us.” Three year-old Ian--fatherless by the decision of his “single mother by choice” mom Leslie--watches TV with mom, continually pointing at male figures on the screen and saying “there’s my daddy.” Leslie explains “no, we don’t have a daddy in our family,” but little Ian doesn’t get it and continues to point and ask. A problem? Not according to Drexler, who writes “Will some little boys trail after men they don’t even know, perk up at lower-decibel voices, or hang on to the pant legs of the men who cross their paths? Maybe.” But whatever it is, she assures us, it isn’t father hunger.""

Please see:

http://www.glennsacks.com/raising_boys_without_ev.htm

Anyone who has been around a few kids who didn't have a "dad" in their life knows exactly what Glenn Sacks [and I] are talking about in this regard. We aren't saying that you are inherently evil or otherwise unfit to parent by mere disposition, only that a child needs both a mother and father, and not merely a mother, and not merely a father, and not a mother and a mother, and not a father and a father...and to the extent that more than a few of the SF Board are Catholic homsexuals who are none too pleased with the official position of the RCC respecting homosexuality, all I will otherwise say is that one must, whenever possible, put the child's needs before one's own, and to get Biblical [since they claim to share the faith], see that you do not despise any of these little ones, for I tell you...

From here on, your post is off-topic and immaterial. If you want to debate same-sex parenting, please take it to the appropriate thread. To do so here is unfair as no one can respond without themselves violating the rules.

1) Does the first constitute an attempt at censorship or will it have a "chilling effect" on free speech and free assembly?

No, and no, It does not prohibit anyone from doing or saying anything, and therefore it is not a threat to freedoms of any sort.

The real question is, is it unconstitutional?

Essentially, I believe this all boils down to whether or not the Cities statements can be considered as being secular or not, which in essence they can be. The statements criticize the pro-life and anti-gay marriage movements, but do not directly oppose a religion.

As a resolution, the Northern California ACLU chapter may laugh at a potential client. I don’t like the resolution, but secularist and religious idiots will both be idiots. Where is the corresponding conservative outrage when city councils pass pro-religious resolutions? Is the problem here that pro in front of religious is the only acceptable prefix when a government body decides to pick a side?



Government bodies should not pick sides at all.

Does the first constitute an attempt at censorship...
How can it censure without the force of law? If a resolution had the force of law a judge would issue an injunction before the rally and the “law” would be overturned.

...or will it have a "chilling effect" on free speech and free assembly?
This may be a possibility if the city council bothers to follow up by showing up with a greater-than-needed police force. Quite frankly, I think my college will see more cops on horses at the next African American Heritage Festival than pro-life rallies in San Francisco will get to see in ten years.

By declaring the rally IN ADVANCE to be an "act of provocation", does the City open the door for overzealous law enforcement response?
A resolution is not a necessary rhetorical device to prompt overzealous law enforcement. Columbus doesn’t need a resolution stating black students are a danger to society to justify passing a law that states it is legal to be black.

Does the second constitute an violation of the free exercise of religion?
No, although I think it is as inappropriate as stating the U.S. is a Christian nation by default. Had the city council just left it at “we condemn the idea that gays shouldn’t be able to legally adopt children blah blah blah” I wouldn’t be uncomfortable with it.

And yet, Christian conservatives have absolutely no problem with a judge who not only places the 10 commandments prominently in his court room, he then lays a 2 ton monument to same on the courthouse steps.

If it helps, think of what it might be like to have to go before such a judge as a Jew, Muslim, Buhdist or athiest, knowing that the judge may well be judging you, with the force of law behind him, with respect to matters which are none of his concern. How often would you want to go to court, even in matters that you may be legally right on, knowing that as soon as you do, your religious beliefs, if known or discovered, could ruin your chances?

None of these City Council "proclamations" have any force of law, unlike judges. There is no "prior restraint" here, because the council is not "restraining" anything. Hey, they don't like my position on something, and issue a procalmation saying so after I apply for a "rally permit"? More power to them. They can't stop me from getting the permit, can they?

