Appeals Court Says The First Amendment Protects Minnesota Woman's Right To Be Super-Shitty About Nearby Islamic School

from the and-that's-how-it-goes dept

The First Amendment protects unsympathetic plaintiffs just as much as it does those able to obtain mass support for their arguments. This case, originating from Bloomington, Minnesota, involves someone whose motives seem bigoted but whose actions were clearly covered by the Constitution.

When a new school catering to immigrants moved into the neighborhood, Sally Ness took action. An agreement between the city and the Dar Al-Farooq School allowed students of the school to use a nearby park for recreation. Ness felt the school and its students were violating the terms of the agreement and took to filming students at the park, as well as the traffic flowing to the school to pick up students.

This resulted in harassment accusations from parents of these students, which the Bloomington PD investigated, visiting Ness at her home and, later, telling her to stop filming students because parents and school administrators might be feeling “intimidated” by her actions. The officers told her to “take her pictures” and “move on.”

Ness also frequently attended city council meetings to voice her displeasure with the school and its apparent abuse of the public park. After a few meetings, the council amended its harassment law to include something that very specifically targeted Ness’ actions.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child’s parent or guardian.

Hello, First Amendment violations. This not only outlawed Ness’ documentation of park use by school students, but also more “acceptable” recordings of children, like journalistic efforts or capturing evidence of criminal activity by minors.

Ness sued. And the claims she advanced were rebuffed by the federal court handling the case. The court said she had no standing to challenge the amended law, despite the fact the amendment was obviously added to target her documentation of the park. It said the DA had refused to prosecute previous allegations and, apparently, felt this would always be the case, even with the addition of the amendment.

It also said the new law was “content neutral” because it did not target photographers, but rather what they recorded (???).

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

But it very obviously targeted the content of Ness’ recordings. It forbade her from photographing children, which were always the subject of her recordings, which were supposed to show the school was violating its agreement with the city to provide limited, exclusive use to students for recreation.

As the district court saw it, the ends could not have been achieved without this law, which made it a good law.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Ness appealed. And the Eighth Circuit Appeals Court says [PDF] the lower court is wrong about the ordinance, the First Amendment, and its definition of the legal term “content neutral.” (h/t Volokh Conspiracy)

The court says of course this is protected speech. It is information gathering about issues of public interest: the possible violation of agreements with the city by a local school. That the information gatherer appears to be motivated more by bigotry than actual concern about violated contracts (something only aggravated by Ness’ decision to bring the American Freedom Law Center on board as her representation) doesn’t matter.

Applying the distinction between speech and conduct to this case, we conclude that Ness’s photography and video recording is speech. Ness wants to photograph and record the asserted “non-compliant and overuse of Smith Park” by the Center and Success Academy, and she wants to post those photographs and videos to an internet blog and a Facebook page “in order to inform the public” about the controversy. Thus, her photography and recording is analogous to news gathering. The acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy.

Since this is protected speech, the court needs to determine whether it’s narrowly tailored enough to serve the public’s interest while still protecting their constitutional rights. The court says this ordinance fails to pass that test.

We may assume that a narrowly tailored ordinance aimed at protecting children from intimidation and exploitation could pass strict scrutiny. The present ordinance, however, is not narrowly tailored to that end as applied to Ness. Ness seeks to photograph and video record a matter of public interest—purported violations of permits issued by the City—and does not intend to harass, intimidate, or exploit children. Ness also advised the City that it was her practice to “block” out the identities of juveniles when she posts images online, and the City produced no evidence to the contrary. Yet her photography and recording is nonetheless proscribed by the ordinance.

The strict scrutiny test fails and so does the city’s law, which was clearly written to discourage Ness from engaging in documentation of perceived violations by the school and its students.

We therefore conclude that the ordinance, as applied to Ness’s activity that forms the basis for this lawsuit, is unconstitutional under the First Amendment.

That makes it pretty much unconstitutional for everyone. There are plenty of legitimate reasons for recording children in a park: journalists with kid/park-related stories to cover, suspicion of criminal activity in the park committed by minors, the inadvertent capture of this area by homeowners’ security cameras, etc.

