Knowledge of Government

From the Annenberg Public Policy Center:

After two years of considerable improvement, Americans’ knowledge of some basic facts about their government has fallen to earlier levels, with less than half of those surveyed able to name the three branches of government for the 2022 Annenberg Constitution Day Civics Survey.

The Annenberg Public Policy Center’s annual, nationally representative survey showed notable increases in 2020 and 2021 after tumultuous years that put the role of government and the three branches under a media spotlight. In those two years, the survey was run amid a pandemic and government health restrictions, two impeachment inquiries, a presidential election, an attempt to disrupt congressional certification of the electoral vote, criminal trials of the individuals charged in the assault on the U.S. Capitol, and waves of social justice protests, among other events.

The current survey, released for Constitution Day (Sept. 17), found the first drop in six years among those who could identify all three branches of government, and declines among those who could name the First Amendment rights, though knowledge remained high on some other questions. Additional findings on the Supreme Court will be released next month.

“When it comes to civics, knowledge is power,” said Kathleen Hall Jamieson, director of the Annenberg Public Policy Center of the University of Pennsylvania. “It’s troubling that so few know what rights we’re guaranteed by the First Amendment. We are unlikely to cherish, protect, and exercise rights if we don’t know that we have them.”
Highlights

• Less than half of U.S. adults (47%) could name all three branches of government, down from 56% in 2021 and the first decline on this question since 2016.
• The number of respondents who could, unprompted, name each of the five freedoms guaranteed by the First Amendment also declined, sharply in some cases. For example, less than 1 in 4 people (24%) could name freedom of religion, down from 56% in 2021.
• Over half of Americans (51%) continue to assert incorrectly that Facebook is required to let all Americans express themselves freely on its platform under the First Amendment.
• But large numbers recognize other rights in the Bill of Rights and the veto process.

The Annenberg Constitution Day Civics Survey is a nationally representative survey conducted annually in advance of Constitution Day by the Annenberg Public Policy Center (APPC) of the University of Pennsylvania. This year’s survey of 1,113 U.S. adults was conducted by phone for APPC by independent research company SSRS on August 2-13, 2022. It has a margin of error of ± 3.6 percentage points at the 95% confidence level. The year-to-year changes reported here are statistically significant unless noted otherwise. For the questions and additional data, see the appendix and the methodology statement.

Notes on the Insurrection

Tom Dreisbach and Meg Anderson at NPR:

As a violent mob descended on the U.S. Capitol on Jan. 6, lawmakers and aides hid wherever they could, waiting for the military and police to arrive. But many of those who stormed the Capitol were military veterans themselves, who had once sworn to protect the Constitution. In fact, an NPR analysis has found that nearly 1 in 5 people charged over their alleged involvement in the attack on the U.S. Capitol appear to have a military history.

NPR compiled a list of individuals facing federal or District of Columbia charges in connection with the events of Jan. 6. Of more than 140 charged so far, a review of military records, social media accounts, court documents and news reports indicate at least 27 of those charged, or nearly 20%, have served or are currently serving in the U.S. military. To put that number in perspective, only about 7% of all American adults are military veterans, according to the U.S. Census Bureau.

Amy Worden and Marisa Iati at WP:

A Pennsylvania woman accused of helping to steal a laptop from House Speaker Nancy Pelosi’s office during the attack on the U.S. Capitol in Washington was ordered released from detention Thursday and placed in her mother’s custody.

Riley June Williams, 22, must stay in the home she shares with her mother and abide by other conditions of release, including avoiding contact with any witnesses or victims of the Jan. 6 Capitol storming. Federal Magistrate Judge Martin Carlson said he was releasing Williams in part because she had no prior criminal record, but he warned her that her mother, Wendy Williams, could be criminally charged if she fails to report to the court any violations of the conditions of release.

Unofficial transcript:

Miss Williams, when we met on Tuesday, one of the first things I did was advise you of your constitutional rights. And then I took steps to protect those rights by appointing aggressive, effective counsel to represent you here. That recital of rights wasn't just some hollow invocation of abstract principles. It was affirmation of the rights guaranteed to you by the United States Constitution. And it strikes me that that guarantee says something extraordinary and extraordinarily good about our Constitution. You are embraced by a presumption of innocence.

