August 25, 2010

DETECTING MODERATE ISLAM

 

The Policy Think Site: http://www.jaygaskill.com    
As Posted On
The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1   
The Human Conspiracy Blog: http://www.jaygaskill.com/blog3 
All contents, unless otherwise indicated are --
Copyright © 2003, 2004, 2005, 2006, 2007, 2008, 2009 & 2010 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article - except for personal use - is needed.
Forwarded links are welcomed.
Contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com

 

 

 

Read also, “The Manhattan Mosque Incident” where the real issue - security, not “religious freedom” - is identified.  Here is that link:

http://www.jaygaskill.com/TheManhattanMosqueIncident.htm

 

This article is also posted at http://www.jaygaskill.com/DetectingModerateIslam.htm 

 

 

DETECTING MODERATE ISLAM

A Reflection by

Jay B Gaskill, Attorney at Law

 

What would a moderate Nazi look and talk like, say, in 1944? 

 

To ask the question is to answer it.  We’ll never know because anyone who did that, actually broke with Nazism, and was quietly arrested and sent to a camp from which he or she never emerged.

 

Now, consider how much a member of France’s Vichy government in German-occupied Berlin could afford to say, even in private?  And ask yourself whether you could ever really trust whatever was said, even in private....

 

The deadly reach of radical, militant Islam is worldwide.  This is why every follower of Islam, however “moderate”, is apt to behave like a member of the Vichy government during the high water mark of the Nazi occupation.

 

[ http://www.bbc.co.uk/history/worldwars/genocide/jewish_deportation_01.shtml ]

 

Recall, if you will, that the Vichy government actively participated in the rounding up and delivery to Auschwitz and other German camps of at least 75 thousand Jews, of whom fewer than 2,000 survived.  You will not find a list of Vichy government members who actively protested these murders, let alone the complicity of the French government.

 

From this historical frame of reference, moderate Islam is a meaningless construct unless and until moderates consistently self-identify by a courageous public differentiation from the radicals.  Courage is needed because this must be a move the authenticity of which will leave no daylight between one’s public and private positions.

 

THE LEFT’S ACCOMMODATION OF FAUX MODERATES

 

The American left has tacitly adopted a less rigorous, more self-serving test.   In a bizarre amalgam of ideologically saturated perception and staggering naïveté, the left tends to apply the label of moderate Islam to any Muslim public figure who articulates the left-wing’s critique of America as the world’s overweening hegemonic power, while remaining silent about everything else, including the virulent anti-Semitism and violent jihadist ambitions of their co-religionists.

 

This has opened the door to the cynical manipulation of the American left by the American political experts who advise the jihad’s terror-central.  Al-Qaeda’s public statements and those of other radical Islamist spokesman almost always play to the left’s biases.

 

“We destroyed the World Trade Center and the Pentagon and Allah ordered us to... punish everyone who stands alongside (US President George W.) Bush.”

Al Qaeda

 

“The U.S. is leading the war against terrorism, which in reality is a war against Islam. Its army is directly invading two Muslim countries and indirectly occupying the rest through its stooges. The heroic act of brother Nidal (hasan, the fort hood shooter) also shows the dilemma of the Muslim American community. Increasingly, they are being cornered into taking stances that would either make them betray Islam or betray their nation.”

Anwar al-Awlaki

 

GROUND ZERO BLINDNESS

 

Enter the Imam behind the Ground Zero Islamic center/mosque project. 

 

“We tend to forget, in the West, that the United States has more Muslim blood on its hands than al-Qaeda has on its hands of innocent non Muslims.”

 

Feisal Abdul Rauf in 2005.

 

Q: “Are you arguing, or am I misunderstanding you, that the slaps on the face, to use your term, from the Muslim world to the West, are all reactive to things that the West has done?”


A: “Predominantly, because the West is the global superpower. . . . It’s the more powerful party in the relationship which sets the tone of the relationship.... In terms of specific conflict, specific issues that have resulted in specific actions within recent history, those have to be tied in to the perceptions which were created around what people were actually reacting to at that given point in time.”

 

Feisal Abdul Rauf in 2008.

