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The Fragility of Free Speech in America

Posted by :Larry G. Johnson On : March 21, 2014
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Category: Constitution, Government, Socialism, Truth

The First Amendment of the Constitution reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.” The free exercise of religion has been under assault by the liberalism for a number of years and the assault has accelerated significantly in the last two or three years. Attacks on free speech are increasing but of more recent occurrence.

Attacks on free speech increased significantly with efforts to classify certain opinions as hate speech. The problem with prohibiting hate speech is one of determining what is and what is not hate speech. Most often, the efforts at eliminating hate speech are aimed at the “content” of the speech rather than the intolerable mode of expressing the speech (e.g., violence). Here we are not talking about profanity or obscene language that offends the common decency of a civil society. Speech that is bad or hurtful may not be obscene or profane, and slander and libel laws are available where necessary. Also, enforced tolerance through limitations on the content of hate speech may have the opposite effect—that of promoting even more hateful speech or worse. Most importantly, any limit on free speech, however hateful or hurtful, is a slippery slope at whose base is an abyss in which free speech is not only lost but other liberties as well.

As America races toward a monolithic, all-powerful, all-knowing government, free speech is under attack in a variety of ways.

Government approved speech

We recently wrote of the federal government’s first steps at limiting freedom of the press through proposed Federal Communications Commission’s monitoring of newsrooms to determine bias in the provision of critical information needs as determined by the government. [See: “The New Ministry of Truth 2014”]

Government limits on speech through regulation

But government reach goes beyond the newsroom and into cyberspace. Health-wise, Steve Cooksey was a walking time bomb. He was obese, lethargic, asthmatic, chronically ill, and a pre-diabetic. Ignoring the advice of medical personnel and others, he chose to eat a high-carbohydrate, low-fat diet (beef, pork, chicken, leafy vegetables). He lost seventy-five pounds and no longer needed medications. He began sharing his dietary opinions on his Internet blog and interacting with his readers. When asked he would give his opinion, but the North Carolina Board of Dietetics/Nutrition got wind of his treachery and following a three-month investigation ordered him stop as he was “counseling” and needed a license to do so. The Institute for Justice defended Cooksey’s First Amendment right of free speech citing the fact that Cooksey’s speech “…involves no sensitive relationships (as in psychological counseling, no uniquely vulnerable listeners (as in potential legal clients forced to make snap decisions), and no plausible presumption that the listeners are unable to exercise independent judgment.” Cooksey’s advice was unpaid, freely sought, involved no professional-client relationships. [Will]

Regulatory oversight is a necessary and proper function of government. However, under the expansive interpretation of the Constitution’s general welfare clause beginning 1936, much of regulatory oversight has become an autocratic function of a nanny-state bureaucracy intruding into the lives of a free people capable of making rational decisions without government interference.

Limiting when and where free speech may occur

Free speech is under attack on many of the nation’s colleges and universities. Robert Van Tuinen, a student at Modesto Junior College, was stopped by campus police from distributing copies of the Constitution on the 226th anniversary of its signing. College officials told Van Tuinen that he could get permission to distribute the Constitution if he pre-registered for time in the “free speech zone” which reportedly was small slab of concrete just big enough for two people. However, once registered, Van Tuinen would have to wait for an available opening. Effectively, administration officials used campus police to enforce an unconstitutional rule, declared the campus to be off limits for free speech except for a small “free speech” area, and limited when and how many could use so-called free speech area, all in violation of the First Amendment. [Haynes]

Criminalizing free speech

Want to go to jail for your views—spoken or written? Lawrence Torcello, Assistant Professor of Philosophy at Rochester Institute of Technology, suggests that some scientists and their financial backers may be both morally and criminally negligent if their views contradict a set of facts that the majority of scientists agree upon. As an example, Torcello believes that, “We have good reason to consider the funding of climate denial to be criminally and morally negligent. The charge of criminal and moral negligence ought to extend to all activities of the climate deniers who receive funding as part of a sustained campaign to undermine the public’s understanding of scientific consensus.” [Torcello]

Torcello brushes aside free speech concerns by distinguishing between the protected voicing of one’s unpopular beliefs and the funding of a strategically organized campaign to undermine the public’s ability to develop and voice informed opinions. Torcello states that, “Protecting the latter as a form of free speech stretches the definition of free speech to a degree that undermines the very concept.” But Torcello should read the First Amendment again. There is no limit on free speech because it is strategically organized and well-financed. [Torcello] The Left questions the public’s ability to develop and voice informed opinions without help from the liberal intellectual elites. The problem for the Left is that the public is getting wise to the liberal, radical environmentalist agenda and other pseudo-scientific pronouncements, and the Left’s only recourse is silence their critics.