Ness’ motivations may have been limited to finding literally any reason to NIMBY a school catering to foreign students and their Islamic faith, but that still doesn’t justify the city crafting an unconstitutional law to specifically target her protected speech. Protecting speech doesn’t mean only protecting speech you like. And now the city knows it can’t target Ness in this way without violating the First Amendment. Maybe it will do the smart thing and let Ness tire herself out attempting to prove the non-whites in her neighborhood are violating the terms of their agreement with the city.

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Comments on “Appeals Court Says The First Amendment Protects Minnesota Woman's Right To Be Super-Shitty About Nearby Islamic School”

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68 Comments
Anonymoussays:

Sally Ness has apparently been at this shit for 5 years now. The Muslims there have been targeted constantly, and there was a fucking bombing there.

Sally Ness is a bigoted individual who knows exactly what she’s doing and doesn’t seem like she’s gonna tire out any time soon. Telling the city and the Muslim community to just deal with it and wait for Ness and her bigoted pals to get tired shows a ludicrous and gross lack of research on Tim’s part.

Anonymoussays:

or capturing evidence of criminal activity by minors
suspicion of criminal activity in the park committed by minors

Or criminal activity committed against minors by non-minors. Or non-criminal, but nevertheless questionable actions committed against minors by non-minors. This includes actions committed by these minors’ parents or legal guardians.

Kind of "interesting" how these parts of the story don’t highlight nearly as much that minors are often victims of problematic conduct. And therefore, a law that says "no filming minors" can easily cause or aggravate harm to minors by making it much harder to draw attention to their issues legally.

Also, in this case the law says that "no person" may film a minor without parental consent. I’m not sure about the specifics, but this sounds like it can also include other minors. Which means high school students filming friendly videos of each other suddenly become "harassers" of each other; in other terms, such a provision says that minors do not have the right to consent to a recording themselves.

Also, I wonder if such a law could be used as an excuse by bad-faith police actors to turn off their cameras because they may accidentally capture minors…

That Anonymous Cowardsays:

Ah MN, where the open minded white people got Wakefield to come and speak at an event to make sure their new Somali neighbors wouldn’t get their children vaccinated against measles.

She sounds like a horrible person, but she has rights too.
One can only hope that the immigrant neighbors are aware of their rights and know when she actually crosses the line.
This type of person knows her rights, but often has a problem understanding other people have the same rights & likes to trample on them.

Huh, I wonder how she would feel if kids & parents started photographing her & recording what she was yelling.

That Anonymous Cowardsays:

FSM help me I read her ‘blog’.

There are complaints about parking, headlights shining on homes, a complaint she saw a car that kind of looked like a car that had an accident later, when the "real" religious school used the building they were much better neighbors.
Making lots of assumptions, filing FOIA requests based on an assumption, then being pissed off when the assumption was wrong so there were no secret records about how the city secretly funneled money into repairing the driveway of the property & didn’t make the school pay but she KNOWS that they did & should have billed the school.

I could see an argument that the parking situation is unacceptable, with some people parking poorly on the street, but in her mind its the fault of the property not the idiots who parked like idiots.

Shes set her course to permanently pissed off, the property is at fault for all the bad, & the city is helping them do it… which means even if she has a legit gripe the fact she is following kids muttering to herself looking for ways to claim they are up to no good, no one listens to anything she says.

With all of this time into her crusade, I doubt anything could appease her at this point short of driving the mosque out.

sumgaisays:

Working off the above response about filming her, that’s just the first step.

2) Find someone with a shotgun mic and record her mutterings at the same time. Who knows, she may be mouthing actionable threats.

3) As a group, the parents and their kids should walk together towards her as they leave the park, potentially "forcing" her to move aside, or to retreat in some fashion. If/when the cops might question some of those group members, "Officer, we were just taking a stroll with our children, showing them some of the sights of the neighborhood". Always being peaceful while going about their lawful occasions, you understand.

4) Compliment her yard and house, unless they are an absolute dump.