 

This imam has been as cautious in criticizing militant Islam as a typical member of the Vichy government was in condemning the Nazi holocaust. 

 

THE MODERATE ISLAM LITMUS TEST

 

Here’s the deal.  We need to define moderate Islam in terms of the prevailing ethos against which radical Islam is at war:  Western liberal civilization.

 

Moderate Islam needs to explicitly honor and support at least the five core elements of the social compact that define Western liberal civilization and to commit to respect the boundaries of loyalty to its health and survival, to wit:

 

One:

Robust protections for free expression.

 

Two:

A clear, juridical and practical separation of the authority structures (and canonical demands) of religious institutions from the regular, established institutions of secular government (in plain terms - Sharia “Law” is demoted to a religious practice, unenforceable by statutory law or private violence);

 

Three:

No subjugation or violent retribution OR control of individuals (i.e., women. “infidels”. or anyone else singled out on religious grounds) whether through legal practice or the tolerance of violence or intimidation;

 

Four

Free religious expression, worship and practice, so long these are effectively consistent with 1, 2 and 3;

 

Five

The use of violence, terror and intimidation to undermine the social order is to be actively condemned and opposed whatever its source (i.e., loyalty to the national social compact trumps any fatwa or religious edict).

 

 

WAITING FOR REFORMATION

 

The prevalent Western religions have all undergone a reformation.  With the historically brief exception of a worldly, secular phase 929-1009, under the reign of a single Caliph, Abd-al Rahman III in Cordoba, Spain, Islam is still locked in a fierce medieval rigidity.

 

Moderate Islam still awaits a moderate theology. Meantime, the world’s moderate Muslims are silently embedded in a larger group of believers to a degree that we in the secular and reformed-religious West should be forgiven for our inability to separate the two. 

 

In the meantime, many partly-secular Muslims live quiet, law-abiding lives among us, still conflicted and troubled by the many tensions and constrictions between scripture and modernity.

 

We in the West will not be the authors of the religious reformation for a faith that commands more than one billion adherents world-wide.  What we can and must accomplish is something more modest and ultimately more important:  to successfully defend our civilization in the meantime.

 

 

JBG

 

 

 

 

 

August 18, 2010

Who IS Obama?

As Published On
→ The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1
And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007, 2008, 2009 and 2010 by Jay B. Gaskill
Permission to print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com
PERMISSION TO FORWARD LINKS TO THIS BLOG OR INDIVIDUAL ARTICLES IS HEREBY GIVEN

 

This article is also posted at -- http://www.jaygaskill.com/WhoIsObama.htm

 

THE PRESIDENTIAL VIRUS 2010

 

“I began by telling the president that there was a cancer growing on the presidency and that if the cancer was not removed the president himself would be killed by it.”

 

John Dean, speaking of Richard Nixon 

 

 

Who is Obama?

 

There appear to be at least four versions of Mr. Obama, each of which is competing for our collective sense of reality, for the dominant media narrative, possibly for Obama's soul, and – ultimately - for the verdict of history. 

 

We have to cut our new president a little slack here, of course.  It is not remarkable when any new president loses ground in the polls.  The mere transition from the poetry of the campaign to the prose of governance[1] is enough to erode popular support.   Of course, that didn’t happen with Eisenhower, but then he never sold himself as a poet in the first place.

 

Certainly, no president is likely to hold an adulatory electorate in thrall while facing a global financial crisis, a major and seemingly intractable recession, new terrorist probings of our homeland, an environmental calamity perilously close to our shores and a floundering war against the Taliban in Afghanistan - the former state sponsors of the 911 attacks, now resurgent. 

 

The truly great presidents can call on a reservoir of trust, an earned respect for general competence and real-world savvy.  

 

It is painfully clear that something entirely different is at work here.  In some ways, this is the strangest president in living memory.  Moreover, the enigma surrounding Mr. Obama’s persona only increases, as do the essential doubts about his deeper character.

 

Who is this man in the White House, really? We can fill the blanks with our personal impressions, but a difficult thing needs to be acknowledged:

 

The trust question has started to gnaw at the electorate.  That gnawing sound in the background is the Presidential Virus. 