Writing seventy years ago in his seminal Road to Serfdom, F. A. Hayek identified the liberal necessity of group-think for the masses to achieve their ends.

The most effective way of making everybody serve the single system of ends toward which the social plan is directed is to make everybody believe in those ends…Although the beliefs must be chosen for the people and imposed upon them, they must become their beliefs, a generally accepted creed which makes the individuals as far as possible act spontaneously in the way the planner wants. [emphasis added][Hayek, p. 171.]

For liberals, any public criticism or even expressions of doubt tend to weaken public support for the official doctrine, creed, values, or views of the regime. The acts of government must be sacrosanct and exempt from criticism. Even though the great majority may have surrendered independent thought, the minority’s doubt, discontent, and criticisms must be suppressed or silenced. [Hayek, pp. 175-176.]

The suppression of free speech in America ranks high on the liberal agenda because the end of liberalism is socialism, and the end of socialism is totalitarianism. That is why those pesky three little words of “freedom of speech” in the First Amendment are so troubling to the liberal establishment.

Larry G. Johnson

Sources:

Larry G. Johnson, “The Ministry of Truth 2014,” culturewarrior.net, March 7, 2014. http://www.firstamendmentcenter.org/on-college-campuses-zoning-out-free-speech (accessed 3-19-14)

Charles C. Haynes, “On college campuses, zoning out free speech,” First Amendment Center, October 14, 2013. www.firstamendmentcenter.org/on-college-campuses-zoning-out-free-speech#tab-section (accessed 3-19-14).

Lawrence Torcello, “Is misinformation about the climate criminally negligent?” The Conversation, March 13, 2014. https://theconversation.com/is-misinformation-about-the-climate-criminally-negligent-23111##comment_333276 (accessed March 19, 2014).

F. A. Hayek, The Road to Serfdom – Text and Documents, ed. Bruce Caldwell, (Chicago, Illinois: The University of Chicago Press, 1944, 2007), pp. 171, 175-176.

George Will, “An attack on free speech in North Carolina,” Tulsa World, September 27, 2012, A-16.

Christianity in the Public Square – Part II – The Founders’ Establishment Clause v. the Modern Secularists’ Separation Clause

Posted by :Larry G. Johnson On : September 27, 2013
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Category: Archives, Christianity, Constitution

In Part I we examined statements made in a newspaper article by a Baptist minister and a retired school teacher who support a lawsuit by the American Civil Liberties Union (ACLU) seeking removal of a monument inscribed with the Ten Commandments located on the State Capitol grounds. [Hoberock, 9-9-13] In opposition to the monument, the minister and teacher made a series of comments which serve as a basis for examining the larger issue of Christianity in the public square. Part I dealt with the legitimacy or right to express one’s faith in the public square. In Part II we shall move to the larger issue of what the Founders meant by inclusion of the Establishment clause in the First Amendment.

To help us do so, we look to comments by the minister and teacher which express popular but misguided understandings of the Constitution with regard to religion in general and Christianity in particular:

He is trying to express his faith in the public square. He shouldn’t be doing that with monuments trying to make it look like the government is endorsing his particular faith. [Minister referring to the person who paid for the Ten Commandments monument with private funds.]

I am a religious person and to me separation of church and state isn’t the concern about the government trying to control my religion. It is concern about religion trying to control my government. [Teacher]

Again, the validity of these comments must be examined by answering a number of questions.

• Was the Establishment clause meant to protect religion or the government?
• What were the Founders’ attitudes toward Christianity in the public square?
• Is there a difference between our government adhering to biblical principles upon which the nation was founded and the promotion of Christianity or a particular denomination thereof?

To answer the first question, we must examine the meaning of the Establishment clause and the modern misinterpretation of it as a “separation” clause. To impute the First Amendment’s Establishment clause as a separation clause is the typical misreading of the First Amendment in an attempt to drive Christianity from the public square by secular humanists. Specifically, the First Amendment says: “Congress shall make no law respecting an establishment of religion, or the free exercise thereof…” The phrase “separation of church and state” is not found in the Constitution of the United States.

