Memories Pizza and the First Amendment

Over the last week, Indiana has experienced a political firestorm. Conservative legislators passed an expansive religious freedom bill, and our conservative governor signed it. Since then, you know the story: the NCAA, Angie’s List, Apple’s Tim Cook, and NASCAR have all voiced objections to the law. The Indiana Chamber of Commerce opposed the law before it was passed. Our governor ducked the “does this law legalize discrimination” on national TV several times in one interview, leading to his becoming the butt of late-night comedians’ jokes.

A new firestorm erupted yesterday when a small town pizza parlor in Walkerton, Indiana, caught the Internet’s attention when its owner said on TV that she wouldn’t cater a gay wedding because her religious beliefs don’t recognize gay marriage. While there have been plenty of voices of outcry and support, some of it has gotten ugly—threats to the family and the business.

This is wrong and should stop immediately.

Don’t misunderstand me. I disagree strongly with the owner’s religious-based point of view.

But she has a right to believe as she wishes and to even express those beliefs without fear of retribution. She has the right to say she wants to be able to discriminate legally.

Every one of us in the United States at one time or another believes something that may be wildly unpopular, even angering. Nevertheless, if free speech means anything it has to permit people to express views like the pizza parlor owner’s—and not have to worry about personal safety afterwards. The mob’s veto must never be allowed to silence free speech, no matter how distasteful or wrong it might be. As Justice William Brennan explained in the case of Texas v. Johnson, the answer to speech we don’t like is not restriction or mob veto. It’s more speech, with the aim of persuading the other person she is wrong.

Call the owner of Memories Pizza whatever you want: uninformed, bigoted, intolerant, stupid, anything. At the same time, please recognize that she has the right to her opinion and to voice it. You have the right to voice your opinion and persuade her she’s wrong, but you don’t have the right to use threats to force her to recant her views. That’s what fascists do. It would be unfortunate to meet intolerance with fascism. No one wins in that situation.

On corruption

We live in a corrupt society. Not necessarily in the legal sense—much of what some refer to as corruption is completely legal. The corruption we deal with is in the faith we have in our world.

  • A white police officer shoots an unarmed African-American man. After the investigation, the officer faces no charges or discipline.
  • A legislator votes against a particular bill that is overwhelmingly supported by her constituents yet opposed by her campaign donors.
  • A judge rules in favor of a party whose CEO has given donations to the judge’s election campaign.
  • A president appoints a barely qualified major campaign fundraiser to an ambassadorship.

Governments that do not maintain the faith of the people struggle and fail. In the old Soviet Union, it certainly did not help that the common citizen knew that the Soviet government’s propaganda was not rooted in the truth.

Today, it is hard to have faith in our government. The Eric Garner and Michael Brown deaths at the hands of white police officers have brought that lack of faith to the surface. Scores of communities were angered and disappointed when grand juries decided not to indict the police officers involved. Twenty some years ago, Los Angeles erupted in riots after a jury acquitted police officers who had used severe force against Rodney King—and their actions were captured on video.

I do not know the facts of each case that occupies us this year. It is possible that the officers in each case did nothing wrong. A good faith investigation might compel that result.

Our problem, however, is that we do not trust The System. If Officer Wilson had been indicted in Missouri, the police and their supporters would likely decry the indictment as an effort to offer a sacrifice to political constituencies. When the grand jury chooses not to indict Officer Wilson, some suspect that the prosecutor got the result he wanted.

Our system has been corrupted—not criminally, but in the root of the word: broken. If our nation is to thrive, we must find a way to restore our faith in The System. Campaign finance reform is one obvious solution (albeit politically difficult). How we rebuild the trust so that everyone has faith that investigations into wrongdoing is the bigger question. We may not find the answer, but we have to keep asking the question.

Facebook post gets Navy veteran fired

A US Navy veteran lost his job with a hotel in Missouri after he posted a few photos to his Facebook page. What was in those photos? A group of Department of Homeland Security vehicles. That were parked in the hotel garage. Apparently, the hotel’s security chief called the man “a terrorist.”

Legally, the hotel may be in the right if Missouri is an employment-at-will state. But the hotel looks dumber than a bag of hammers. The vans were in a public parking garage, visible to anyone driving or walking in the garage, and weren’t hidden in any fashion. How putting the photos up on Facebook amounts to an act of terrorism is…well…it doesn’t pass the giggle test.

As a civil libertarian at heart, what really bothers me about this incident is that the hotel is telling its employees, “If you do something legal that could make us look like we don’t support the Department of Homeland Security, you’ll lose your job.” This kind of economic threat can be used to chill the constitutionally protected speech of its employees.