 

The Post Messiah Obama

 

As we acknowledge the collapse of the notion that we have elected the messiah, four “versions” of this president remain in play.

 

[1]

Obama, as the decent liberal-minded young man, with some moderate instincts:  This is the character that fate has surrounded - it appears - with naive, left-minded advisors, who currently have his ear.

 

[2]

Obama, as the ambitious, narcissistic chameleon, enthralled with the grandiose gesture:  This character is surrounded by sycophantic advisors, a man addicted to praise and greatly irritated when the mirror of Narcissus reveals something unpleasant about himself or his agenda.

 

[3]

Obama, as the closet arch-leftist (as distinguished from a humanitarian liberal, like, say, Hubert Humphrey):  This is a man whose political world-view was formed by unreconstructed 60’s radicals and hip, anti-Semitic blacks. This is Obama as the dangerous political genius whose ideological commitment may lead him to be content with a consequential first term & damn the majority of voters who “just don’t get it.” This is the picture of someone bright and manipulative enough to feint to the center when necessary to “get things done”, then reverts to form.

 

[4]

Obama, as the political lightweight:  This is the minor, first term Illinois senator whose ascent to power was a surprise even to him, whose un-preparedness for the supreme national executive position was revealed by lengthy and tortured decision times, by a growing gap between glib rhetoric and results.  This is a leader who – when pressed by events and critics – often becomes prickly, pedantic and professorial.    

 

Am I really being unfair here?  There is still no definitive answer to the “Who is this man?” question.  Because of that lacunae, contrasting, say, with the larger-than-life characters of FDR and Reagan, Mr. Obama’s image remains in flux...even (dare we acknowledge it?) turmoil.  More troubling to his early supporters and eager coattailers, the trend is relentlessly down.  And even more troubling, the trend is driven by growing disillusionment and increasing distrust.

 

In conversations with liberal friends, I’ve often advanced the first view of Obama (as the decent idealist, needing more practical advisors), in order to point out that Mr. Obama’s presidency now hinges on the benign effects of an emerging strong counter-force.  After all, Bill Clinton’s second term actually benefited from “triangulation” (accommodation with the center), made necessary after the GOP took the congress.

 

But in my most realistic moments, the third version (Obama as a closet arch-leftist) has proved almost perfectly predictive.   Moreover, in those moments of crisis that require decisive presidential leadership, the Obama 4.0 (out-of-depth lightweight) is spot on.  Whenever this president is placed on the defensive, especially in his immediate reaction to political challenges, Obama 2.0 (the grandiose narcissist) emerges.  Could it be that the real Obama is a shifting amalgam of all four?  

 

But the important pending question is this:  Just how much on-the-job growth can we reasonably expect of this president?  Jimmie Carter clung to his received wisdom with a stubborn righteousness bordering on folly.  JFK was chagrined by his mistakes, learned from them and regained his balance.  Harry Truman, having been ill prepared by FDR, was thrust into a series of grave crises, but drew on his tough prairie character, his keen instincts for negotiations, a humble awe for the magnitude of the office he had not sought, and became the tough, indefatigable student who grew stronger and smarter with each challenge.

 

From my distance, I can see nothing of these leaders in our new president.  Our best hope lies in the emergence of Obama 5.0 or 6.0:

[5]

Obama as the humble, adaptable patriot: This is a conscientious leader, not obsessed with his image, willing to live with his mistakes, eager to learn from them, actually and actively seeking out and listening to and actively considering advice outside his ideological and social circle.

 

[6]

Obama as the neo-populist chameleon, pledged to build the successful American nation that most voters want on the terms that most voters expect:  This is a political survivor with a deep respect for the populist currents now afoot, willing to break with the elites in both parties as necessary to restore American as a preeminent world economic and military power.

 

To state the problem and its solutions is to repeat the obvious:  Because this president’s surface image is tightly managed, nothing authentic has leaked out that would suggest that there is any serious internal policy debate, let alone presidential soul searching, nothing in other words, that offers any hope in a significant change of direction. 

 

And to return to my earlier, “cancer on the presidency” theme, the ongoing collapse of popular trust may be so irreversible that Mr. Obama will feel he has trapped himself in a publicity construct and policy course of his own making.  To change course (from his perspective, at least) would only make matters worse...for his image. 