You are entitled to the assistance of counsel. You have a right to remain silent. All of these matters guaranteed to you by the Constitution, a constitution that protects the rights of those who are accused of transgressing society's rules. Some of the most basic of those rules are set forth in our Constitution. And one of the fundamental pillars of that constitution is the peaceful transition of power. That obligation that all citizens have to facilitate the peaceful transfer of power, it has been honored by generations of Americans for two hundred and thirty two years, it has become so commonplace that we often think very little of it.

But as President Reagan said in his inaugural, that process is a miracle. The allegations that bring you before me involve conduct that allegedly took place on January 6th of this year as Congress was endeavoring to fulfill its constitutional obligation to certify the will of the people and the votes of the Electoral College. You are cloaked in a presumption of innocence with respect to these matters. But the allegations set forth in the complaint relate to conduct that was antithetical to these constitutional values, conduct that involved a riot, a mob that sought to replace constitutional norms with the howling of a crowd.

We know now that the mob failed and the Constitution prevailed. The Constitution prevailed on January 6th of this year because Congress, stepping over the wreckage of its capital, met. and confirmed the vote of the Electoral College, setting the stage for the latest peaceful transition of power in this country yesterday. In the wake of those events on January 6th, it strikes me that the Constitution prevailed yet again in the wake of those events, the men and women of federal law enforcement, including the federal investigator and the assistant US attorney, the federal prosecutor involved in this case, fulfilled a duty that they had under the Constitution. They have sworn an oath under the Constitution to protect and defend that Constitution against all enemies, foreign and domestic.

And in pursuit of that constitutional obligation, a series of investigations have been launched into the matters that took place on January 6th. And those investigations have brought us here today together. It also occurs to me, Miss Williams, in a very personal and direct way, that the Constitution has is and will be prevailing in your case. As I noted a few moments ago when we first met, I invoked the Constitution on your behalf and I took steps to protect your constitutional rights by appointing counsel for you, your counsel.

Fulfilling the role of the Constitution contemplated has aggressively represented your interests here today. Wouldn't you agree, Miss Oelrich? [The judge at this point turns to the court appointed public defender in this case]. Wouldn't you agree, Miss Oelrich, that you have aggressively represented your client's interests here today?

Yes, Your Honor, I spent the last two days doing a lot of investigating. 

[And the judge turns to the prosecutor] On behalf of the United States, it is my view that over the past two days, you and your colleagues here and elsewhere have endeavored to fulfill your constitutional obligation to provide equal justice under the law to ensure the protection of individual rights and liberties while ensuring adherence to the rule of law.[

[And then the judge turns back to the defendant, Miss Williams, he says] so Miss Williams, in a very real and direct sense, you are being released today because the Constitution has prevailed, because your counsel has fulfilled her constitutional obligation and because the United States is also fulfilling its constitutional duty to strike hard blows but fair blows in the pursuit of justice. So, Miss Williams, I share that thought with you as you leave here today, that your freedom today, conditioned as it is by the orders that I have entered as a result of the prevailing of the Constitution.

And I'll leave you with this final thought, Miss Williams. The judge closes with us. The Constitution prevails here today and the Constitution will always prevail in this country.

Civic Knowledge 2020

 From the Annenberg Public Policy Center:

In a period defined by an impeachment inquiry, a pandemic, nationwide protests over racial injustice, and a contentious presidential campaign, Americans’ knowledge of their First Amendment rights and their ability to name all three branches of the federal government have markedly increased, according to the 2020 Annenberg Constitution Day Civics Survey.

Among the highlights of the annual survey, released for Constitution Day (Sept. 17):

• Americans are much more aware of all five rights protected by the First Amendment when asked unprompted to name them;
• Nearly three-quarters of Americans (73%) correctly named freedom of speech as one of the rights guaranteed under the First Amendment, up from 48% in 2017;
• More than half of those surveyed (51%) accurately named all three branches of the federal government, up from 39% last year, the prior high point in this survey.

