Starting with Mitt Romney’s ham-fisted and ill-timed public consternation over the Egyptian embassy’s paying short shrift to “American values,” the free speech question has been discussed pretty much everywhere, as it should be, given these facts. I consider myself a free speech absolutist and ultimately believe that the film is deserving of first amendment protection. The film.

But I also think that in promoting the film, the filmmaker–Nakoula Basseley Nakoula, and not Sam Bacile as he’d originally claimed–made statements that fall outside the first amendment and may be criminally actionable if it can be found that those statements furthered an intent to provoke lawless action, and that such lawless action was likely and imminent as a result of the speech (See Brandenburg v Ohio, 395 US 444 (1969)).

Intent, Likelihood, and Imminence.

Brandenburg’s requirement that violent provocation meet an “imminence” prong would seem to guarantee any film first amendment protection. Films, after all, take time to produce–imminent lawless action thus seems intrinsically impossible. Unless, perhaps, the film was designed in such a way that it would likely provoke violence at its mere showing–the film as time-bomb, with a payload of subliminal messages to cause ordinary viewers to spontaneously engage in knife fights. The direct cinematic equivalent of yelling FIRE! in a crowded theater, an analogy aided by its actually being a film. Obviously that’s not what happened here, and if this scenario was even possible it would have already occurred a few years back at the premiere of The Love Guru.

But what did happen here? And did what happen exceed first amendment protection?

Even the White House, which would stand to gain diplomatically if it had publicly asked YouTube to pull the trailer, declined to do so, instead asking YouTube to review whether the film comported with its Terms of Service (it did, and the video remains available). While this would appear to settle the first amendment question with respect to the film/trailer, it doesn’t fully put to rest the question of Nakoula’s free speech protection, especially after you drill down into the facts.

Just as the video had been gaining traction in the middle east and helped spur minor protests, helped along by the filmmakers’ (or presumably Nakoula’s) translating the trailer into Arabic,  Nakoula was interviewed by the Associated Press and the Wall Street Journal as “Sam Bacile,” [and as PBS points out, shame on AP & WSJ for buying it, perpetuating it, and failing to fully own up to their role in it] which was the account name under which the video was uploaded to YouTube.

Nakoula, as “Bacile,” made two false statements: (1) that he, “Bacile,” was Jewish (Nakoula is a Coptic Christian), and (2) that the film had been principally financed by “100 Jewish donors.” It can be argued that these lies were intended to breathe air into the fire that had only just started. Whether these lies actually stoked the fire is a separate question, but not relevant to the question of Nakoula’s intent. In any case, Brandenburg’s foreseeability prong is satisfied because the presence of some connection between the speech and the resulting violence seems obvious here.

Steve Klein, a consultant to the film and himself a Coptic Christian, bolstered the notion that Nakoula’s intent was to provoke violence. After the protests had already resulted in at least one death, Klein stated that “We went into this knowing this was probably going to happen.”

Together, Klein’s concession and Nakoula’s lies, all which occurred just as protests against the film were percolating, diminish Brandenburg’s applicability because those statements occurred separate from the film, simultaneous with the protests morphing into violence.

The film/trailer itself is also indicative of Nakoula’s intent. As the film’s actors and crew have noted, the dialogue which would be most likely to offend Muslims is not uttered by the actors on screen but was rather dubbed in afterward.

“The original actors said one word, and then the producer and editing team (whom I don’t know) dubbed,” [an unidentified crew member] wrote. “It’s unmistakable that most dubbed portions are a different voice than the original actor.“

Now we don’t want judges answering the question What is Art? any more than we want them defining religion. So the fact that the film has scant artistic integrity, undermined further by the sloppy overdubbing, is of no matter with respect to the film’s speech protection. But it does speak to Nakoula’s intent, as he evidently saw the film production itself as a ruse, and a vehicle to deliver a message he seems to have intentionally omitted in discussions with the film’s crew and actors.

Those actors, and to a lesser extent the crew, surely would not have consented to work on a film if they had known beforehand that its producer intended to use the film–and necessarily, their names and likenesses–to provoke violence in the middle east. This opens the door to possible tort actions against Nakoula by the actors and crew. If anything should happen to them, free speech won’t get Nakoula too far as a defense.