 

To put the problem starkly, the image is the thing:  Narcissus of Thespiae lived in and for his own pool-reflected image, unable to see reality.   In the Greek myth, Narcissus never recovered. 

 

Groundhog Season

 

If this POTUS is to reconnect with reality and regain the capacity of balanced and popular leadership, the first sign will be manifest by what sort of Obama emerges during the so called “rogue duck” congress window, the time after the current democratic majority is routed on November 2 and the swearing-in of the next, more conservative congress in January 3, 2011.   If the old Mr. Obama pops out of the hole to encourage and sign more unpopular “last chance” legislation during that period, that act alone will tellus that Narcissus has not recovered and probably will not recover. 

 

But if Mr. Obama discourages and refuses to sign any “rogue duck” legislation, there will be real hope for the emergence of Obama 5.0 or 6.0 during the fateful last two years of his term in office.

 

Stay tuned.

 

JBG

 

 

 

The author is a California attorney who served as the alameda county Public defender 1989-1999 but gave up his ‘life of crime” for full time writing. 

 

His profile is posted at www.jaygaskill.com/Profile.pdf

 

Fans of Jay B Gaskill have praised his Lost Souls Coffee Shop, an allegory for the human condition...and The Stranded Ones, a near-future novel about a potential Armageddon-scale “immigration” problem.  Hint:  They’re not from around here.  Both books are sold as e-books by Amazon, Barnes and Noble, ireadiwrite Publishing and 10 other on-line book retailers.  Just Google “Jay B Gaskill” and the book’s title.  

 

Two very favorable Amazon reviews of “the Stranded Ones” are posted at this link --

 

http://www.amazon.com/The-Stranded-Ones-ebook/product-reviews/B002YQ2IN0/ref=sr_1_1_cm_cr_acr_pop_hist_all?ie=UTF8&showViewpoints=1&qid=1282167595&sr=8-1

 

This novel is much more like a fine mystery - you slowly peel away each layer to find another looking back at you.’
 

J. Walker

 

By the time I got to the last few chapters I couldn't break away’
M. Mull


[1] The observation is attributed to the senior Cuomo, Mario.

August 17, 2010

THE MANHATTAN MOSQUE INCIDENT - NOT ABOUT FREEDOM AT ALL

The Policy Think Site: http://www.jaygaskill.com    
As Posted On
The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1   
The Human Conspiracy Blog: http://www.jaygaskill.com/blog3 
All contents, unless otherwise indicated are --
Copyright © 2003, 2004, 2005, 2006, 2007, 2008, 2009 & 2010 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article - except for personal use - is needed.
Forwarded links are welcomed.
Contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com

 

Also posted on the Policy Think site – www.jaygaskill.com/TheManhattanMosqueIncident.htm

 

The Manhattan Mosque Incident
A Reflection
By
Jay B Gaskill

 

Putting a foreign-financed mosque in the very shadow of Ground Zero is about ideology and a not-trivial security threat; it is not about religion, much less freedom of religion.  

 

Imagine this scenario:  The current administration succeeds in moving the trial of one of the 911 mastermind terrorists to the Manhattan venue proposed by US Attorney General Holder, while at the same time the 911 mosque opens for worship.  The mosque has a capacity at least 1,000, with attendance from all over the world, and the trial attracts a concerted infiltration attempt by militant Islamists who attempt to overwhelm homeland security. 

 

This is an impending train wreck of epic proportions and it has been facilitated by a supremely naïve politically correct ethos that shows striking “courage” only when dumping on left-wing-approved targets, and no spine whatsoever when real courage is called for to face real enemies is real time in the real world. 

 

At present the homeland security apparatus (like the CIA) is being run by a political appointee with absolutely zero national security credentials.   At the same time, the presidency is increasingly sounding like a late night seminar in Jimmie Carter’s school for failed leaders.

 

As the mosque juggernaut proceeds to steamroll local and national resistance, all American are entitled to ask:

 

What happened to the thorough search of foreign Islamic sources of funding for this mosque?

 

Who has vetted the backers, supporters and string-pullers for this effort?