Can a judge however, stop me from doing something? Or find some other way to cause me or my organization harm? You betcha.

Do I think that the City Council is right to make these proclamations? Absolutely not. I'd rather that they spent their time actually dealing with the problems of the City, instead of berating this group or that for their stance on some peripheral issue. And as a citizen of a city that does make these kinds of proclamations I've worked to vote out those on the board that approve this kind of tripe. I consider it time wasted on a futile excercise. But harmful? "Prior restraint"? Please.....

How can you say this? The one statement basically asks the Catholic Church to discipline its clergy.

A wall of seperation, if such a thing exists, must exist in both directions. The state can neither encourage nor discourage religion, at least that's what the thinking is.

These statements clearly are negative towards religion.

If San Diego is forced to remove a cross from a 50 year old Korean era war memorial because it encourages religion, how can we not see that this is just as discouraging towards religion?

I'd like to point out that the First Amendment encompasses more than just the freedom of religion. The first condemnation certainly violates the spirit of freedom of expression. As a government action, condemning a group for attempting to influence the politics of the city via perfectly legal means?

As for the second one, it boils down to this: "We, the government of San Francisco, want you to practice your religion differently. We want you, Catholics of San Francisco, to behave according to our definition of what your religious ethics should be, rather than that of your church."

Let me say here that I agree with Amlord that the wall of separation of church and state can and must work both ways. If any government agency were to issue any official opinion promoting atheism over theism, for example, it would be an utterly evil act and clearly unconstitutional.

Let me say also that I agree with NiteGuy that issuing these resolutions was a bad idea and a waste of time. If anything, they help pro-life and anti-gay forces by allowing them a tiny bit of low-budget martyrdom.

However, I do not see that either of these resolutions, as inexcusably intemperate as they may be in their language, expresses an opinion against a religious belief. They do, indeed, express opinions against political beliefs; being pro-life and anti-gay, despite what some may say, are not synonymous with being a Christian. Nowhere do these resolutions state that the city disapproves of any branch of Christianity, or any other sect. They condemn the political opinions of one organization (which is not a church, as far as I can tell), and the actions of one individual concerning a political issue.

By what yardstick do you decide what is a political issue, and what is a religious issue? And more importantly, by what authority do you claim to be able to make that decision for somebody else?

Perhaps you should read the second resolution a little closer. The San Francisco Council has decided that it knows better than the Roman Catholic Church what RC doctrine should be...

Cardinal William Levada is the Prefect of the Congregation for the Doctrine of the Faith. Today, according to Article 48 of the Apostolic Constitution on the Roman Curia, "Pastor Bonus", promulgated by the Holy Father John Paul II on June 28, 1988, «the duty proper to the Congregation for the Doctrine of the Faith is to promote and safeguard the doctrine on the faith and morals throughout the Catholic world: for this reason everything which in any way touches such matter falls within its competence.»

Cardinal Levada replaced the last Prefect, a fellow by the name of Joseph Alois Ratzinger, who left to take another job... perhaps you've heard of him?

A political issue involves the entire population, wheras a religious issue involves a congregation, the individuals of which subscribe to a particular creed. As far as having the authority to make a political decision for someone else, that is how representative democracy works.

So if the RCC doesn't like the way SF government works, preach about how to vote to the congregation. Otherwise, it isn't the church's business. Has anyone told these people that the Holy Roman Empire no longer exists?

When talking about making political decisions for someone else, the church structure is certainly guilty of this. Hey, vote this way or tick off God. I think that's a pretty big stick. It happens to be a sin of pride too, and probably a bunch of others having to do with power.

The RCC better watch itself. It is rapidly becoming a taxable political entity. Dobson of Focus had to do another organization to pull its political strings, and the RCC will likely need to to the same thing. Can't serve two masters, eh?