5) Best scenario: Start including her. Invite her to come to activities, albeit with both parents and kids. Keep it up, see if she relents. From the sound of it, I have to wonder if she’s lonely, and being asked to act in a grandmotherly fashion might be all that’s needed. But document everything, don’t assume that she won’t misinterpret a good will gesture, and try to take it to some kind of authorities.

bhull242says:

IDTTMWYTIM

It also said the new law was "content neutral" because it did not target photographers, but rather what they recorded (???).

Wait… Isn’t that completely backwards?

Granted, I’m pretty sure that only targeting photographers or something would also be unconstitutional, but I’m fairly sure that if the law targets the content of speech, that’s not exactly “content-neutral”. It’s kinda in the name.

Anonymoussays:

The right of individuals to photograph street scenes and document their ideas is one thing. And yet, Amazon is using its cameras, installed at the doors of willing dupes, to make a database of everything that happens on every street in town, which I assume they can search with high quality facial recognition. Is there some point where you object that constant surveillance of every public place is too much?

My thinking about it is that free speech doesn’t misguide, and if the powers of Amazon disturb us, it’s because no company should be that large period, and perhaps more fundamentally, companies should have fewer roles in society so that they can’t abuse personal information the way they do now.

Stephen T. Stonesays:

Sally Ness is a bigoted individual who knows exactly what she’s doing and doesn’t seem like she’s gonna tire out any time soon.

The First Amendment doesn’t care. Her speech, abhorrent and distasteful though it may be, still deserves (and receives) the same legal protection as yours. Free speech laws must protect unpopular speech or else such laws are worthless.

bhull242says:

Re:

That’s not what the court said. It said that the specified ordinance is unconstitutional because it is not narrowly tailored and is not content-neutral.

Insofar as the city is interested in protecting privacy, having a requirement to blur faces of children whose parents did not give consent before publicizing the material should be sufficient.

Insofar as the city is interested in stopping harassment, having a limitation in the ordinance that requires the city to prove intent to harass or something might work.

However, the city ordinance as it was had no such things in them. Anyone recording a child without their parent’s permission regardless of intent and regardless of any attempts to conceal the identities of any subjects would be in violation of the ordinance. That simply is not narrowly tailored.

Anonymoussays:

Re:

Ok, so, Sally Ness using her unpopular speech over the course of five years to foment continued mistrust and attacks against a marginalized community is something that needs to be protected under the First Amendment, and the city and its Muslim community just need to suck it up and grow thicker skin. You believe it’s fine for bigots to use their First Amendment rights to help deprive others of the ability to feel safe, to actually be safe, and accepted in this country. Got it.

Tanner Andrewssays:

Re:

Her speech, abhorrent and distasteful though it may be, still deserves (and receives) the same legal protection as yours

Her speech, abhorrent and distasteful though it may be, still receives the same legal protection as yours.

There, fixed that for you.

Her speech deserves denunciation, negative flattery, and perhaps shunning of the speaker. But it receives legal protection, same as the Illinois Nazis in Skokie, because if it did not receive such protection then the speech which deserves it might also not receive it.

Who gets to decide? Well, I get to decide for myself that her speech is unworthy of protection. But the First Amendment authors got to decide that it receives protection.

Scary Devil Monasterysays:

Re:

"Free speech laws must protect unpopular speech or else such laws are worthless."

Unpopular speech is one thing. This type of behavior goes far beyond that. Sorry, Stephen, but this is a clear example of the slippery slope going the other direction, towards stalking and harrassment.

Most countries in europe have some form of restriction on speech used to attack and/or marginalize minorities. And those countries are all, today, far more healthy examples of liberal democracies than the US. At some point I think we need to let empirical evidence have its day – the US version of Free speech is harmful to democracy, not beneficial. Everything has limits.

Anonymoussays:

Re: Re:

Yeah, it’s like… in the Sahan Journal article, it talks about how Ness has been doing this for a long, long while.:

Sophia saw Ness the first time she visited Dar Al Farooq for the Eid holiday in August 2013.

“Sally Ness was there walking around with a video camera, videotaping everyone she could who was walking to the mosque,” Sophia said. “I was so shocked because she was walking around sort of mumbling to herself angrily.”