 

Where is the transparency?

 

How can this administration’s sense of complacency be reconciled with the post-911 apologetics (i.e., that the attacks were brought on by American misbehavior) by one of the leading Imams affiliated with the new mosque?

 

Who will pay for the security? 

 

The proposed mosque is to be erected in a commercial district.  Zoning, the New York authorities will argue, is not about religion.  Well, zoning is about patterns of use in the designated area, including security issues.  

 

And free speech has traditionally been subject to reasonable time, place and manner restrictions. 

 

Consider whether a shrine to right-wing militias could be built (with facilities for at least 1,000 attendees at a time) within a few blocks of the White House.

 

The Manhattan mosque danger is real and it will not go away in our lifetime. Thousands of the followers of Islam from all over the world will attend any 911 mosque.  

 

Remember what happened in Iraq?  On February 22, 2006, the recently liberated country of Iraq was plunged into a bitter internecine religious conflict bordering on full-on civil war when a beloved Shiite shrine (the Askariya shrine in Samarra) was blown up by militant Islamists.  Given the location, even a moderate Islamic shrine is at risk....  We might add – especially a moderate Islamic shrine.  

 

The most serious problem with naïve, politically correct thinking is that its adherents fail to recognize the gravity of the threat posed by existential, real-time, well funded evil.  Have no doubt:  Radical Islam will choose the 911mosque as a target, use it as a staging ground, make it the scene of a great martyrdom and a propaganda coup...any combination of the foregoing as it suits their agenda, by any means necessary.

 

A huge number of Americans (a growing super-majority) are dead set against this mosque.  To paraphrase Senator Kerry, this is the wrong mosque, in the wrong place at the wrong time.  Part of me wonders whether Mayor Bloomberg is a closet republican after all.  By seemingly providing political cover to President Obama, the mayor has enabled POTUS to follow his naïve instincts into a hole so deep and slippery that hundreds of elected democrats are still scrambling to escape as I write this.

 

 

JBG

 

July 10, 2010

OAKTOWN RIOTS --- AGAIN

As Published On
→ The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1
And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007, 2008, 2009 and 2010 by Jay B. Gaskill
Permission to print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com
PERMISSION TO FORWARD LINKS TO THIS BLOG OR INDIVIDUAL ARTICLES IS HEREBY GIVEN

 

OAKTOWN RIOTS -- AGAIN

 

Oakland, California.

 

Sadly and unsurprisingly, Oakland, California erupted in violence following the involuntary manslaughter verdict in the Mehserle case (the accidental killing of an unruly BART passenger, Oscar Grant, a parolee by transit authority officer who drew a firearm instead of his TASER).

 

The Oakland Police, led by Chief Batts (a highly competent African American cop) were assisted by seventeen of the Bay Area police agencies.  The destruction affected 100 businesses (windows smashed in a variety of businesses from a pawn shop to the high end Whole Foods grocery),  but the riot was confined to a nine block area near City Hall.  Police arrested more than six dozen rioters, and seized Molotov cocktails and gasoline containers among other weapons.  Chief Batts called the rioters ‘anarchists”.

 

Oakland’s hapless mayor is a 60’s leftist and the former congressman who is credited (if that’s the word) with driving almost all of the naval and military bases out of the Bay Area (he served as the chair of the Hours Armed Services Committee).  This, in part, is what he had to say about the riots:

 

“I am incredibly, extraordinarily, unwaveringly proud of the character displayed by this community.” 

To be fair, Mr. Dellums was referring to the subset of the ‘protesters’ who were just exercising their

First Amendment rights.  But the echo of the 60’s is unmistakable, particularly in the light of Mr. Dellums earlier positions in which anti-war demonstrators were also protected by the First Amendment while running amok in Berkeley.  Among the left, mere ‘property damage’ is an acceptable price to pay for dissent.  Sadly, Oakland is deep in depression and the affected businesses – as well as the larger business community – have suffered a grievous blow by this exercise.

 

Like so many urban centers, still enthralled with the victim rhetoric of the 60’s, Oakland suffers from recurring eruptile dysfunction.