The Founders were very explicit in their words and deeds in demonstrating that religion was to play an important and central role in the public affairs of the nation. The First Amendment prohibition dealt with the establishment of a preferred religion, a state sponsored religion if you will. It also prohibited the meddling of the federal government in the free exercise thereof.

At the time of the Constitution, although the states encouraged Christianity, no state allowed an exclusive state-sponsored denomination. There was a time when one denomination ruled over and oppressed others. This was fresh in the minds of the people, so much so, that the Danbury Baptist Association wrote to President Jefferson regarding a rumor that a particular denomination would become the official denomination. It was in this context that Jefferson wrote to a gathering of Danbury Baptists at Danbury, Connecticut, on January 1, 1802 to assure them that the rumor had no basis in fact. In an attempt to assuage their fears, he said,

I contemplate with solemn reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise there,” thus building a wall of separation between Church and State. [Barton, p. 41.]

Here we have a politician, visiting his constituents, to assure them that their concerns were baseless, that is, no one Christian denomination would become the official national denomination. That is the context and in no way threatens the Danbury Baptist or other denominations with expulsion from the public square by means of a wall of separation. In effect, Jefferson’s wall was a one-way wall—protecting the church from the government. That is the complete opposite of the meaning as it is used today to drive Christianity out of the public square.

Simply put, government cannot make a law respecting an establishment of religion. In the context of the times and the purpose of his letter to the Danbury Baptists, this meant “preferred religion” and not an absence of religion in government or public life.

This attitude was subsequently demonstrated a few years later by Supreme Court Justice Joseph Story (appointed by James Madison, considered to be the father of the Constitution) who wrote,

…We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general and especially to Christianity which none could hold in more reverence than the framers of the Constitution…an attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. [Barton, p. 32.]

Contrast Justice Story’s comments to what has occurred in this country beginning with the last half of the 20th century. Voluntary school prayer establishes a national religion, allowing students to pray allowed over their lunches establishes a national religion, displaying the Ten Commandments on public buildings is establishment of a national religion, etc. [Barton, p. 32.]

It is ironic that this belief that any hint of Christianity in the public life of the country becomes the establishment of religion. Effectively, the free exercise of religion (guaranteed in the same sentence) now triggers the prohibited establishment of religion.

In answer to our last question, there is a difference between our government’s adherence to biblical principles upon which the nation was founded and the promotion of Christianity or particular denomination of within Christianity. It is important to understand that the United States is not a nation that attempts to impose Christianity on all of its citizens but rather it is a nation founded upon on Judeo-Christian principles that form the nation’s central cultural vision. The worldview of the Founders dictated the principles or values under which the United States was founded. And with even the most cursory examination of the Founders and the history of the nation, we can unequivocally say we were founded upon Christian principles. And this is the essence of this Christian worldview as it relates to forming a nation: All of society’s laws must be subject to the authority of a higher law. This was the belief of our Founders and this belief is evident in their words and actions.

Larry G. Johnson

Sources:

Barbara Hoberock, “Minister: Display breaches barrier,” Tulsa World, September 9, 2013, A-9.

David Barton, The Myth of Separation, (Aledo, Texas: Wallbuilder Press, 1878), pp. 32, 41.

Christianity in the Public Square – Part I- The Constitution and the Ten Commandments Monument

Posted by :Larry G. Johnson On : September 20, 2013
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Category: Archives, Christianity, Constitution

The American Civil Liberties Union (ACLU) has filed a lawsuit against the Capital Preservation Commission of the State of Oklahoma, seeking removal of a monument inscribed with the Ten Commandments located on the State Capitol grounds. The suit states that, “This piece of public property, placed upon public property, conveys an explicit religious message that supports and endorses the faiths and creeds of some churches and sects.” Brady Henderson, Legal Director with the Oklahoma ACLU, stated “Our constitution makes it clear you cannot use state property and state resources to support a particular religion and this monument does just that.” [foxnews.com]

A recent newspaper article featured the opinions of a Baptist minister and a retired school teacher, both of whom support the lawsuit. [Tulsa World, 9-9-2013] The article offered a number of quotes by the two opponents of the monument which parrot much of the common but misguided understanding of the Constitution with regard to religion in general and Christianity in particular. Here are some excerpts from their statements:

Most of my concern is that this is another in-your-face attempt by misguided Christians to assert their faith in the public square. [Minister]

If Christians want to share their faith, they should do it face-to-face. They do not need to try to find ways to dominate the public square and impose their will on everyone else. [Minister]

I believe wholeheartedly religion is a personal, private issue and I do not want the government telling me how to worship. [Teacher]

The validity of these comments must be examined by answering a number of questions:

• What rights do Christians have to express their faith in the public square?
• Why must Christians only express their faith face-to-face?
• Are the First Amendment rights of Christians to free exercise of religion and freedom of speech being violated by attempts to quell expressions of faith in the public square?