The civics knowledge survey by the Annenberg Public Policy Center (APPC) of the University of Pennsylvania was conducted among 1,009 U.S. adults from August 4-9, 2020, prior to the political conventions. It has a margin of error of ± 3.6%.

“Divided government, the impeachment process, and the number of times political leaders have turned to the courts probably deserve credit for increasing awareness of the three branches, while controversies over the right to peaceably assemble, freedom of religion, and freedom of speech may have done the same for the First Amendment,” said Annenberg Public Policy Center Director Kathleen Hall Jamieson.

MORE HERE 

Rosenstein on Justice

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Bar Association of Montgomery County’s Law Day CelebrationRockville, MD ~ Friday, May 4, 2018

 The interplay among the branches is incredibly complex, and our Constitution contemplates numerous checks and balances.

In the executive branch, we take an oath. We pledge to support and defend the Constitution of the United States against all enemies, foreign and domestic. We promise to bear true faith and allegiance to the same. We attest that we take this obligation freely, without any mental reservation or purpose of evasion. And we commit to well and faithfully execute the duties of the office, so help me God.

Faithfully enforcing the law is not about following a simple set of instructions. As the great champion of the law Robert H. Jackson put it, “law enforcement is not automatic.” Enforcing the law requires discretion and judgment.

When carrying out our enforcement duties, the executive branch is required to enforce the law as written by the legislature, and as interpreted by the judiciary.

At the Department of Justice, our duty is in our name. Attorney General John Ashcroft famously said that we are the only cabinet department with a name that articulates a moral value.
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Our Bill of Rights, containing the first ten amendments, is often regarded as the pride of American government. But the Constitution originally had no Bill of Rights. The issue was considered during the Constitutional Convention in Philadelphia in 1787, but the Constitution was ratified without it.

The Framers were more concerned about our government’s structure than a written guarantee of rights, because a written guarantee is only as powerful as the system in place to protect it. Our constitutional structure, and the separation of powers embodied in that structure, represents our government’s defining feature.

Justice Scalia explained that “it is those other humdrum provisions—the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, ‘ambition against ambition,’ and make it impossible for any element of government to obtain unchecked power— that convert the Bill of Rights from a paper assurance to a living guarantee.”

The Founders dispersed power both horizontally and vertically. The three branches of the federal government check one another. The states and the federal government check one another. And the people check both the federal and the state governments.

Our system of government is not self-executing. It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.

Lawyers and judges bear great responsibility for implementing and explaining those principles. The further we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.

Due Process

Disgraced former judge Roy Moore faces accusations of child molestation.  Does the right to due process mean that voters should presume him innocent?  Nope, says David French at NRO:

Constitutional protections for due process apply when the state is attempting to deprive a person of “life, liberty, or property.” That’s why we have trials before we render civil or criminal judgments. That’s why due process is mandatory before state-mandated punishment in campus sexual assault tribunals. As a general rule, when the state is attempting to deprive you of rights you’d otherwise enjoy, due process attaches. Here, there is no state action. Roy Moore will not lose his life, liberty, or property if voters reject his bid for high office.

Due process protections, absolutely, positively do not prevent voters from evaluating the veracity of news reports and judging whether a politician is fit for public office. It was entirely fair for voters to analyze the available facts about Hillary Clinton’s email scandal or the available facts about the financial dealings of the Clinton Foundation without waiting for the outcome of a civil or criminal proceeding. It is entirely fair for members of the public to evaluate Juanita Broaddrick’s claims against Bill Clinton without a trial. Similarly, it’s entirely fair for the public to analyze the available facts about Roy Moore before deciding how to vote.

Trump,Gitmo, the Sixth Amendment, and Gabriel Over the White House

James Fallows writes at The Atlantic:

In an interview with the Miami Herald today, a man who could become the next president said that if it were up to him, U.S. citizens suspected of terrorist involvement could be sent to Guantanamo and handled by military tribunals, rather than tried in normal courts.