 

Jay B Gaskill

Attorney at Law

 

These comments were based on a excellent report in today’s San Francisco Chronicle written by Henry Lee (whose just released book about the Han Raiser Trial, “Presumed Dead” - http://calendar.insidebayarea.com/san-francisco-ca/events/show/124751985-sf-chron-crime-reporter-henry-lee-presumed-dead-a-true-life-murder-mystery  ) is highly recommended...and not just because he mentions me.

 

___

 

Read Jay B Gaskill’s Lost Souls Coffee Shop, an allegory for the human condition.  And The Stranded Ones, a near-future novel about a potential Armageddon-scale “immigration” problem.  Hint:  They’re not from around here.  Both books are sold as e-books by Amazon, Barnes and Noble, ireadiwrite Publishing and 10 other on-line book retailers.  Just Google “Jay B Gaskill” and the book’s title.  

 

 

July 08, 2010

GUILTY - BUT NOT AS CHARGED

The Policy Think Site: http://www.jaygaskill.com    
As Posted On
The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1   
All contents, unless otherwise indicated are --
Copyright © 2003, 2004, 2005, 2006, 2007, 2008, 2009 & 2010 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article - except for personal use - is needed.
Forwarded links are welcomed.
Contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com

 

 

GUILTY

 

Bay Area Rapid Transit Police Officer Mehserle was convicted of involuntary manslaughter for the fatal shooting of Oscar Grant, a parolee whose unruly behavior prompted a police response to the Oakland BART Station last year. 

 

LINK: http://abcnews.go.com/US/jury-deliberates-transit-shooting-death/story?id=11094614 . 

 

The jury has obviously adopted the defense theory - that Officer Mehserle, acting in the heat of the moment, mistakenly drew his firearm, instead of his newly-issued TASER.  The other option, consistent with mistake, would have been voluntary manslaughter, which is triggered (no pun intended) by the eruption of a sudden quarrel or anger.  A second degree murder was also rejected by the jury, telling us that the twelve fact-finders did not find that the killing was done with any malice...racial or otherwise. 

Oakland, California is a dangerous city-on-edge, with a population containing angry citizens of all races and backgrounds who are fed up with crime, and who are deeply worried about impending budget cuts that would eviscerate its police department.  The BART Police department is a separate agency, reporting to the Oakland Port Authority.  The trial was moved to LA on a change of venue motion.

It would be tragically inappropriate for "Oaktown' to erupt in an orgy of violence and protests over this verdict.  There will be no national "Rodney King" moment here.   This was not a racially motivated execution.

 

Justice was done.

 

The defendant's sentencing hearing is next. 

JBG

 

July 02, 2010

Celebrating Earnest

July 2, 2010

This was the day that Earnest Hemingway killed himself in Ketchum, Idaho, 1961.  As it happens, I was earning college money by working on a highway construction crew somewhere in the same territory at the time.

Hemingway is quoted as saying,
 

“All good books have one thing in common - they are truer than if they had really happened.”
 

Much the same could be said about his life. 

GO TO THIS LINK FOR MY ENTIRE PIECE IN PDF FORMAT:

http://jaygaskill.com/CelebratingEarnest.pdf

 JAY B GASKILL

Attorney at Law

 

A note to the fans of my legal commentary.  I decided early on not to follow the trial of Meserle, the Oakland case where a police officer shot and killed an unruly passenger.  The officer has been  tried for murder and a verdict is expected soon.  Yes, I once tried a similar case.  I fervently hope that the Oakland residents who went ballistic when the event was captured on video will remain calm and well behaved.  No, they are not likely to be pleased with the probable outcome. 

 

May 31, 2010

BLOCKING KAGAN

As Published On
→ The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1
And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007, 2008, 2009 and 2010 by Jay B. Gaskill
Permission to print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com
PERMISSION TO FORWARD LINKS TO THIS BLOG OR INDIVIDUAL ARTICLES IS HEREBY GIVEN

 

 

PRINT VERSION: http://jaygaskill.com/BlockingKagan.htm

 

WHY BLOCK KAGAN’S NOMINATION?