Questions raised by other statements of the two opponents to the monument are addressed in Part II.

The issue of expressing one’s faith raised by the minister is archetypal in that it clearly defines the conflicts surrounding the assault on Christianity in the public arena. The minister appears to be saying that any attempt to share one’s faith in the public arena, other than face-to-face, is misguided and an attempt to dominate the public square and impose their will on everyone else. The rebuttal to the minister’s and the teacher’s assertions must be made on two levels.

Our first response is to Christians. Christians that are faithful to Christ and his direction for living in this world must recognize the importance of sharing the Christian faith. According to Scripture (Matthew 28:19-20), one must teach all nations to observe His commandments. But this response, addressed to Christians, will not satisfy non-Christians.

The minister’s requirement that such displays of faith be made only in a face-to-face manner are hypocritical given the fact that Christians are being punished for merely exercising their right of free speech about their faith. TSgt. Layne Wilson, a 27-year veteran of the Utah Air National Guard, was reprimanded after he emailed a letter to someone he believed to be a chaplain at West Point. In the email he objected to a gay wedding that was to be held in the West Point chapel which at the time was a violation of the law. As a result of his email, he was officially reprimanded and denied a six-year reenlistment contract and allowed only a one-year extension. He was told that he his views were “…no longer compatible with further military service,” [foxnewsinsider.com] University of Toledo President Lloyd Jacobs fired Crystal Dixon, then interim associate vice president for human resources, in 2008 for publicly expressing an opinion contrary to school policy. Dixon claimed the school’s action violated her First Amendment right to free speech but lost her appeal when a three-judge panel of the 6th U.S. Circuit Court of Appeals sided with the University’s firing of Dixon after she wrote an editorial for the Toledo Free Press expressing her opinion that the homosexual lifestyle was not a civil right but a choice. The court ruled that the school’s interest in promoting its values and policies outweighed Dixon’s free-speech interests. [worldmag.com] These are just two examples of the rampant and pernicious hostility in all spheres of American life to Christians’ expressions of their faith.

Our second rebuttal to the minister’s and teacher’s assertions is made to the humanists and non-Christians. For the secularist, humanist, or others not holding the Christian faith, we counter with a question, “Why not discuss with someone what they should believe, either publicly or privately?” Who made the rule that we shouldn’t? The airwaves are filled with thousands of people discussing their most intimate and private lives before millions of people. Some will counter that discussions of religion and faith is just not done in polite society. However, is it a matter of etiquette to not offer a solution and solace to those in pain or despair? If one were in a dire, life-threatening situation and the secularist or humanist held the means of escape, would he or she hesitate to offer assistance? Of course they wouldn’t. Likewise, Christians are not imposing their views on anyone but sharing the difference Jesus has made in their lives and they care enough about others to want to share His (Christ) message in the hope that other lives will be similarly transformed. [Johnson, p. 183.]

As one can see, the comments of the minister and teacher do not deal with the Ten Commandments but larger issues of the supposed separation of church and state which will be dealt with in Part II. But let’s return to the issue at hand by looking at the words of John Quincy Adams, one of America’s Founders and the sixth president of the United States, with regard to the Ten Commandments and their place in civil and municipal government.

The law given from Sinai was a civil and municipal as well as a moral and religious code…laws essential to the existence of men in society and most of which have been enacted by every nation which ever professed any code of laws. Vain indeed would be the search among the writings of profane antiquity [secular history]…to find so broad, so complete and so solid a basis for morality as this decalogue [Ten Commandments] lays down. [Barton, p. 178.]

Larry G. Johnson

Sources:

“ACLU sues to remove Oklahoma 10 Commandments Monument” foxnews.com, August 22, 2013. http://www.foxnews.com/us/2013/08/22/aclu-sues-to-remove-oklahoma-10-commandments-monument/#ixzz2dHrcZwgM (accessed August 28, 2013).

Barbara Hoberock, “Minister: Display breaches barrier,” Tulsa World, September 9, 2013, A-9.

