The Heroism of Ruth Bader Ginsburg and the Abdication of the Media

I was disappointed but not really surprised that The New York Times called out Supreme Court Justice Ruth Bader Ginsburg yesterday for her apt and heroic criticism of Donald Trump, worrying that "Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit".  The Times has sunk a long way, both in its reporting and editorials, since I read it every day in my high school cafeteria in the 1960s.   Come to think of it, it was painfully slow in getting it right about how wrong the Vietnam War was back then, too, but at least it had its moments with its publication of The Pentagon Papers.   The same can be said about the Washington Post, its publication of The Pentagon Papers, and its criticism of Ginsburg, calling her comments about Trump "inappropriate" and "much, much better left unsaid by a member of the Supreme Court".

"Better left unsaid?"  If either editorial board had more than a superficial knowledge of the US Supreme Court and its history, they might have come across the following from Associate Justice Louis Brandeis:

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.  Concurring opinion, Whitney v. California, 274 U.S. 357 (1927).

But Trump has risen and thrived due to ignorance of history and the lessons of what can happen in a democracy when it elects someone like Adolf Hitler Chancellor of Germany.   No, I don't think Trump is exactly the same as Hitler, but Trump is as bad as it gets these days as a major party candidate.   And while the media fidget and express concern that Trump's critics have gone too far - including Chris Matthews, who on MSNBC yesterday afternoon expressed concern that Hillary Clinton may have gone over the line in her speech in Springfield, Illinois yesterday, in which she wondered if Trump might use the military to silence his critics - Trump continues to threaten many of the very foundations of our democracy, including the press itself.

The media, and especially The New York Times, made things worse in the build-up to the Iraq War, uncritically supporting the US and British claim that Saddam had weapons of mass destruction. They did it again with Trump in the early days of his campaign, treating it as a source of humor and a magnet for higher ratings and ad sales, rather than denouncing him for what he is and has done, and backing that up with relentless investigative reporting.

So we have the media to blame, at least in part, for where we are today with Trump about to get the Republican nomination for President, and they attack Ruth Bader Ginsburg for bravely shouting fire in the crowded theater of our democracy?   I've got some news and a little more history for The Times and the media: shouting fire when there really is a fire is exactly what a responsible citizen is supposed to do (it's falsely shouting fire that Oliver Wendell Holmes Jr. warned about in his famous 1919 Supreme Court opinion).  

We live in a country in which the Republicans daily flout the Constitution by refusing to hold hearings on Obama's Supreme Court nominee, media such as The New York Times abdicate their responsibility, and both unsurprisingly are roused to come out and attack Ginsburg for doing her job as a citizen.   With any luck and a lot of hard work, Trump will lose and the Republicans in Congress will be voted out of office.   As for the traditional media - well, they'll likely continue to wither and be replaced by the Internet, which has already become the bedrock of our democracy.

PS - News just broke that Ginsburg expressed regret regarding her comments about Trump - doesn't change in the slightest that what she said about Trump was right and she was right to say it.

The Difference Between the First and Second Amendments

You often hear well-meaning arguments in favor of gun restrictions and limits on the Second Amendment, that no rights granted under the Bill of Rights are absolute, as evidenced by the fact that, even with the First Amendment, you can't "shout fire in a crowded theater".

Aside from incorrectly citing Justice Oliver Wendell Holmes, Jr.'s 1919 opinion in the US Supreme Court case Schenck v. United States which offered "falsely shouting fire in a crowded theater" as the kind of speech the First Amendment should not safeguard - after all, if there really was a fire, it might be a good idea to shout about it - the example when used in support of gun control suggests a false equivalence between words and bullets.

Words, whether spoken or written, do not kill.   Bullets when fired from guns often do.  Words can of course incite to riot or other criminal activity, and, if so, should be punished if there is clear criminal intent. But otherwise, the First Amendment's providing that "Congress shall make no law ... abridging the freedom of speech, or of the press" should indeed be taken literally and as absolute. When that fundamental principle is violated - as when Schenck was arrested for distributing anti-war leaflets, or Nixon tried to prevent The Washington Post and The New York Times from publishing The Pentagon Papers - those violations should not be upheld by the US Supreme or any courts (which is why I thought Holmes' decision was wrong, and the Burger Court's in favor of the publication of The Pentagon Papers was right).

But bullets are not words, and the Second Amendment never provided any absolute wording about what Congress cannot do in regulating weapons. The Second Amendment does not say "Congress shall make no law" regarding possession of firearms.  What it does say is "the right of the people to keep and bear arms shall not be infringed," and that's something quite different.  Surely that wording does not guarantee the right of the people to bear any arms they choose.  We all would agree, presumably even the NRA, that the Second Amendment does not give people the right to bear rocket launchers with nuclear-tipped weapons.   Where we draw the line can and should be debated.   But assault weapons that can kill and injure hundreds in a few minutes seem manifestly way over any sensible line.

The bottom line of all of this is that we can insist on limitations of the right to bear arms under the Second Amendment without incursions of our absolute rights under the First Amendment.  Such an approach would maximize our effort to safeguard both life and freedom.