 

The Obama administration is not happy with the current robust protections afforded free speech in this country.  And SCOTUS nominee Elena Kagan is the president’s stealth ally in this respect.  Yes, if confirmed, Kagan will be just one vote of nine.  But – and this is a complement to her skills – she will be a dangerous enemy of free speech. 

 

Why? 

 

Because Ms. Kagan is personable, persistent and very intelligent.  She would be just the sort of Associate Justice who could actually persuade four malleable liberals on the High Court to bend one more freedom-protecting boundary in the service of the “greater good.”  Of course, the old school liberals, like Justice William O Douglas, a free speech hawk of the first order, would be immune the blandishments of Kagan.   But Justice Douglas was replaced by justice Stephens.   

 

There is a pattern here.  As the Weekly Standard author Terry Eastland put it --

 

“But surely there are Republicans on the Senate Judiciary Committee prepared to challenge the president by standing up for a fundamental liberty. Recall that Citizens United, a conservative nonprofit, wanted to distribute a political documentary about then-Senator Hillary Clinton, a candidate in the Democratic primaries. The Court might have ruled narrowly for Citizens United but for the concession by the government’s lawyer that campaign finance law as it had evolved through McCain-Feingold could be constitutionally enforced to ban a book with the same point of view as the video.” 

 

[My emphasis.  The government’s lawyer was Kagan and the concession was made out of honesty: It was her own view.]

 

http://www.theweeklystandard.com/articles/why-obama-chose-kagan

 

Translation:  Kagan and Obama are prepared to restrict political speech, print, video, electronic speech, all in the name of “fairness” and diversity”. 

 

I just sent an explanation of Kagan’s dangerous Free Speech theory to a friend, who was trying to grasp why she, in particular, was in any way worse than any other liberal nominee.   He was confused by Kagan’s “diversity” rationale, and evidently thought she must have been using it in the more familiar workplace-hiring sense. 

 

Not.  

 

This is a far more dangerous concept, one that strikes at the very heart of the traditional free speech firewall that has served to protect unpopular and disapproved speech for the last turbulent century.

 

The government control of the internet and the covert censorship of broadcast content will be fully protected if Ms. Kagan’s “speech diversity” theory ever gains traction.  

 

I have reluctantly, but decisively concluded that Ms. Kagan’s nomination perfectly correlates with a general stealth assault on the First Amendment free speech firewall by members of this administration.

 

So this is not about the so-called “diversity” cases at all.  

 

Diversity in this sense is the “good cause” of a beneficent government ever watchful of our diet and the quality of our political discourse. 

 

It is about giving the power of censorship to the legislative branch based on a claim, made by the executive or legislative branch, that justifies censoring for a “good cause”, to wit: achieving “speech diversity” by suppressing one speech to make room for other speech.  It is “soft” censorship in order to correct an imbalance of speech (in this instance as perceived through the lens of the left).   Code: Not enough “diversity” being heard means too much right wing radio and internet chat.  Warning to liberals:  It works the other way around, too as the late great Justice William O Douglas would attest.

 

I now believe that this low key, but potentially catastrophic assault on free speech is close to Mr. Obama’s heart.  In a May 24 Weekly Standard piece, “The Thinness of his Skin”, in the Scrapbook section, the author analyzed the President’s recent Virginia commencement address: 

 

“But for startling insight into the mind of our 44th president, we cannot do better than his recent commencement address at Hampton University in Virginia. Most graduation speeches are predictably anodyne and tend to rely on well-worn generalities. Obama, by contrast, was refreshingly specific at Hampton: He does not like the newfangled means by which many of today’s college graduates—or anyone, for that matter—obtain information.

 

“You’re coming of age in a 24/7 media environment that bombards us with all kinds of content and exposes us to all kinds of arguments, some of which don’t rank all that high on the truth meter. With iPods and iPads and Xboxes and PlayStations—none of which I know how to work—information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation.

 

‘“Some of the craziest claims can quickly gain traction,” he added, referring to talk radio and blogs.