Lesly:

I agree with you almost wholeheartedly re the taking sides. The only exception that I would make would be with respect to Deity Itself [as it were]. And that only because as I said, and as some guest author on either the Daily Show or the Colbert Report said, our Declaration of Independence reports that these certain unalienable rights are endowed by our Creator, which operates to lift them out of our more temporal sphere and beyond the reach of government and the state [I believe that the guest author contrasted the same with the former USSR, reporting that in such state, one's rights were given by the state (and thus could be taken away by the state)].

I don't otherwise have a problem with the SF Board passing resolutions respecting its position with respect to suitable adoptive parents. As I trust you know, the argument ad hominem is an attack on the messenger and not the message, and the SF Board could have saved all concerned the argument ad hominem and simply stated its position and reported that the alternative[s] were discriminatory in its view. That would have been attacking the message and not the messenger.

The SF Board otherwise acted in the manner of the spoiled child who cannot get all concerned to agree to play the game by its rules. And so it threw a tantrum in response. Let me put it this way, if the SF doesn't like the position then don't give money to Catholic Charities, or condition the grant on certain conditions, which would then leave it up to Catholic Charities to decide for itself whether it can adhere to such conditions in all good conscience.

Now back to resolutions and taking sides, no need for me to pass or otherwise be in favor of any resolution concerning God, since the document I mentioned prior, the Declaration, speaks for itself in that regard [and I cannot otherwise help but think that it reads such as it does precisely owing to the consideration discussed above].

And, lastly, re resolutions, if you want me to condemn the resolutions you mentioned, I have no problem in doing so. And don't give me too much credit on this one, since the interest is primarily in self, i.e., I value freedom of conscience and religion as much as anyone else and maybe my brand of Christianity might be viewed as more than a little heretical by some. That's not the total explanation/justification, but hard for me to claim that I am not motivated at least in part by a matter of self-interest.


NiteGuy:

It is a prior restraint. And in contrast to your remark, the restraint is, again, precisely in the reality that they can stop you from getting the permit by subjecting you to such insult, opprobrium, and/or ridicule in connection with your request for the permit such that you are dissuaded from even applying for the permit in the first or next instance. To take a related notion, ever hear of the rape shield law? None of the questions that I might ask the complaining witness on cross-examination has the force of law and does not otherwise operate as a form of legal coercion, but give me the opportunity and/or ability, and I can sure as heck make it rather uncomfortable for Ms. Roe and/or Mr. Doe, such that she and/or he might not want to testify during the trial of her/his/their [purported] assailant. So we have the rape shield law because we know that people can be coerced into not asserting their rights, and in this instance, simply because they may not want their sexual history disclosed to the world. Is your sexual history any worse than the history of the Office of Inquisition? Never mind, since we just established that the law already recognizes that coercive forces that lack the force and effect of law can indeed dissuade one from exercising rights that are theirs. And that's where the prior restraint comes in.