Nakoula would likely respond that any dishonesty on his part is explained by his need for anonymity–that he was protecting his own safety. Anonymous speech is still protected speech after all. But it doesn’t explain how Nakoula’s need for anonymity necessitated putting his actors and crew in harm’s way, nor does it explain why he needed to blame The Jews for the film’s creation, given how those lies would most likely be inferred in middle east.

I’ll finish by disclaiming the idea that my criticism of Nakoula is equivalent to a defense or tacit endorsement of those rioting protesters, or somehow a denial that radical Islamic fundamentalism is a problem. Indeed it is, and the answer to this or any future problem won’t and can’t involve the curtailment of our own free speech rights. And unlike those who want to reduce this controversy to its simplest, falsely-equivalent narrative, I don’t think such as a reasonable fear at present.

Taibbi points out that the problem is less the business than the tax code incentivizing the business into a can’t-miss model by granting huge interest deduction breaks. Private Equity collects huge whether the companies it takes over live or die, so why would a firm like Bain even care if the business lived or died so long as Bain collected? A: They didn’t and they don’t. This is what the wide-open free market about which the Right has been evangelizing for years looks like–and look close because not only is nothing trickling down, debt is piling up. Consequently, what social good does Bain et al serve, and why should this sort of experience ever be considered relevant business experience vis a vis running a country?

…

Michelle Goldberg voices something I’ve thought of years–Republicans have forever ridiculed lefty actors for nosing into politics but unabashedly trot out any celebrity willing to shill for them. And while Victoria Jackson and Jon Voigt are bona fide crazy and D & C List (respectively), Clint Eastwood is an American icon. Who pissed all over his legacy last night by losing an argument with a chair. So much for the RNC’s plan to humanize Mitt Romney, who wound up having to follow Clint’s surrealistic turn, which is the only thing anyone’s talking about today.

…

Sally Kohn was merely one of many people who called out Paul Ryan’s speechfor all the lies it contained, but hers was newsworthy because hers appeared on the Fox News site. Kohn is a semi-regular Fox News contributor and unlike strawman/punching bag Alan Colmes, can actually bring it.

…

I’m not a fan of Ron Paul but there wasn’t enough attention paid to the fact that on day one of the convention the RNC changed its rules and ignored the outcome of a vote that would’ve brought a result it didn’t want, specifically to ice Paul and his supporters out of the convention. And people call Ron Paul paranoid. Tch.

…

My cousin Jon pointed me to this excellent summarizing of the problems with our broken patent law system, which problems led to Apple’s ridiculous $1b jury victory over Samsung. There’s also this article suggesting that the jury goofed heavily, perhaps heavily enough to jeopardize that $1b award. There are good reasons juries generally don’t render verdicts in patent cases, and it’s basically the same reason you wouldn’t trust a jury to, say, perform surgery or reassemble an automobile from memory.

Birther Rebirth. I’ve been loosely following [on Fogbow] a developing situation in a Georgia state court, where Orly Taitz, who is equal parts incompetent and persistent, appears to have broken through the ties that conspire to prevent her myriad lawsuits challenging Obama’s citizenship from making their way through the courts. This particular suit challenges Obama’s name appearing on the 2012 Georgia ballot. An administrative law judge issued a subpoena for Obama to appear tomorrow morning, at Taitz’s request, and denied a motion by Obama’s attorney to quash it. Obama’s attorney wrote to the [politically suicidal] Georgia Sec’y of State to suggest the entire circus be shut down, but the Sec’y just refused. Game on!

Tennessee Is Also Crazy. State legislators have proposed that the public school textbooks adopt a criteria by which “No portrayal of minority experience in the history which actually occurred shall obscure the experience or contributions of the Founding Fathers, or the majority of citizens, including those who reached positions of leadership.” In other words, the Constitution’s authors can’t be superheroes if they also slaves, because such a powerful hypocrisy might dawn on our children.

Tinkering. A seriously in-depth look at the hidden clues and meanings in the masterfully done Tinker Tailor Soldier Spy.