Sophia was alarmed, but her friends who had been going to Dar Al Farooq for much longer had brushed it off. They were used to seeing Ness with a camera.

“Videotaping congregants has been a longtime thing,” Sophia said. “It was something that we, unfortunately, just had to accept as part of going to the mosque.”

This long-running behavior isn’t something that deserves to be protected.

Ninjasays:

Re: Re: Re:

That’s why I asked. I’m fairly sure there are laws in place for abusive behavior like hers. She may have some point (ie: minors violating the rules) but ostensibly recording the kids for years seems to violate other rights to me. Where is the line drawn? I’d be freaked out if my kids were in that school with some freak recording them so frequently.

Stephen T. Stonesays:

You believe it’s fine for bigots to use their First Amendment rights to help deprive others of the ability to feel safe, to actually be safe, and accepted in this country.

No, I don’t. I think what Ness does is some sick sociopathic shit, and I wouldn’t feel the least bit bad for her if someone popped her in the mouth Richard Spencer–style for doing what she does. (I neither endorse nor condone such behavior, but I sure as shit won’t condemn it.) But legally, she has the right to say and do what she does. I’ll condemn her speech and hope those who oppose her find a way to stop her that doesn’t piss all over the First Amendment. But I won’t agree that she deserves to have her right to speak freely stripped from her only because I disagree with what she says and does with it.

Anonymoussays:

Re: Re:

It doesn’t need to be protected by the First Amendment. This isn’t a la carte decision choices. It is protected by the First Amendment. Full stop.

Now, if someone can legit get her for harassment, so be it, but apparently no one has a case.

Yes, she’s an asshole. Maybe someone retired or such can sit in the park all day and record her.

bhull242says:

Re: Re:

You believe it’s fine for bigots to use their First Amendment rights to help deprive others of the ability to feel safe, to actually be safe, and accepted in this country.

“Fine” =/= “legal”

Not everything that is immoral is or should be illegal or unlawful, and not everything that is or should be legal and lawful is necessarily moral.

Scary Devil Monasterysays:

Re: Re:

"…and the city and its Muslim community just need to suck it up and grow thicker skin."

In america? Yes.

more civilized nations have realized that the Paradox of Tolerance is real and that opinions purely rooted in bigotry and racism cause actual harm and are to be treated like any other malicious call for harm.

But the US has become the textbook example of why tolerating the intolerant leads to the breakdown of a formerly tolerant society when an ever increasing amount of people starts believing that they are entitled to act like utter shits unto others.

Anonymoussays:

Re:

When someone uses their right to speak freely to, over the course of years, intimidate a marginalized community and foment mistrust and hatred toward them, then that looks very much like they’ve abused that right in order to hurt others. When people abuse their rights to cause other people harm, that’s when they need to face actual legal consequences. So far, Ness seems to have faced none. Would it really “piss all over the First Amendment” if some bigoted slimeball who has engaged in this lengthy targeted fear-stoking campaign against the local Muslim community faced legal punishment? Or is that the Slippery-Slope-Fallacy that you’ve internalized and keep treating as an incontrovertible truth? My guess is that it’s the latter.

The Muslim community’s First Amendment freedom to exercise their religion and their general freedom to go about their daily lives without fear seems to matter less to you than some racist turd’s ability to constantly surveil and record them and write a paranoid blog to spread mistrust of said community. Government surveillance of Muslim Americans is bad and has always been bad. But if a private citizen decides to constantly blog and photograph and record the daily goings-on of a Muslim American community over the course of years? Guess that’s something that deserves to be protected to the death in Stephen T. Stone Sage Freehaven’s book!

You really ought to change your fursona to a worm, Freehaven. It would go a lot better with how fucking spineless you are.

Stephen T. Stonesays:

When people abuse their rights to cause other people harm, that’s when they need to face actual legal consequences. So far, Ness seems to have faced none.