And for an example that every attorney is likely to be aware of, there is also the related matter of an attorney's speech. What do you call it when the appropriate disciplinary authority exercising its jurisdiction over an attorney, while not imposing "discipline" on the attorney, nevertheless "warns" the attorney respecting her/his speech? Is that a prior restraint? And once the warning is made, do we expect each and every attorney aware of the warning to pay more attention to one's speech, and maybe in certain instances, it is the warning, and only the warning, that leads to the attorney's decision to not speak at all and/or say something that does not truly reflect her/his opinion/thoughts on the matter? And suppose the matter or subject in question concerns the public interest? And by public interest, and this also goes to what I will be relating to Wertz below, what if the subject matter in question is entry of a protective order which has the effect of depriving a mother of custody of her children in favor of some third party? And what if the protective order itself provides, in preprinted language on the court's own preprinted protective orders, that the order concerns "the minor children of the parties"? And what if the speech in question is, it seems we've now hit an all-time judicial low, in that the family court apparently cannot recognize that these children simply cannot be "the minor children of the parties" given that the one petitioning for the protective order is the sister of the mother whose children's custody the petitioner wishes to place in dispute? Or as I put, before I was warned, it seems that our family court has forgotten that two females cannot procreate and have a child. But heaven forbid that one bring the judicial system into disrepute, even when such is deservedly so. And as to why the warning, simple, the appropriate disciplinary knows that I know of the applicable controlling federal law [since I cited to the same in my responsive documentation]. The appropriate disciplinary authority also knows that should "discipline" be imposed, that I will avail myself of the appropriate federal forum such that I might preserve rights guaranteed me by the Constitution of the United States of America [all to the rather acute embarassment of the appropriate disciplinary authority]. And so the appropriate disciplinary authority did the next best thing, it warned me. Now I have to decide whether I wish to place myself in jeopardy by making further comment that is critical of the judiciary. Of course, I suppose that the disciplinary authority in question thinks much like you, since they apparently don't know that in waiting on my hard drive is my complaint for declaratory and injunctive relief, to be filed in the appropriate United States District Court, wherein I will be asking, among other items, for the US District Court to declare that the "warning" does indeed constitute a prior restraint [the declaratory relief part] and issue the appropriate injunction prohibiting the same [the injunctive relief part]. Oh, and for a last freebie, it now seems that in addition to the family court, we can add the SF Board of Supervisors [since they too seem to believe that two same sex humans can be "parents" of the same children].


Wertz:

There's nothing to debate and so I need no other thread. I would otherwise ask that you simply recall our philosophical construct and the English words that it gives rise to, to wit, parent[s], father, and mother. And so we have the male who deposited the semen and the female who was gracious enough to provide a vaginal canal in which to deposit that semen [and some much needed friction as well, but I digress...]. We call her, mom, him, dad, and either/both of them, parent[s]. And because I don't want to live in Orwell's Oceania, I don't want to pretend that mom, dad, and parent[s] are anything but what they are in both our construct and the language said construct gives rise to. As I've otherwise related above, I am further aware of the rather grievous injury that may very well attend the attempt at so doing [and I'm not referring to me being warned, but the legally-illiterate [as it were] mother who was not aware that the family court has no jurisdiction in a protective order proceeding to address the matter of custody of children unless the petitioner and the respondent are the two persons who gave rise to the children in question and so she went almost two years without seeing her children].

Oh, and back to a point I made above re just where our rights come from, well, section 577-3 of the Hawaii Revised Statutes provides, in pertinent part, that the father and mother of an unmarried minor child are jointly the natural guardians of the child's person and property. As you can see, the father and mother are concerned with the biology of it, while the "guardian of person and property" embodies the legal [as it were]. But for the confirming point, please kindly note the express legislative declaration that the rights in question were not bestowed upon mom and dad by a beneficient and englightened state but are instead their by nature. So I am more concerned with the notion of "adoption" itself [i.e., as currently legally defined] and not so much with just who we are going to pretend is this child's father and this child's mother. Now if you wish to simply report that for some reason, say death of the parents and/or parental unfitness, we must vest some other human or humans with the guardianship that naturally belongs to mom and dad, then there's no dispute from me [well, at least if mom and dad are truly unable for whatever reason to exercise the guardianship that is naturally theirs and we have otherwise found suitable interim guardians to act in their stead].

1) Does the first constitute an attempt at censorship or will it have a "chilling effect" on free speech and free assembly?

No. A condemnation does not prevent the free speech and free assembly. And despite what some would say, this will not have a chilling effect. Anyone, especially right-wing fundamentalist groups, are not going to allow a condemnation to prevent them getting a permit from the city. If it were me and the city was condemning my constitutionally protected actions and say give them a big, "who cares!" and get the permit.

Amlord's comparison between allowing religious groups to gather and this condemnation is ridiculous. The two are in no way the same. The same would be if the city prevented this group from assembling. There is no violation of the 1st or 14th Amendment whatsoever... not even in spirit.

3) Does the second constitute an violation of the free excercise of religion?