Here is what the Sixth Amendment to the U.S. Constitution says on the topic:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Trump's notion is remarkably similar to a scene in the 1933 movie, Gabriel Over the White House.  In the film, a president receives instructions from God, takes dictatorial control, and uses courts-martial to try racketeers:

Civil Asset Forfeiture

Shaila Dewan reports at The New York Times that the IRS has seized the assets of law-abiding citizens without even an allegation of criminal conduct. The government can keep the money, and its victims have to prove their innocence to get it back.

On Thursday, in response to questions from The New York Times, the I.R.S. announced that it would curtail the practice, focusing instead on cases where the money is believed to have been acquired illegally or seizure is deemed justified by “exceptional circumstances.”

Richard Weber, the chief of Criminal Investigation at the I.R.S., said in a written statement, “This policy update will ensure that C.I. continues to focus our limited investigative resources on identifying and investigating violations within our jurisdiction that closely align with C.I.’s mission and key priorities.” He added that making deposits under $10,000 to evade reporting requirements, called structuring, is still a crime whether the money is from legal or illegal sources. The new policy will not apply to past seizures.

The I.R.S. is one of several federal agencies that pursue such cases and then refer them to the Justice Department. The Justice Department does not track the total number of cases pursued, the amount of money seized or how many of the cases were related to other crimes, said Peter Carr, a spokesman.

But the Institute for Justice, a Washington-based public interest law firm that is seeking to reform civil forfeiture practices, analyzed structuring data from the I.R.S., which made 639 seizures in 2012, up from 114 in 2005. Only one in five was prosecuted as a criminal structuring case.

The Washington Post reports:

Police agencies have used hundreds of millions of dollars taken from Americans under federal civil forfeiture law in recent years to buy guns, armored cars and electronic surveillance gear. They have also spent money on luxury vehicles, travel and a clown named Sparkles.

The details are contained in thousands of annual reports submitted by local and state agencies to the Justice Department’s Equitable Sharing Program, an initiative that allows local and state police to keep up to 80 percent of the assets they seize. The Washington Post obtained 43,000 of the reports dating from 2008 through a Freedom of Information Act request.

The documents offer a sweeping look at how police departments and drug task forces across the country are benefiting from laws that allow them to take cash and property without proving a crime has occurred. The law was meant to decimate drug organizations, but The Post found that it has been used as a routine source of funding for law enforcement at every level.

The Post also reports:

A leading House lawmaker asked Attorney General Eric H. Holder Jr. on Friday to provide an array of documents and data relating to the Justice Department’s role in tens of thousands of cash and property seizures made in recent years by state and local police under federal civil asset forfeiture laws.

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The request by Rep. F. James “Jim” Sensenbrenner Jr. (R-Wis.), chairman of the House Judiciary subcommittee on crime, terrorism, homeland security and investigations, is part of an inquiry into the billions of dollars in seizures made through the Justice Department’s Equitable Sharing Program, the federal government’s largest asset forfeiture initiative.

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“The implications on civil liberties are dire,” he said in the letter to Holder. “The right to own property is a fundamental right implicitly recognized in the Fourth, Fifth and Fourteenth Amendments. I also believe that it is a human right.”

Sensenbrenner’s request follows a Washington Post investigation that found that 61,998 cash seizures have been made on U.S. highways and elsewhere since the Sept. 11, 2001, attacks without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.

The Homeland Security and Justice departments and other federal agencies received $800 million of that total; state and local authorities kept the rest.

Friday’s letter follows similar requests by Sensenbrenner for documents from the Drug Enforcement Administration and the Immigration and Customs Enforcement. In those letters, Sensenbrenner sought details about how challenges from cash and property owners are handled.

The Lobbysts' Lobby Changes Its Name

The Washington Post reports:

The Washington association that lobbies for lobbyists thinks it’s time to change its name and drop the word “lobbyists.”

The leaders of the American League of Lobbyists insist that the group is making the move because its business has evolved and its members do lots more than walk the halls of Congress and try to shape legislation. They’re into grass-roots organizing and public affairs and other sorts of politics and advocacy. In short, they’re not just lobbyists anymore.

But these savvy professionals also know that reputation matters. And they know that theirs stinks.

“Everybody has that misconception that lobbyists are walking around with a pocketful of cash and that’s about it,” said Monte Ward, the group’s president.