Finally, Community Star Wars. Hundreds of “directors” filmed Star Wars in fifteen-second segments, which was then sewn together to match the full-length feature:

A month earlier I had reluctantly willed myself from bed at a similarly ungodly hour and trudged down to Zuccotti Park (a little over a mile south from my apartment in the West Village) to witness—to legally observe—the planned eviction of the Occupy Wall Street protesters, announced for 6:00 am, October 14. I arrived a half hour early. The massive police presence I expected was nowhere in sight. If something was going to happen at 6:00 am, it would have to step on the gas because the fifty or so police sprinkled randomly throughout the park were ill-equipped to dislodge hundreds of civilly disobedient protesters. And those police didn’t seem to be on edge.

But also lined up Cedar Street, the park’s southern boundary, were at least eight media trucks. Inside the park media weren’t hard to miss either; it was still dim enough at that hour that interviewees faced both cameras and harsh lighting. An AP reporter struggled to establish a connection between her phone and laptop, which was sitting on a garbage can, while ten feet away a handful of protesters patiently waited in line to stand on a masking-taped X, and speechify into a livestreaming laptop suspended at eye-level.

I found out that the eviction had been canceled by overhearing the AP reporter on her phone. Judging from the approving roar at the east end of the park seconds later, the General Assembly must have relayed the good news via human mic only seconds later.

I contemplated going home, being likewise reprieved, but recognized some people and went over to discuss the about-face. We all speculated what was next; there were rumors that the eviction would happen later that day. We next speculated as to why it was called off—I suggested that they failed to calculate the presence of the media, who would collectively broadcast all day Friday hundreds of civil disobedience arrests, some which surely would be messy. I suggested they’d evict sometime in the wee hours over the weekend, without advance warning, when the media would be nowhere in sight.

ONE MONTH LATER, not that weekend, my premonition became reality. I reread the text message and then consulted Twitter, debating whether to go downtown. Could I even get there? As Twitter relayed the situation on the ground, the genius of police commissioner Ray Kelly became (again) apparent. Downtown was inaccessible by subway, the inbound Brooklyn Bridge was closed (I think it regularly is these days though), and most importantly, a moat of inaccessibility was created effectively isolating Zuccotti Park—rendering it near impossible to get there. There was also a rumor that the NYPD prohibited news helicopters from covering the eviction from above. I traveled light; shorts, sneakers, hooded sweatshirt, and camera. I’d regret not grabbing my sunglasses later—who leaves the apartment with sunglasses at 2 am?

I walked down Greenwich instead of the West Side Highway, trying get there—wherever there was going to be—as soon as I could. At Murray Street I saw a convoy of eight garbage trucks cross West Broadway, undoubtedly on their way to Zuccotti Park. Church and Cortlandt was the end of the line, evidently—three cops stood behind metal barricades. I asked whether I could go down, showing my legal observer credentials. No. So you’re not permitting press or legal observers down there? No. What’s your name? Sergeant Kelly. Which wasn’t true, I’d seen his badge already. The three cops chuckled to themselves as I walked away, over Cortlandt to the corner of Broadway, where I would spend the next few hours.

Others had gathered at Cortlandt and Broadway because it was as near as you could get to Zuccotti Park, from the north at least. Most were protesters who’d been forced from the park, the ones who hadn’t affixed themselves to trees with kryptonite locks around their necks. Others were gawkers and sympathizers who’d been somehow woken, kind of like me, only without the fluorescent green hat the NLG provides to us. And of course, on other side of the barricades stood at least one riot-gear-clad cop for every remaining protester; in numerous scenarios I’ve witnessed a similar 1 to 1 protester/police ratio, which of course is more source of than salve to the problem.

I contemplated circumnavigating the barricaded moat to approach from the south, perhaps, or east, but nixed the idea, figuring that a perimeter is a perimeter and if Ray Kelly was going so far to keep news copters from hovering over, I wasn’t going to get any closer than where I already stood. No one was going to bear witness to this eviction except the police executing it. Besides, if police/protester interaction was going to happen, it was going to happen here, and I was the only legal observer present, so far as I could tell, at that point. I did run into a few over the next few hours, though.

There were some minor flare-ups there on the corner, some resulting in arrests. Some people were pissed and vocal, but there wasn’t much cohesion. Mic checks prompted everyone to go here or there, but not much came of it. The most interesting moment occurred around 5:30 am, as the skies slowly lightened and commuters began to trickle in: a man wearing an expensive gray suit purposefully strode past me on Broadway, and as he approached the corner to go right, instead of walking around a few seated near the corner, viciously kicked a young woman in her side, then walked fast down Cortlandt. A number of people angrily confronted this asshole engaging in his own private counter-protest, before police settled things down and, to their credit, arrested him.