It may be legal, but that doesn’t make it right.

John Boehner’s boneheaded idea

I usually stay away from directly commenting on political matters here, but because this involves the law I figure it’s fair game. This is a good teaching moment, actually. Misunderstandings about how the law works are rampant. I hope I can nuke one of those misunderstandings here.

We’ve heard recently that Speaker of the House John Boehner (R-OH) intends to “sue President Obama” for breaching his oath to uphold and defend the Constitution. As I understand it, the Speaker is upset that the President has used various executive orders to try to accomplish things when the dysfunctional Congress cannot. He’s also upset that the President has chosen not to enforce certain federal laws.

While Speaker Boehner’s rhetoric has been getting attention, his idea is woefully short on details. He hasn’t identified a single specific thing. Maybe he will later on.

The bigger problem here is that there may not be grounds for a lawsuit at all. This can be a hard concept to understand. We’ve all been outraged at times about something we’ve heard about. Sometimes we’ve even mused that we “ought to sue” whoever is responsible for the outrage. Before picking up the phone to call a lawyer, however, it can be wise to step back and look at the situation carefully.

Stand by me

The law requires that a plaintiff have what is called standing to sue. Standing can be a little hard to explain, but once you understand it then it’s usually pretty easy to figure out if a person has standing or not. The first part of standing means that the plaintiff has a sufficient stake in the controversy. In other words, does the plaintiff have a real interest in the controversy sufficient to create an issue that the court can resolve? Put another way, is this plaintiff the right person to bring the lawsuit? In Speaker Boehner’s case, he may have a genuine concern about the controversy, but I’m not so sure he has a sufficient stake. He (or whoever the plaintiffs are) will have to show that they have somehow been affected by the President’s actions or inactions. (Being annoyed is not the same as being affected. It might be annoying that I build a house that blocks your view of the lake. But if I steal bricks from your house to build mine, that’s an entirely different situation that would give rise to standing.)

The second part of standing requires that the plaintiff actually suffer some legal injury that can be remedied by the court. No legally recognizable injury, no standing. An example may help. Let’s say the local school board passes a rule requiring students to pray in school. If I have a child in that school, I would have standing to challenge the rule because it adversely affects my child if I object. But if I don’t have a child in that school, the rule doesn’t affect me or my child, so I probably wouldn’t have standing to object.

In Speaker Boehner’s case, it’s hard for me to tell whether he or his colleagues would actually have been adversely affected by the President’s actions. Let’s look at another example to clarify this. The Supreme Court ruled last month that the President’s so-called recess appointments to the National Labor Relations Board were not in compliance with the Constitution’s provisions. The Constitution says exactly when a president can make recess appointments, and the Court concluded that those circumstances didn’t exist at the time of the appointments. (That’s grossly oversimplified, but it will do for now.)

Would Speaker Boehner and his colleagues have had standing to challenge that presidential appointment? Most likely not, since the appointment didn’t do anything other than cause them consternation. (If experiencing consternation was all that was required to file a lawsuit, every lawyer I know would have much more work than he or she could possibly handle.) So who did challenge the appointment? It turns out it was a person who lost a ruling before the NLRB. He was able to say that the ruling should not be enforceable because the President didn’t have the power to appoint one of the board members. If the board was not properly appointed, its actions cannot stand. The Supreme Court agreed that the aggrieved party before the NLRB suffered a cognizable injury as a result of the President’s improper appointment.

Here’s one more example. The Americans With Disabilities Act of 1990 says that places such as retail stores have to be set up in a way that people using wheelchairs can use the place. We’ve all seen handicapped restroom facilities. Let’s say I run across a store whose restrooms are not ADA-compliant. I do not have a physical disability, so therefore I would not have standing to sue for an ADA violation. As much as it might bother me that the restroom is not compliant, I can still use the restroom successfully without the ADA-required items. I cannot sue on someone else’s behalf.  If I was wheelchair bound, however, I would have standing to sue since the lack of grab bars would prevent me from using the restroom.

Curtain call

We all know that politics is merely a form of the Theatre of the Absurd, and threats to sue the President are one way of throwing red meat to a hungry base of voters. At the same time, however, as citizens of the U.S., we ought to know enough to understand whether the suit is something serious or merely Act III in the never ending drama. My conclusion is, without knowing more, Speaker Boehner is delivering his Shakespearean soliloquy. Hey, maybe if he holds up a skull á la Hamlet, it would be Boehner in a boneheaded scene! [Even without reading this, I’m sure my wife is rolling her eyes at my claimed cleverness.]