...

 On Monday, the board finalized its decision. On Tuesday, Ward said he would ask the group’s members to approve the switch to the Association of Government Relations Professionals. (The board also approved a new tag line: “Voice of the Lobbying, Public Policy and Advocacy Professions.”) Members will have 30 days to vote. The group’s bylaws require two-thirds approval before the name can be changed.

From the group's website:

You may have seen in today's Politico Influence column that Rep. David Cicilline (D-RI-1) is circulating a letter among his colleagues urging Speaker Boehner to ban registered lobbyists from the Capitol buildings during the shutdown.

ALL's President, Monte Ward, has issued the following statement to the media:

“Banning any constituent or citizen from the United States Capitol and the congressional office buildings to keep them from meeting with their elected officials is unconstitutional.

While we respect the Congressman’s frustration for his constituents, we urge him to remember that all citizens, including lobbyists, have a First Amendment right to redress their grievances. Even though the federal government has shut down, the Constitution and Bill of Rights still stand.

The shutdown is an inconvenience for every citizen, lobbyists included. We wish Congress the very best for a legislative outcome that will reopen the government and put America back in business.”

We understand that Rep. Cicilline is circulating the letter to his colleagues for signatures. We will monitor the situation and continue to defend lobbyists and government relations professionals right to represent their clients and stakeholders to the government.

Constitutional Scholars Speak Out

At The New York Post, Glenn Harlan Reynolds writes:

Sen. Dick Durbin thinks it’s time for Congress to decide who’s a real reporter. In The Chicago Sun-Times last week, he wrote: “Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.”

How do you decide who is a journalist? Essentially, he says, it’s someone who gets a paycheck from a media organization: “A journalist gathers information for a media outlet that disseminates the information through a broadly defined ‘medium’ — including newspaper, nonfiction book, wire service, magazine, news Web site, television, radio or motion picture — for public use. This broad definition covers every form of legitimate journalism.”

Does it really? Every form?

Because, as I write this, most of the information I’m getting from Egypt is being tweeted and blogged by Egyptians and American expats in Egypt. The media organizations are usually hours behind.

Personally, I think a journalist is someone who’s doing journalism, whether they get paid for it or not.

And Durbin is a constitutional ignoramus if he thinks that when the Framers talked about freedom of the press, they were talking about freedom for the press as an institution.

Journalism is indeed an activity, not a profession, and though we often refer to institutionalized media as “the press,” we should remember that James Madison talked about freedom of the press as “freedom in the use of the press” — that is, the freedom to publish, not simply freedom for media organizations.

At The Wall Street Journal, Michael McConnell writes that the president's decision to suspend the employer mandate of the Affordable Care Act raises grave concerns about his understanding of executive power.

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.
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The Justice Department's Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to "refuse to enforce a statute he opposes for policy reasons."
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The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that "The amendments made by this section shall apply to months beginning after December 31, 2013." Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.
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Republican opponents of ObamaCare might say that the suspension of the employer mandate is such good policy that there's no need to worry about constitutionality. But if the president can dispense with laws, and parts of laws, when he disagrees with them, the implications for constitutional government are dire.

Democrats too may acquiesce in Mr. Obama's action, as they have his other aggressive assertions of executive power. Yet what will they say when a Republican president decides that the tax rate on capital gains is a drag on economic growth and instructs the IRS not to enforce it?
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Of all the stretches of executive power Americans have seen in the past few years, the president's unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress "would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice."

The Third Amendment

The Third Amendment says:  "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

At USA Today, Glenn Reynolds writes that one sign of its success is the relative absence of Third Amendment cases. But there are some:

In an article published in the William & Mary Bill of Rights Journal last year, however, Prof. Tom W. Bell points out that such violations, while perhaps rare, are not unknown. In 1942, for example, inhabitants of the Aleutian Islands were forced out of their homes, and in some cases troops were actually quartered there, but it took the federal government decades to admit wrongdoing or pay damages.