Has she broken a law that has withstood legal scrutiny? If she has, I agree⁠—consequences all around, spare no expense, she fucked around and needs to find out. But if she hasn’t, she shouldn’t face those consequences. I agree that her behavior is awful; that alone can’t justify violating her civil rights.

Would it really “piss all over the First Amendment” if some bigoted slimeball who has engaged in this lengthy targeted fear-stoking campaign against the local Muslim community faced legal punishment?

Yes. Unless her speech and actions have crossed a line into illegality under a law that is constitutionally sound, she has the same rights under the First Amendment that you and I both share. I don’t have to like that fact to accept it.

The Muslim community’s First Amendment freedom to exercise their religion and their general freedom to go about their daily lives without fear seems to matter less to you than some racist turd’s ability to constantly surveil and record them and write a paranoid blog to spread mistrust of said community.

I hate that the Muslims in that community can’t feel safe because of Sally Ness. I hate how nothing can apparently be done about it within the confines of the law. Nothing about this situation makes me happy⁠—especially her victory in court.

That said: I can’t justify a legal punishment against her if she didn’t break a law that withstands legal scrutiny. Maybe Bloomington officials can come up with a law/statute that withstands that scrutiny and lets the city punish Ness for her bullshit. I hope they do. But until then, she isn’t flagrantly breaking any laws, and they can’t punish her only for being a shitty human being.

if a private citizen decides to constantly blog and photograph and record the daily goings-on of a Muslim American community over the course of years? Guess that’s something that deserves to be protected to the death

If she has broken a law, I say punish her. If the law she is accused of breaking doesn’t withstand legal scrutiny, the government shouldn’t get to say “who cares” and punish her anyway. Trampling on everyone else’s rights to get at her throat will only cause more problems than it solves⁠.

Anonymoussays:

Re:

We have talk show hosts, comedians and more who made fun of Trump for years. It did nothing to stop him and his ilk from trashing what they wanted to trash. They were constantly treated like a joke rather than the legitimate threat that they were. I remember Jon Stewart on The Daily Show jokingly twiddling his nipples at the idea of Trump running for President in 2016, all the juicy ratings it would rake in. I sometimes wonder if Jon feels any shame or regret for acting like he did and not taking Trump seriously. But he’s probably too busy being a rich white neoliberal douche to actually care.

Anonymoussays:

Re: Re: Re:

We could start by thinking about our rights more as things that need reconciling. Jamal Greene was on the Techdirt podcast earlier this year discussing his book and the case he presented for the idea of rights reconciliation was rather good, in my opinion. A Muslim community’s right to exercise their freedom of religion and go about their daily lives without fear should outweigh the right for bigoted people or individuals to engage in a years-long fear-stoking campaign that involves recording and surveilling them constantly.

Anonymoussays:

Re: Re: Re: Re:

sounds to me like this is the start of a years long fear campaign against those people who actually value peoples right to speak freely.

So you’re saying that your opinion is bad and needs to (either now, or in the future when you have had the chance to "torment" people for years) silence.

Well ironically those of us who disagree with you, also don’t think you should be silenced.

naschsays:

Re: Re: Re: Re:

A Muslim community’s right to exercise their freedom of religion and go about their daily lives without fear should outweigh the right for bigoted people or individuals to engage in a years-long fear-stoking campaign that involves recording and surveilling them constantly.

So now you set up a mechanism where one group can say "those bad people are making us afraid", and the government shuts down the other group’s speech. Hopefully you can see how ripe for abuse that would be.

Anonymoussays:

Re: Re: Re: Re: Re:

sounds to me like this is the start of a years long fear campaign against those people who actually value peoples right to speak freely.
So you’re saying that your opinion is bad and needs to (either now, or in the future when you have had the chance to "torment" people for years) silence.

You’re putting words in my mouth. I don’t want a fear campaign. I don’t want to “torment” people for years. I think the status-quo is busted, and that this situation where Sally Ness and her local allies being able to legally stoke fears & paranoia as well as constantly surveil the Muslim Americans in Bloomington for years points to how busted that status-quo is. I think that Jamal Greene’s work is useful for figuring out how to fix that busted status-quo.