Of course not. The city does nothing but urge the Cardinal to withdraw the discriminatory directives. There are no repercussions if he doesn't withdraw them. And nowhere, absolutely nowhere in the resolution is there any call for the disciplining of the clergy. Can someone please point out for me where this type of language is in the resolution– Amlord? It simply isn't there.

KivrotHaTaavah

Your Rape Shield Law comparison is flawed. There is no coercion in the resolution. As for the rest of your statements. All I can say is: cha-whuh?! What are you going on about? We have no access to this "case" of yours... how do you expect anyone to engage you in debate without having access to the facts. Perhaps you are venting? If that is the case, you should find the appropriate forum to vent... this isn't it.

I don’t know why you bring up the Declaration of Independence, a historical document that lacks the force of law. The Declaration is often mentioned because there is no Deity, God, and Creator to be found within the supreme law of the land. I don’t think it was a lapse of judgment on the part of the Founding Fathers to avoid acknowledging a religious belief system in the Constitution.

As for the bold section if you want to believe that God or some higher power in fact grants inalienable rights, that’s your prerogative. Though if you ask me, if God was directly involved he’s turned out to be a lazy SOB, as acknowledging them and protecting them is up to the whim, prejudices, and judgment of men. If you believe the Declaration validates your beliefs ("…no need for me to pass or otherwise be in favor of any resolution concerning God, since the document I mentioned prior, the Declaration, speaks for itself in that regard…"), more power to you. It’s a step above religious fundamentalists who believe their eternity in heaven will be snatched away if they fail to put their convictions on display, even when those convictions clash with other beliefs and non-beliefs.

The Declaration is indeed part of US law. in 1878, Congress approved a new version of US Code and included 4 documents as part of the Organic Law of the United States - The Declaration of Independence, the Articles of Confederation, the Northwest Ordinance (which states that one reason for public schools is so that students can 'learn religion'!!!) and of course the Constitution. Here is a book on the subject - The Four Pillars of Constitutionalism. The author argues that we should use these texts for guidance, rather than relegating them to historical analysis.

As for these idiotic resolutions, I have no comment as to their chilling effect, violation of rights, etc. I just wonder why city councils can't just govern cities. In Chicago, our rubber-stamp council just banned foie gras. One after another of the mayor's aides are being indicted for corruption, 300,000 illegal aliens just clogged traffic for a day, and the geniuses in the Chicago City Council banned goose liver. Idiots.

Perhaps an informed electorate in all of these municipalities can ask their representatives where they get the authority to pass such resolutions. It sure ain't from their Creator.

Announcing independence from an existing government is an act of rebellion. It’s not an affirmation of previously held laws, nor is the document in and of itself sufficient to create new laws. It may’ve been inducted into USC 89 years after the Constitution took effect, but lawyers and SCOTUS have been reluctant to recognize violent rebellion as one of our inalienable rights for the sake of keeping the union intact.


Guidance? I can give it a whirl in a philosophical sense. Interpret as law? No way. We did not need to acknowledge a Creator played an integral part of our legal system to enforce ludicrous fines and customs that abused the public trust and sometimes cost dissenters their lives. I like Separation of Church and State, thank-you-very-much. We aren't more socially advanced or tolerant than our forefathers were when the right to enforce their religious prejudices was an accepted practice.

entspeak:

There isn't any coercion inhering in my cross-examination of the complaining witness in a rape case either, at least not in the strict legal sense. The coercion however does inhere in my potential subjection of the complaining witness to my insult, opprobrium, and/or ridicule, and so, having been properly advised, she might well decide to forego testifying and thereby save herself from the anticipated insult, opprobrium, and/or ridicule. Again, that is why we have the rape shield law. The SF Board can otherwise do what I have described as well as I can [I don't claim to be singularly unique in this regard]. But unlike the SF Board, I do not exercise governmental power. And to not leave out a point I probably should have included prior, no matter whether one might win in the end, since the mere expense of obtaining the appropriate redress [in terms of both time and money] may very well result in (1) a rather Phyrric victory, which might (2) cause me conclude that it might be better to change my behavior rather than undergo another Phyrric victory. The other side can call it a victory by attrition [i.e., they didn't win by winning, they won by wearing me down and so I quit the game and otherwise said, I surrender].