There was also a tense standoff with twenty-plus riot police who’d blocked the entire width of sidewalk on Broadway between Cortlandt and Fulton, effectively trapping myself and others between its line and barricades behind us. It was an odd and intimidating and thankfully only lasted perhaps ten minutes before they filed into the street permitting us the freedom to walk back to the corner of Cortlandt.

Gradually the police outnumbered the dissipating crowd, so I walked north (not far) to Foley Square, which Twitter suggested had become the de facto rendezvous point. It was almost fully light by the time I arrived and there was a sizeable number there. There were also a number of other NLG observers, some whom I knew, so I brought myself, and them, up to speed, comparing notes of all that had happened. It was here I found out that the NLG was trying to obtain an injunction to enable the protesters’ return to Zuccotti Park.

Another strong rumor was that at 7:00 am there was a planned rendezvous at Sixth Avenue and Canal Street, at an odd, triangular stretch of empty lot space owned by Trinity Church, whose venerable, beautiful church bookends Wall Street’s west end. The church also owns a ton of Manhattan property, much of it downtown. I suspect that the protesters thought that this lot—which I only found out that day was called Duarte Square—was similar to Zuccottti Park for its private/public character. Apparently no one bothered to ask Trinity what it thought about this idea because hours after the protesters marched there (I marched with, arriving at), I heard it reported that Trinity wanted them all gone.

Before Trinity could throw the anti-moneychangers out from their empty lot of a temple, though, another interesting thing happened: the injunction was granted, we found out. Copies of it were distributed to NLG observers, and news of it was human mic’d to the now sizable crowd—besides those who marched from Foley Square, others had marched from other locations. The triumphant but wary protesters made a decision to split up; some would stay there and a smaller contingent would march back to Zuccotti Park. It was decided that I and a few other NLG observers would march back to Zuccotti, about a mile away, with this group.

I was pretty shot by this point, but also curious to see what would happen upon the protesters’ return to Zuccotti, so I walked in the front of the pack. An older officer with a bullhorn—a short, stout, burr-headed Ralph Steadman caricature—angrily screamed at the marchers to stay on the sidewalk, which has become standard operating procedure for all marches. I tried to engage him but he wasn’t having it. Did the NYPD plan on honoring the injunction when we all got to the Park? He responded with an even angrier look (to the sky, not me, eye contact is studiously avoided by most police) and went back on script: Get on the sidewalk!

A protester asked whether I would address the legal issues with the other protesters upon our arrival—there as to be a hearing at 11:30 and everything could change depending on that hearing’s outcome. I said sure. A few blocks later, walking south on Church, past Century 21, we could see Zuccotti ahead of us. There was plenty of media tagging along at the front but they scrambled ahead to anchor themselves to get a shot of the protesters reentering the park. It was only when we were feet away from the media gaggle that I realized that behind them were barricades. Simonetti, the bullhorn cop, directed us left into a narrow barricaded corridor running up Pine Street, Zuccotti’s northern border. A barricaded dead end. The kids call this “kettling.”

I walked left and looked for police captains, or higher. Spotting a few (they were all inside Zuccotti Park), I made my case: “You do know you’re violating an injunction, right?” Stone-faced silence. I made the argument to some media, pointing out the operative language of the injunction, which couldn’t have been clearer. Behind me the protesters chanted “WE. HAVE. A COURT. ORDER.” I spoke to other police—didn’t they realize denying the protesters reentry amounted to contempt?

Some police responded that there was a hearing at 11:30 and that the injunction was meaningless until that was decided, which of course was exactly wrong—the injunction was explicitly drafted to return the protesters to the pre-eviction status quo, and it was signed by a Justice of the Supreme Court of New York State. There’s a plausible argument that the injunction should have held off allowing protesters to return to the park pending the hearing’s outcome, but it didn’t do that: it allowed them to return—with tents even—and a hearing would then decide whether they would be allowed to continue to stay.