Likewise, in a 1982 case in the U.S. Court of Appeals for the Second Circuit, prison guards evicted from their quarters and replaced with National Guard troops during a strike sued, and the Court of Appeals found that this action implicated their rights under the Third Amendment, which it characterized as "designed to assure a fundamental right of privacy."

Now we see another Third Amendment case, from Henderson, Nev., in which the plaintiffs, the Mitchell family, claim that Henderson police seized their home -- battering the door open with a battering ram -- so as to secure an advantageous position in addressing a domestic violence report involving a neighboring house. The police were quite rude -- calling the inhabitants "assholes" and shooting both Anthony Mitchell and his dog with a pepper-ball gun -- before setting up a lookout post in the house.

Should the Third Amendment have something to say about this? Well, it speaks only to "troops," not police -- but then, professional police in the modern sense hadn't been invented at the time of the framing. And given the extreme militarization of police nowadays -- with Nomex coveralls, body armor, AR-15 rifles, grenades, armored vehicles, etc., all documented in Radley Balko's new book, The Rise of the Warrior Cop, -- maybe that's a distinction without a difference anyway. Armed minions of the state seizing your home by force seem close enough to "troops" for me.

Personally, I think we need to return to the sense of one's home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and -- unless they have a warrant -- should have to depart if the homeowner doesn't want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.

Criminalizing Speech

Law professors Jonathan Turley (George Washington University) and Eugene Volokh (UCLA) note recent challenges to freedom of speech.

At the Los Angeles Times, Turley writes of a Pennsylvania judge who dismissed harassment charges against a Muslim who attacked an atheist.  The latter had worn a costume mocking Muslims, and the judge criticized him for it.  Turley reflects on a broader trend:

Western countries are on a slippery slope where more and more speech is cited by citizens as insulting and thus criminal. Last year, on the Isle of Wight, musician Simon Ledger was arrested on suspicion of racially aggravated harassment after a passing person of Chinese descent was offended by Ledger's singing "Kung Fu Fighting." Although the charges were eventually dropped, the arrest sends a chilling message that such songs are voiced at one's own risk.

Some historical debates have now become hate speech. After World War II, Germany criminalized not just Nazi symbols but questioning the Holocaust. Although many have objected that the laws only force such ignorance and intolerance underground, the police have continued the quixotic fight to prevent barred utterances, such as the arrest in 2010 of a man in Hamburg caught using a Hitler speech as a ring tone.

In January, the French parliament passed a law making it a crime to question the Armenian genocide. The law was struck down by the Constitutional Council, but supporters have vowed to introduce a new law to punish deniers. When accused of pandering to Armenian voters, the bill's author responded, "That's democracy."

Perhaps, but it is not liberty. Most democratic constitutions strive not to allow the majority to simply dictate conditions and speech for everyone — the very definition of what the framers of the U.S. Constitution called tyranny of the majority. It was this tendency that led John Adams to warn: "Democracy … soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.''

Legislators in the United States have shown the same taste for speech prosecutions. In June, Tennessee legislators passed a law making it a crime to "transmit or display an image" online that is likely to "frighten, intimidate or cause emotional distress" to someone who sees it. The law leaves free speech dependent not only on the changing attitudes of what constitutes a disturbing image but whether others believe it was sent for a "legitimate purpose." This applies even to postings on Facebook or social media.

Rush Limbaugh recently made vile and demeaning comments about a woman who sought to testify about contraception. Volokh writes:

Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:

Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree ….

Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.

1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort). But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.

... 

 2. Beyond this, the Florida criminal statute, which explicitly applies only to accusations about women and not men, almost certainly violates the Equal Protection Clause doctrine that bans most forms of sex discrimination. (See, e.g., Mississippi Univ. for Women v. Hogan (1982).)

The Constitution and Limits

At The Atlantic, Garrett Epps writes: "The actual Constitution doesn't read as if it was designed to stop innovation or block centralization. It created a new powerful government, and has very little language limiting it. "

This assertion is debatable. In Federalist 83, Hamilton wrote:

The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.

In Federalist 84, Hamilton argued that a bill of rights was unnecessary because the original Constitution did not grant fearsome powers to the national government: "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

But Congress and the states did pass The Bill of Rights, with these important provisions:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.