As concerns facts, what facts do you need? I gave you all that is necessary to properly understand the issue. Perhaps the difficulty lies in your not having my familiarity with the matter of "prior restraint." I was otherwise only offering my own circumstance as a further example, and no "venting" was intended or involved.

Perhaps this will help [ http://www.leg.state.nv.us/CourtRules/SCR_RJEEP.html ]:

"REVISER’S NOTE.

DISSENT TO PROPOSED RULES AND PROCEDURES FOR THE STANDING COMMITTEE ON JUDICIAL ETHICS AND ELECTION PRACTICES

I am opposed to the creation of an arm of this court that will presume to be the ethical arbiter for “judges and aspirants to judicial office” in political campaigns and in “ethical matters that may arise in the ordinary course of judicial service.”1 I oppose the scheme principally because it poses a threat to political free speech and because it intrudes upon the constitutional functions of the Nevada Commission on Judicial Discipline.

The court creates a “standing committee,” whose duty it is to tell judges what is right and what is wrong, or, as it is put in the rules, to render “opinions regarding ethical matters.” The insinuation is that judges are such moral dwarfs that they are not capable of making ethical judgments on their own—especially in political campaigns. It has been my experience that judges are morally competent and that they are as capable of making moral judgments as are any of the amateur ethicians who will comprise the court’s morals committee.
***
Having summarized my position in this matter, let me now state, as concisely as I can, three specific objections to the creation of another, court-sponsored body having extra-constitutional powers in the field of judicial discipline and ethics:

1. The Rules are constitutionally suspect. The court’s plan to issue ethical proclamations (through its “standing committee”) that advise judicial candidates that their campaign practices are not ethical or “proper” is, on its face, dangerously close to being an infringement on a candidate’s right of free speech. I realize that there is no provision in the rules for the court’s actually censoring candidates’ political statements or for ordering them to cease and desist; still, authoritative ethics declarations by the court (through its morals committee) proclaiming that one or another candidate’s political campaign is not “proper” is, in my view, a “chilling” prior restraint on a candidate’s right to freedom of expression during a campaign.
***
3. Aside from being constitutionally suspect and unnecessary, the morals committee scheme is unworkable. I do not like what I see when I look at the morals committee and how it is supposed to work under the newly-adopted rules. The gist of these procedures is that the morals panel is empowered to conduct secret morals trials. The procedure is that an offended candidate may file a complaint with the committee’s “executive director” (truly); then, if the charged candidate denies that her or his “actions” are morally unacceptable to the committee’s ethicians, the matter proceeds to a trial at which the accused is “invited to attend.” The trials are private, and all concerned are forbidden to make “any public reference to the fact that the matter is pending before the committee.” If the accused is found guilty of ethical infractions, the committee has the “authority to impose sanctions.” The only sanction mentioned in the rules, however, is that of publishing the results of the morals trial."

Does that help? As you can see, admittedly, there is no provision in the rules for the judicial candidate's speech actually being censored or for the judicial candidate's being ordered to cease and desist, still...still, maybe a judicial candidate foregoes speech because he/she doesn't want to run the risk that the results of some "secret trial" will be made public should the amateur ethicians decide that he/she is indeed a moral dwarf...

And for a further aid, simply picture the SF Board creating a "morals committee" for permit applicants along the same lines as that apparently now in place with respect to judicial candidates in Nevada. Once you've done that, simply consider that the SF Board skipped the "morals committee", excuse me, appointed itself as the "morals committee", rendered its verdict, and has now made the results public via the resolutions in question. Justice Springer and I simply believe the same to constitute a prior restraint on speech.