Todd Starnes, “Nat’l Guardsman Punished for Objecting to Gay Marriage in Military Chapel,” foxnewsinsider.com, July 11, 2013. http://foxnewsinsider.com/2013/07/11/national-guard-veteran-layne-wilson-punished-objecting-gay-marriage-west-point-chapel#ixzz2eb2PMRzw (accessed September 11, 2013).

Leigh Jones, “Court says college administrator has no right to oppose gay rights,” worldmag.com, December 21, 2012. http://www.worldmag.com/2012/12/court_says_ college_administrator_has_no_right_to_oppose_gay_rights (accessed 9-11-13).

Larry G. Johnson, Ye shall be as gods – Humanism and Christianity – The Battle for Supremacy in the American Cultural Vision, (Owasso, Oklahoma: Anvil House Publishers, 2011), p. 183.

David Barton, Original Intent – The Courts, the Constitution, & Religion, (Aledo, Texas: Wallbuilder Press, 2008), p. 178.

The Reasons for Governmental Abuse of Power

Posted by :Larry G. Johnson On : June 21, 2013
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Category: Archives, Constitution, Government

We are a nation ruled by laws that exist under the Constitutional umbrella. The rule of law implies that governmental authority (power) is limited and may only be exercised in accordance with written laws adopted through an established procedure. When elected or appointed officials and bureaucrats exercise power beyond the limits established by the law, it is called abuse. This abuse of power has increased significantly as a result of the rejection of the biblical worldview and the adoption of a humanistic, secular worldview by many of the leaders of American institutions and especially leaders of government and related bureaucracies.

Numerous scandals have erupted in recent weeks because of widespread abuse of power in the Obama administration and many departments of the federal government. Although scandals in government punctuate every time period in our nation’s history, the recent scandals in various segments of government appear systemic in nature and go beyond anything in memory, at least as to frequency and pervasiveness but possibly of magnitude as well (which is yet to be determined).

Typically, government scandals are primarily about isolated abuses of power by governmental officials and bureaucrats which are related to financial gain and/or waste which appear to be endemic to a sprawling government filled with faceless bureaucrats insulated from accountability and punishment for wrongdoing. The more serious and systemic abuses of power go beyond theft or malfeasance and revolve around intimidation, coercion, injustice, loss of freedom, and a general and pervasive attitude of lawlessness. More than greed and waste, these abuses of power cut as the heart of protections afforded by the Constitution and our laws.

For all of its failings, the one for which the Obama administration will be remembered most is the widespread lawlessness at all levels of government during his administration. Regardless of President Obama’s involvement, knowledge, or lack thereof in the various scandals rocking his administration, his arrogant example sent the message that his decrees and agenda were superior to the laws of the land, especially if those laws were based on a biblical worldview as held by the Founders.

Because of the President’s arrogant attitude and actions in pursuit of his ideological agenda that disregard Constitutional limits and many laws passed by Congress, his administration and much of the governmental bureaucracy have followed his example. The President’s “above-the-law” attitude and actions include many instances of his unilateral violation of the Constitutional separation of powers between the executive branch and the legislative and judicial branches which were meant to limit government authority and thereby protect individual liberty; abuse of the power of executive privilege; non-enforcement of laws passed by Congress; and vocal denigration of the judiciary and its decisions with consequent promotion of disrespect of the law.

Following the President’s lead, various agencies and departments have become a law unto themselves through imposition of draconian regulations (many which are far removed from the original intent of the laws permitting those regulations) and selective enforcement of laws and regulations for the purpose of furthering the administration’s ideological agenda through the power of their position. Examples include:

• The federal government’s refusal to continue enforcement of the Clinton-era welfare reform that required aid recipients (all who were able) to work.
• Rewriting of immigration laws without Congressional approval.
• Implementation of elements of the President’s Dream Act which Congress refused to adopt.
• Imposition of environmental rules (e.g., cap-and-trade carbon rules) which the Congress refused to adopt.
[Samuel E. Burns, “Blatant disregard of laws passed by Congress violates separation of powers.”]

The most recent scandals at the IRS and Departments of State, Justice, and Health and Human Services have exposed the dark underbelly of the monster created by the consistent public flaunting by the President and his minions of the Constitution, its protections and processes, and the laws of the land.

The media, investigators, and the public dissect, discuss, and demand retribution for the transgressions of government, but few talk of the underlying structural/systemic reasons that provide fertile ground for the abuse of power to occur. Only when those structural/systemic deficiencies are addressed and corrected will we see a decline in the abuse of power by the government.

