Flag Follies: Has the military preserved the Bill of Rights?

Spurs head coach Gregg Popovich had insightful thoughts on silent protests during the National Anthem over police shootings.

But even he said this:

I don't think a condemnation of any sort of act should happen until it's thought out. For instance, with Kaepernick, a pretty good group of people immediately thought he was disrespecting the military. It had nothing to do with his protest. In fact, he was able to do what he did because of what the military does for us. 

Countless others have said something similar: We should be grateful to the military who gave us the freedom to disrespect the National Anthem and the Flag, 

By implication: the military has protected our First Amendment freedoms.

I must have missed it in history class, so I will ask: 

When? 

And how?  

Actually, most of America's wars have been fought on foreign soil against nations that had neither the desire nor the ability of conquering us, let alone censoring us.

And the reality is that the military has not protected the First Amendment. That's because the threat to it does not come from foreign "enemies."

Think of other provisions of the Bill of Rights...

It's not foreign enemies who've undermined the Second Amendment with thousands of federal, state, and local weapons laws; American politicians passed them.

It's not foreign enemies who've engaged in warrantless searches in violation of the Fourth Amendment: the Defense Department's own NSA does that.

It's not foreign enemies who use asset forfeiture laws to take our property without due process, in violation of the Fifth Amendment; our own police does.

It's not foreign enemies who detain terror suspects indefinitely, in violation of the Sixth Amendment; the military itself does that.

It's not foreign enemies who've inflicted cruel and unusual punishments such as lengthy sentences for drug offenses; Congress passed such laws.

The only clear and present danger to the Bill of Rights is our very own "government" that the military serves.

Do you really think the military can or will protect the First Amendment?  

Strange echoes and distorted proportions, endless strife and confusion

Peter Thiel apparently funded Hulk Hogan's lawsuit against Gawker, probably because one of its publications outed Thiel as gay back in 2007. 

If all of that's true, it plays out as exactly as described in William Graham Sumner's essay "The Solidarity of the Human Race." I still can't find a text of it online, but in 2003 I typed this excerpt for an essay at The  Partial Observer:

"Good never produces evil nor evil good. ...  It comes back to you again and again in strange echoes, in distorted proportions, in ghastly colors, with a whole train of weird offspring, bad passions, bitter memories, and endless strife and confusion."

How did this come about?

1. Gawker outs Thiel without his consent. He is hurt and bitter about the invasion of privacy.
2. Gawker shows a sex tape clip of Hulk Hogan without his consent, probably a reminder or "strange echo" to Thiel of what was done to him. 
3. Thiel, to settle scores, helps fund Hogan's suit against Gawker.
4. Hogan wins the jury trial and is awarded $140 million. The damages will likely bankrupt Gawker and seems to be a "distorted proportion" to the actual harm done to Hogan.

And now there's a debate as to whether this suit will have a chilling effect on journalism and freedom of the press. What can and can't be published? What's newsworthy? What's private? Who's to decide?

Hello "endless strife and confusion!"

I don't know if Thiel was right to hold a grudge, or if Hogan's suit was justified. Maybe there were other, non-judicial ways to hold Gawker accountable or settle grievances. Maybe Thiel and Hogan are adding on to the evil, which will have evil consequences down the road for other people.

But it does seem clear that Gawker outed Thiel and exposed Hogan to hurt them for its own profit.

Gawker may still have the legal high ground. But it had no moral high ground. If it wants to avoid expensive legal messes like this, it shouldn't do evil in the first place.    

Dislike of the First Amendment Isn't New

A recent poll indicates more Americans support than oppose laws against "hate speech," defined as "public statements which would stir up hatred against particular groups of people."

But it's not a majority; 41% are in favor and 37% opposed. That leaves 22% undecided.

It seems unlikely, however, that hate speech laws will be imposed anytime soon. If the courts protect the least sympathetic hate group of the 21st century, the rest of the haters are probably safe.

That said, the poll does raise concerns that so many dislike or are ignorant of their human right of freedom of speech as protected under the First Amendment.

But it's not new.

Consider laws against obscenity, which the Supreme Court said isn't protected by the First Amendment.

Or regulations on "commercial speech," which the Court deemed can be infringed in pursuit of a "substantial" government interest.

Not to mention campaign finance regulations, which inherently stymie freedoms of speech and the press by choosing how much one can support another's statements and writings.

What these three previous ongoing attacks on free speech have in common is common to all laws against non-aggressive activities in general and anti-First Amendment laws in particular: ambiguity and arbitrariness.

That's when the accused ends up in court without knowing that anything illegal was done.

• How could a pornographer know when the line was crossed into obscenity?
• How could a legislature know that an advertising law it passes advances a "substantial" public interest, or a "less substantial" one? How would a court know the difference?
• As the John Edwards case illustrates, a prosecutor may decide there's no distinction between a politician receiving gifts from wealthy friends, and donations specific to campaigns.

Likewise, hate speech laws are arbitrary and ambiguous. Would they apply to stereotypes said in jest? Derogatory words not said in jest? Using manufactured statistics to shed negative light on a group? Using factual but incomplete information to make a point about a group?

Wouldn't it be used as a political weapon by those in power against opponents?

And, does America want to go down the path of other countries, in which The State itself becomes the source of hate speech?

Consider many in Europe, who believe drawing satirical cartoons of Muslims is "hate speech" that can be banned, but then also deny Muslim women the right to wear face coverings.

If calling for "Burqa bans," targeted at the freedoms of a specific minority, isn't "hate speech," then what is?

In any case, even those deemed "not guilty" of hate speech will have been punished severely in time and expense of fighting the charge.

Meaning, the only "winners" of hate crime laws will be lawyers and judges.