Now on to the mob. Ever wanted to be a mob lawyer? Why not? Is it because you don't like the mob and/or you don't wish to associate in any manner with those you consider "unsavory"? Or is it because you know that the federal government goes after the mob by going after their lawyers, and though you've done nothing wrong, covert surveillance and tax audits [one after the other] are not your proverbial cup of tea and you can otherwise earn a handsome living attending to other persons who have their own legal problems?

And back to "warnings" and "chilling effect[s]", please, lastly, see:

http://www.rcfp.org/news/1996/0715c.html

Sorry, one more. Something else that I probably should have made clear prior. You do know that the permit process itself is a form of prior restraint, yes? And we view that form of prior restraint to be reasonable because it is supposed to be "content neutral." Tell me, what was content-neutral about the resolutions in question? And did those resolutions turn the purportedly content-neutral permitting process into something not so content-neutral? As the US Supreme Court has otherwise already said, even nominally content-neutral and otherwise reasonable time, place, and manner restrictions can inhibit and stifle speech. And I would lastly submit that it's not that far a walk from my reading of a prior restraint here and that involved here:

http://www.gannett.com/go/newswatch/2005/april/nw0429-4.htm

"Perhaps the most helpful aspect of this decision is Justice Kennedy's observation that the First Amendment's protections are not limited to formal prior restraints such as court orders that explicitly bar the news media from publishing or broadcasting. Threats of prosecution by government officials also can chill speech to the point that they constitute an unconstitutional prior restraint."

Yeah, and knowing that you will be formally insulted and ridiculed whenever you choose to apply for a permit may very well have that same chilling effect. And, ent, it is precisely because the SF Board knows that it could not ultimately prevail in a contest over a permit denial that it chose to do what it did. As I said, call it the next best thing to outright prohibition.


Lesly:

Yes, that One is "lazy" and so we have that old adage about how the Lord's work must truly be our own...And the matter may not be of import to you, but it has some rather enormous implications when one considers our philosophical construct. As the noted guest author reported, well, reported and implied, rights given by God cannot be taken away by men, while rights given by the state can indeed be taken away by the very state that gave them.

Kiv,

In virtually all your examples, there is adverse consequence associated with continued action.

Rape case: testify – open yourself to insult and ridicule... humiliation.

Morals committee: run for office – publication of the results of a morals trial which could adversely effect the campaign. (adverse result) And, by the way, I saw nothing in that example indicating that Justice Springer had anything to say about the SF Boards actions... so, I don't think you can say, conclusively, that you and Justice Springer agree regarding the SF Board's resolutions.

Ethics commissions gag order: speak publicly – pay a fine.

First Coast News: publish testimony – criminal prosecution.

Now, in the case of the SF Board resolutions what is the consequence associated with assembling? Assemble on the steps of city hall and have the city government publicly distance itself from the proceedings and condemn the views of the group as being counter to the views held by the city government in regards to rights of homosexuals... a woman's right to choose? They rallied on the very steps where the city granted marriage licenses to gays. The symbolism of holding the rally there was not lost on the group whose invitation mentioned that the rally would occur on "the very City Hall steps where several months ago, gay marriages were celebrated for all the world to see." They were going to make a very intentional statement about the SF city government's support of gay rights by showing up on the steps of City Hall that day. The City saw that very intentional act as one of provocation, considering, and condemned that act.

It should be noted that the SF Board did not condemn the group's main gathering that was scheduled for four hours later at AT&T Park, in fact there is no mention of that gathering at all in the resolution – only the rally scheduled to occur on the steps of City Hall.

There is no prior restraint in this case. So while you have shown that there was prior restraint in the examples you provided, you have not shown that prior restraint exists in this case.

KHT and Carlitoswhey,


I think the Declaration of Independence, The Northwest Ordinance and The Articles of Confederation are irrelevant to this discussion.

There is a thread on the Declaration as law that is still open. I think responses would be more appropriate there.

Declaration as Law Debate