Anonymoussays:

Re:

Not in the Constitution, but the Declaration of Independence’s “Life, Liberty, and the Pursuit of Happiness” would apply with regards to “Their general freedom to go about their daily lives without fear” that I said farther up. The Muslim community of Bloomington being able to live their lives without daily surveillance and threat by others who have actively sought to do them harm and caused them harm is what I mean by “go about their daily lives without fear”.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

While what Sally Ness has done is nothing more than actual harassment, you still have to prove that she was actually harassing these people.

While she has a right to "voice her opinion", so does the community, just not by violat8ng 1A.

Maybe it’s time to take the fight to her, her cronies, and whoever is funding this clear harassment campaign.

sumgaisays:

Re: Re:

Indeed, LC has it correct – the Declaration wasn’t much more than a "memo" to King George III, telling him in no uncertain terms to fuck right off. The "pursuit of happiness" was a middle finger to George in that the colonists were extremely unhappy with his policies, his taxes, his "occupying forces", and so on. Consider it the Founder’s way of saying "get off my lawn!", because it had nothing to do with how the newly independent citizens were to conduct their daily business with each other.

In those days, an armed citizen did not live in fear so much as he lived in a state of preparedness, ready for anything that life might throw his way. And instead of whining about shit, he simply dealt with it as appropriate. What I wanna know is, where in the fsck did this country go wrong?!

Anonymoussays:

Re: Re: Sally Ness

Mainstream Muslims like Mainstream Christians respect other people rights. Try reading Malala Yousafzai’s Story, and note that her parents have supported her through her education and political activites despite her being shot, and forcing the family into exile in Britain.

Extremist Muslims, like extremist Christian like to trample over people rights to enforce their theocratic views on everybody, like Texas and its abortion laws.

bhull242says:

Re: Re: Re: Re:

I think it depends. I believe it may be possible that this woman’s behavior could be considered unlawful stalking and/or harassment under some hypothetical law that would pass constitutional muster, and I don’t necessarily have a problem with that being the case.

I’m not going to pretend to know what that law would be or if such a law exists somewhere in the US, though. That is beyond what a non-expert like myself would know.

Rockysays:

Re:

If she singles out one particular private school because it’s Muslim, she is not really concerned about it possibly violating the terms of their agreement they have with the city – she’s looking for anything to pin on them because they are Muslim.

If she where even one bit concerned about other private schools violating any agreements she would also spend time documenting their activity too, but by the evidence available she don’t thus we can conclude she is a bigot.

naschsays:

Re: Re:

going the other direction, towards stalking and harrassment.

Minnesota has stalking and harassment laws, so either she’s not violating them, or the problem is with law enforcement refusing to do anything about it. Since the city went as far as creating a new law to stop what she was doing, the former seems more likely. Is it possible the state law is inadequate? Sure, but this ordinance is clearly not the right solution.

bhull242says:

Re: Re:

I strongly disagree, in part because you fail to understand the issue.

This is about one particular ordinance. Whether or not it’s meant to punish this particular woman for her behavior, this ordinance is still unconstitutional. Period.

That’s not to say it wouldn’t be punishable under some other, constitutional law or ordinance. There likely are some stalking and/or harassment laws in the US that would punish her behavior without running afoul of the Constitution. However, those laws aren’t at issue here. The law was about taking photos of children without their parent’s permission, period, and that is unconstitutional no matter how you slice it.

That’s why we protect unpopular speech. Better that a guilty person goes free than an innocent person gets punished.

Scary Devil Monasterysays:

Re: Re: Re: Sally Ness

"Extremist Muslims, like extremist Christian like to trample over people rights to enforce their theocratic views on everybody, like Texas and its abortion laws."

There is an unfortunate case to be made that "mainstream" religious people only become tolerant by giving several of their core teachings a pass. This is true for any of the abrahamic religions rooted in times less forgiving of the other.

That above all means religion has always been the safe haven of subdued yet confirmed bigots.

bhull242says:

Re: Re: Re:

No. Just because there is no recourse using the legal system doesn’t mean there’s no recourse.