I eventually gave up trying to convince everyone and became more concerned for my safety, as it was becoming clear that the group that had marched down was larger than this barricade corridor reserved for it. I was also tired—it was 10 am and I’d been up and out walking all over downtown for eight hours. But I was also disgusted. The city, or rather Bloomberg, had obviously made the imperious decision that a judicial order didn’t apply to him.

A core running theme of the Occupy protests is that politics is rigged to favor the money. There have been so many instances where this dynamic has played out, where the symbolic overtones are no longer parable but reality. The double-barricaded Wall Street Bull, for example, is guarded by two officers at all times. Police arrest bank customers audacious enough to cancel their accounts. Now it was the police who occupied Zuccotti Park, safely barricaded in after their methodic, disgracefully secret, eviction, despite that I held in my hand a lawful court order requiring precisely the opposite. The protesters played by the rules and still lost even when the scoreboard supposedly registered a win.

I stuck around for another hour, pled my case to more deaf police ears, and finally gave up and went home. I would find out later that afternoon that the city argued to remove the judge who had signed the injunction—she had been an ACLU attorney prior to becoming a judge, as if that should have even mattered. Until U.S. Supreme Court justices begin recusing themselves for real reasons, such as financial self-interest or prior involvement in the instant case, it’s difficult to take seriously more tenuous connections, such as supposed ideological biases, especially when the only ideological bases seen as disqualifying are on the left. Ex-Federalist Society member judges aren’t asked to recuse themselves from tort cases.

Justice Billings was replaced (I’m still unclear whether she recused herself or whether an administrative judge/panel removed her) by Justice Michael Stallman, who heard both sides of the freedom of assembly versus reasonable time/manner/place restrictions and ruled, without offering a reasoned basis, for the city. The city’s blatant contempt of Billings’ order went unmentioned in the written decision and was barely discussed in the press. The only lawlessness that can’t be excused, as any Occupy protester will tell you, is the lawlessness committed by the poor. For everyone else, it’s Calvinball over and over and over again.

[The above photos from the eviction night are included in my larger album of #ows photos here]

The defendant, Hosanna-Tabor Evangelical Lutheran Church and School, was the employer of 4th grade teacher and plaintiff Cheyrl Perich from Minnesota, who fell ill with a mystery ailment in June 2004, and had to be hospitalized for several months. Six months later doctors finally diagnosed Perich with narcolepsy and advised her that with proper medication she’d be able to return to work in 2-3 months. The principal and the school board, however, became concerned about Perich’s ability to fully function and requested that she agree to a “peaceful release” whereby the school would cover Perich’s medical insurance premiums through December 2005 (and effectively waive disability). Perich rejected the release proposal and attempted to return to work (she had obtained a work release from her doctor), and was instead fired, purportedly due to her “insubordination” at the board meeting where she rejected the school’s proposal, and due to her threat to sue (which, yes, appears to be something of a tautology).

Perich filed a complaint via the EEOC against Hosanna-Tabor for wrongful termination and under the Americans with Disability Act (“ADA”) and retaliation. She ultimately joined in the complaint herself, becoming a co-plaintiff with the EEOC. After both sides filed for summary judgment, the district court found for Hosanna-Tabor, ruling that the ministerial exception precluded the court from inquiring into her claims and accordingly dismissed the claim for lack of subject matter jurisdiction. After moving to reconsider (which motion was denied), Perich and the EEOC appealed to the 11th Circuit.

In all ministerial exception cases the issue ultimately boils down to a consideration of the relationship between the employer religious entity and the employer—basically: Is the employee a “minister”? If the answer is “yes,” the employer is exempt from virtually all labor law provisions. The rationale for the ministerial exception is that the constitution prohibits court inquiry into the hiring and firing decisions of religion, lest the courts become impermissibly entangled in religious affairs. Similarly, to penalize a religious institution based on hiring and firing decisions grounded in religious criteria violates that religious entity’s free exercise rights.