The governmental structure upon which the nation was founded rested on the biblical worldview of the Founders and was reflected in the Constitution. Fundamental to this governmental structure were the limitations placed upon it. The retreat from the biblical worldview as the basis for our laws and policy making began accelerating in the 1930s. At the same time there began a vast increase in the scope and authority of government over society and its institutions in a manner not intended by the Founders or God’s design for the social order. Again, the government abuses its power when its reach usurps the power and authority of other spheres of the social structure designed by God. Here we speak of the family, church, labor, community, and relationship between man and God. This intrusion is so omnipresent and complex, even the most ardent socialist cannot deny it.

To remedy the structural or systemic failings that have led to abuse of power in the government, four actions must be taken. First, we must hold all branches and departments of government strictly accountable to the Constitution and laws of the land. Second, we must remove (by vote or action of law) and/or prosecute those who violate the Constitution and/or laws of the land. Third, we must limit the size of government. And fourth, we must limit the reach of government into the various spheres of the social order for which government was never intended to intrude.

We gain an appreciation of the importance of these four actions when we turn to F. A. Hayek’s words written during World War II in his seminal work titled The Road to Serfdom.

There is no justification for the belief that, so long as power is conferred by democratic procedure, it cannot be arbitrary…it is not the source but the limitation of power which prevents it from being arbitrary…If democracy resolves on a task which necessarily involves the use of power which cannot be guided by fixed rules, it must become arbitrary power. (emphasis added)

The President and his administration have refused to be guided by fixed rules and as a result have arbitrarily used government power to further the President’s ideological agenda and purposes. The shield of democracy will not hide the abuses of that power. Prevention of abuse comes only with limitation of the power of government. Those limitations must be guided by the fixed rules of the biblical worldview which the Founders held and not the humanistic perversions of moral relativism.

Larry G. Johnson

Sources:

Samuel E. Burns, “Blatant disregard of laws passed by Congress violates separation of powers,” The Last Chance for Freedom, August 6, 2012. http://thelastchanceoffreedom.blogspot.com/2012/08/blatant-disregard-of-laws-passed-by.html (accessed June 4, 2013).

F. A. Hayek, The Road to Serfdom, Bruce Caldwell, ed., (Chicago, Illinois: University of Chicago Press, 1944, 2007), p. 111.

Assault and battery on Freedom of Speech and Due Process provisions of the Constitution

Posted by :Larry G. Johnson On : June 14, 2013
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Category: Archives, Constitution

First Amendment of the Constitution of the United States, November 3, 1791:

Congress Shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.

Thoughtful judicial interpretation of laws in light of the Constitution is the courts’ proper role. But through judicial activism by liberal judges usurping the role of the legislature in making laws, the courts have appropriated unto themselves a law-making role never intended by the Founders. Additionally, their power to decide what is right and wrong is all too frequently based on man’s law, not God’s laws. These abuses of power by the judiciary have significantly undermined the Founders’ meaning and intent with regard to the Constitution.

As these modern false meanings with regard to the Constitution have gain currency and faux-legitimacy in twenty-first century American culture, the courts, the bureaucracy, and their sycophant fellow travelers implement these radical perversions into the minutiae of everyday life of the citizenry and their institutions. During the almost half-decade of the Obama administration, the volume and intrusiveness of these flawed regulations, requirements, and obligations imposed upon the nation have been astounding but should be no surprise to those who understand the humanistic worldview and its pervasive presence in our government.

The attack upon freedom of speech has reached monumental proportions during President Obama’s tenure in the White House. Illustrative of big government arrogance, the recent agreement between the Department of Justice and Department of Education’s Office of Civil Rights with the University of Montana-Missoula is but one example of the attack by our government gone wild in the pursuit of absurd understandings of equality and justice. The university was accused of mishandling sexual assault-harassment claims (the university handled the claims but not to the satisfaction of the DOJ and DOE) and settled by signing a sixteen page Resolution Agreement. The subsequent thirty-two page letter of findings detailed the sins of the university and remedies thereto which will cost the university hundreds of thousands of dollars annually in time and money to meet the specifications dictated.

The regulatory cost affects not only the University of Montana, but as the DOJ/DOE letter made clear, “The Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” One need not wonder at the reason for the astronomical cost of higher education in the US after reading the DOJ/DOE’s compliance requirements. I encourage those with the stamina and stomach to read these documents.