Also, I’m not convinced that there is no recourse using the legal system in this particular case. The specific ordinance being challenged here was unconstitutional, but that doesn’t mean that there couldn’t be—or isn’t—some other law that is or would be constitutional that would punish her behavior.

bhull242says:

Re: Re: Re: Re: Re: Re:

But here’s the thing: is this woman’s behavior or speech demonstrably doing any of that? If not, then all we have is their unverifiable assertion that it does, and the distinction you draw is without difference.

Also, for the millionth time, immoral is not and should not be necessarily illegal or unlawful. There are plenty of things I don’t want the government to outlaw that I think are abhorrent and/or dangerous.

Scary Devil Monasterysays:

Re: Re: Re: Re:

"No. Just because there is no recourse using the legal system doesn’t mean there’s no recourse."

Recalling your prior commentary on these boards I doubt we’re talking about the second amendment – which is usually the shoe-in argument I keep hearing from all too many. I honestly fail to see any recourse unrooted in the government violence monopoly which could either shut that lady up or keep her away from being a total douchebag bringing the joys of stalker victim syndrome to a minority community.

"…that doesn’t mean that there couldn’t be—or isn’t—some other law that is or would be constitutional that would punish her behavior."

I find it unlikely, on the face of it. You can’t very well issue a restraining order protecting an entire community, and you can’t even invoke such an order without a threat assessment a few orders of magnitude beyond "persistent bullying".

In most countries in europe it’d be pretty clear-cut. If your behavior in public is found to be deliberately malicious and/or rooted in racism/bigotry, legal sanction can usually be applied.

The US, on the contrary, appears to take quiet pride in the fact that everyone’s entitled to be a malicious douchebag, no matter how much direct harm that actually causes. And that’s just taking freedom to the point where the Paradox of Tolerance comes in and a community of civilized people are made to suffer because they are not the same sort of assholes as the stalker making their lives miserable and the law remains solidly on the side of the abuser rather than the victims.

Anonymoussays:

Re: Re: Re: Re: Re:

The US, on the contrary, appears to take quiet pride in the fact that everyone’s entitled to be a malicious douchebag, no matter how much direct harm that actually causes.

I understand the EU’s take on it, but my concern is "if the government can declare certain types of speech illegal, what happens when the government decides that it’s YOUR speech it doesn’t like?" I don’t like where that goes.

All the First Amendment really says with regard to speech is that the government can’t punish you for your speech. There are alternatives. Public shunning and humiliation can work wonders. We’ve seen people lose their jobs over racist and bigoted behavior caught on camera. Some will call it "cancel culture" but others will say "being a malicious douchebag has consequences."

bhull242says:

Re: Re: Re: Re: Re:

I honestly fail to see any recourse unrooted in the government violence monopoly which could either shut that lady up or keep her away from being a total douchebag bringing the joys of stalker victim syndrome to a minority community.

Social consequences. Name them and shame them. Record them to potentially gather evidence of legal wrongdoing; if they have a problem with that, then they’re a hypocrite. That’s the whole thing about the 1A.

I find it unlikely, on the face of it. You can’t very well issue a restraining order protecting an entire community, and you can’t even invoke such an order without a threat assessment a few orders of magnitude beyond "persistent bullying".

Monetary sanctions are also in play, you know. Possibly jail time. But I’m not arguing about the severity or effectiveness of the legal punishment. You said there is no recourse, not that the recourse is insufficient.

The US, on the contrary, appears to take quiet pride in the fact that everyone’s entitled to be a malicious douchebag, no matter how much direct harm that actually causes. And that’s just taking freedom to the point where the Paradox of Tolerance comes in and a community of civilized people are made to suffer because they are not the same sort of assholes as the stalker making their lives miserable and the law remains solidly on the side of the abuser rather than the victims.

I firmly disagree with that assessment. For one thing, where direct harm is provable, there is usually some recourse. More importantly, we prefer to have the consequences be social rather than legal outside of certain bounds. That I agree people should have the legal right to be a douchebag doesn’t mean I think they should be able to be a douchebag without consequences.

Again: legal =/= moral or consequence-free, nor should it.

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