 

“These well-chosen words tell us a lot about Barack Obama, and none of it good. To begin with, it is abundantly clear that Obama may well be the president with the thinnest skin since James Knox Polk, who at least had the decency to rail at his critics in the privacy of his diary. Obama is not only indignant about criticism, hostile comment, and ‘the craziest claims’ about himself and his policies: He is furious that citizens have access to different viewpoints without regulatory control. Public discourse in a free society is not a virtue in itself, according to the president; it should be a ‘tool of empowerment’ or ‘means of emancipation,’ not ‘a form of entertainment.”’

The remedy?  If Justice Kagan ever commands four more votes on the High Court, some of the voices that irritate our new president will be silenced or curtailed based on the contents of their discourse.

 

I’ve already done an analysis of Kagan’s University of Chicago Law Review that she wrote when her colleague Barack Obama was also lecturing there. 

 

Kagan’s nomination is about whether and when, in the name of the public good, the government - of whatever size - can legitimately censor public or private communications based on an assessment of the specific contents of a particular communication. 

 

Much is said about whether a prospective justice can be subject to a “litmus test”.  Yes.  Yes.  Yes.  The robust protection of Free speech is the litmus test.  And Kagan’s stealth nomination is the moment of truth for the friends of free speech who now sit in the US Senate.

 

The original and current constitutional rule, very bright line as these things go, is that - from a content-neutral point of view - the government (meaning the legislative branch) may only “regulate” (i.e. prohibit) speech based on a “time, place and manner” analysis.  In one case the high court noted that there may be an inappropriate time and place to shout a false warning - “FIRE!”, especially in a crowded theater.  It also crafted the so called “fighting words” exception (manner and place), and a few other very tight exceptions.  

 

Ms. Kagan is promoting a truly radical departure, one in which the legislative branch would be permitted to act more like a newspaper editor with the power to control “balance"”, by actually curtailing disfavored speech because there was too much of that POV, compared to this POV....  This is a metaphorical editor who could dictate contents on a radio station, a magazine, a paper or limit time-on-air, the distribution and number of copies, much like a politically aggressive FCC Chairperson could do for broadcast outlets.

 

All of this content censorship would be accomplished (in Kagan's theory) with the “best” of motives.  But the leading Supreme Court free speech cases have been founded on the view that governments cannot be trusted to evaluate speech content, except in the most extreme cases (pornography for children), because, inevitably, the in-power group will be biased against the ideas and ideologies of the out-of-power groups.  

 

The authors of the Bill of Rights were keenly aware of Lord Acton’s caution that “power corrupts.”  This core wisdom informs our “checks and balances” structure of government, the separation of powers, the limitation of powers and the bright-line clear language in the Bill of Rights, such as  the government “shall make no law” abridging the freedom of speech.  


Elena Kagan differs so sharply on this one issue from our whole constitutional history to date that she fully warrants the designation radical.  

 

Any other candidate whose name has come up so far would be far better on this issue.  

Free speech is one of those bedrock principles.  The most liberal justices in US history remained principled defenders of free speech and against any content censorship, no matter how “trustworthy” and benign' the alleged government purpose.  Ms. Kagan’s “speech diversity” theory is truly a Red flag, one that transcends ideology.

 

But most of Kagan's true views have been well hidden.  We are very lucky that this piece (in the University of Chicago Law Review[1]) got the attention it did.  The remaining question is whether more people will pay attention.  

 

I have apparently overestimated the “I give a s***” factor for something so essential to the preservation of our core liberties.  

 

Thirty years ago, Kagan's article (if not satisfactorily explained-away by the nominee) would have been an immediate DQ.

 

Times change but bedrock principles do not.

 

Jay B Gaskill

Attorney at Law

 

For more, go to -- http://jaygaskill.com/KaganFreeSpeechLitmusTest.htm

 

 

SHAMELESS SELF PROMOTION SECTION

 

Read Jay B Gaskill’s Lost Souls Coffee Shop, an allegory for the human condition...and The Stranded Ones, a near-future novel about a potential Armageddon-scale “immigration” problem.  Hint:  They’re not from around here. 

 

Both books are sold as e-books by Amazon, Barnes and Noble, ireadiwrite Publishing and 10 other on-line book retailers.  Just GoogleJay B Gaskill” and the book’s title.  

 

 



[1] A copy in pfd format is available on my website – http://www.jaygaskill.com/KaganArticle.pdf