But the loss of freedom of speech on American college campuses far exceeds the DOJ/DOE’s financial bludgeoning of American universities, students, parents, and taxpayers. The sweeping new definitions of sexual harassment have effectively trumped any consideration of constitutionally-guaranteed freedom of speech. According to the DOJ/DOE,

Sexual harassment is a form of sex discrimination prohibited by Title IX and Title IV. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. [DOJ/DOE letter, p. 4.]

So, what is the standard for determining what is unwelcome verbal conduct (i.e., speech) of a sexual nature and therefore is to be deemed sexual harassment? There is no standard measure other than the opinion of the hearer who perceives any speech unwelcome if he/she considers it to be of a sexual nature, unwanted, and harassment. Effectively, the definition of sexual harassment is unleashed from the standards of law and culture with regard to what a reasonable person considers offensive or whether it was sufficiently severe and pervasive as to create a hostile environment.

But there are other Constitutional problems with the DOJ/DOE letter.

In addition, a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser. These steps should minimize the burden on the complainant and should not be delayed until the outcome of a criminal proceeding. [DOJ/DOE letter, p. 6.]

By fiat, the DOJ/DOE has dispensed with due process of law for those accused of sexual harassment. Due process of law is a foundational protection in American society, is found as a part of the Fifth and Fourteenth Amendments to the Constitution, and stretches back to clause 39 of the Magna Carta of thirteenth century England.

Notice the DOJ/DOE requirements: immediate steps must be taken, and those appropriate steps may include “…provision of counseling for the complainant and/or harasser…” (notice the absence of “alleged” before harasser), or “…taking disciplinary action against the harasser.” In other words, the harasser (guilty or not) may be immediately counseled and/or punished before due process of law runs its course. Such is the Machiavellian thought processes of those that have abandoned the biblical worldview of law and justice upon which the Founders’ constructed the Constitution.

Being the law enforcement arm of government and understanding the supreme position of the Constitution with regard to the nation’s laws and regulations, why would Department of Justice officials render so blatantly unconstitutional regulations? The answer lies in their humanistic view of their role in society. For progressives such as President Obama and bureaucrats found in the DOJ and DOE, the top-down approach is a progressive’s statement of the natural order of things. The restrictions and regulations of the humanist society (which must ultimately evolve to a socialistic system of organizing society) are decided by its social engineers who believe in the perfectibility of man and deny his fallen nature. Therefore, man and his society must be molded and shaped by the elites or conditioners of society (as C. S. Lewis called them).

However, the falseness and folly of the progressives’ view becomes apparent when we once again refer to Tocqueville’s words of 180 years ago as he spoke of the new despotism (which is now called socialism) that succinctly describes American government in the twenty-first century.

…the ruling power, having taken each citizen one by one into its powerful grasp and having molded him to its own liking, spreads it arms over the whole of society, covering the surface of social life with a network of petty, complicated, detailed, and uniform rules through which even the most original minds and the most energetic of spirits cannot reach the light in order to rise above the crowd.

The ruling powers at the DOJ and DOE have chosen their own artificial norms which are inherently domineering, restrictive, and restraining in the details of life and which ultimately lead to loss of freedom on American college campuses. Even as court challenges will surely reverse the most extreme elements of the regulations, the ever present powerful grasp and pervasive reach of Big Brother will still sap much of the spirit and energy of all but the hardiest of American citizens.

Larry G. Johnson

Sources:

Department of Justice, Civil Rights Division and Department of Education, Office of Civil Rights, DOJ Case No. DJ 169-44-9, OCR Case No. 10126001, Resolution Agreement – The University of Montana, Missoula, Montana, (May 8, 2013). http://www2.ed.gov/documents/press-releases/montana-missoula-resolution-agreement.pdf (accessed May 28, 2013).

Department of Justice, Civil Rights Division and Department of Education, Office of Civil Rights, DOJ Case No. DJ 169-44-9, OCR Case No. 10126001, Letter to President Royce Engstrom, Office of the President The University of Montana, Missoula, Montana, (May 9, 2013), pp. l, 4, 6. http://www2.ed.gov/documents/press-releases/montana-missoula-letter.pdf (accessed May 28, 2013).

Alexis De Tocqueville, Democracy in America, Gerald E. Bevan, Trans., (London, England: Penguin Books, 2003), p. 806.