In deciding whether an employee is a “minister” or “ministerial employee,” the courts have taken a myriad of approaches, most under the guise of what’s been called the “primary duties” test. At the most restrictive end of the test spectrum is the 6th Circuit’s approach in Hosanna-Tabor. Perich did teach some religious classes but she primarily administered a secular curriculum—the Court at one point literally counts the hours in a typical day for Perich, noting that more than six of her seven hour day was spent teaching secular subjects.  Moreover, both the majority and concurrence found persuasive the fact that some Hosanna-Tabor teachers were not even Lutheran yet still gave religious instruction—how can non-adherents possibly be ministers? Additionally, it didn’t hurt that Hosanna-Tabor’s personnel manual includes EEOC policy within, and that the Governing Manual for Lutheran Schools apparently contemplates that teachers are protected by labor laws.

At the opposite end of the primary duties spectrum is a highly deferential test that asks whether some of the employee’s duties are religious in nature and whether the employer based its hiring decision on religious criteria. The 5th and 9th Circuits’ adopt this approach, as typified by the Alcazar v. Corporation of the Catholic Archbishop of Seattle case, upon which basis the Headleys’ cases were dismissed. With Alcazar, the question of duties is mostly subsumed by flipping it around and looking not at what the employee does, but the intent of the employer—why the employee was hired. By eschewing objectivity, Alcazar (decided en banc) hands to religious entities a highly valuable get-out-of-labor-law-free card, by including their hiring decisions—which courts cannot question lest they become entangled in religious affairs—as a part of the test. “Yes, we hired that janitor to deliver the Word of God—why should the state have any say in the matter?” Perhaps this is extreme (a janitor likely performs no religious functions much less some), but it’s a helpful example to point out the tautological nature of the “religious criteria” prong.

The ridiculousness of Alcazar was made apparent in the Headleys suits, which were dismissed when the court analyzed their situations as follows:

 She worked for Defendants, which both are institutions within the Church. She also was able to hold the positions she had with Defendants based largely on religious criteria, namely her commitment to 1,000,000,000 years of service to Scientology and the lifestyle constraints that come with being a member of the Sea Org. See id. 2010 WL 917200, (deciding this factor was met where plaintiff was in a job available only to seminarians of the Catholic Church). Finally, as part of her duties, she performed various religious duties and responsibilities, most notably “auditing” and “cramming.”

In other words, Claire Headley was a minister because Scientology said so. The court declined to entertain what Claire or Marc Headley actually did in terms of work while in the Sea Org, 99% of which could have been performed by non-Scientologists without a hitch, because it had already found that “some” of their duties were Scientological in nature.

If the Supreme Court affirms Hosanna-Tabor (or even if it merely concurs with the result and creates a new test based on the facts (perhaps adopting Judge Helen White’s concurrence, which appears to have kept the “primary” part of the primary duties test, but also looked to whether the employee’s hiring relied upon a religious criteria) it may be necessary for the courts to reexamine the Headleys’ cases based on whatever standard the Supreme Court sets forth, and the result could be quite favorable.

If the Supreme Court were to simply affirm without comment (for the sake of argument–this won’t happen), the question in the Headleys’ cases would become how much time they spent performing secular duties and how much time they spent performing religious duties. And even if the court ultimately agreed with Scientology that every minute of a Sea Org member’s waking day is spent performing religious duties as a member of a religious order, the factual inquiry would nevertheless be fascinating… for critics anyway–Scientology would certainly be terrified to have its treatment of Sea Org members subject to the court’s scrutiny.

Beyond the Scientology implications I’ve mentioned, this case has some pretty heavy real world implications as well, as can be inferred from the huge number of amicus briefs already filed (20 in support of Hosanna-Tabor, 8 in support of the EEOC/Perich). Scotusblog entry for Hosanna-Tabor case here. There are tens of thousands of teachers teaching at parochial and sectarian schools who will be directly affected by the how the Supreme Court winds up ruling.; and my guess is that the vast majority of those teachers are under the perhaps mistaken impression that they’re protected by labor law.

Also worth noting is this 2008 Student Note in appearing in the Harvard Law Review arguing for the more deferential “primary duties” standard–though I disagree with the Note’s thesis, it’s an excellent walk through the most prominent case law (as of 2008 at least, unfortunately prior to Alcazar).

Finally, journalist Jonny Jacobson wrote an excellent post covering similar territory as this one but with a different focus. His post prompted mine, so I just wanted to give it a shout-out.

• Cops overdoing it. SWAT team breaks down the door of and arrests the estranged husband of a woman who had defaulted on her student loans. Scary for personal reasons. via Gawker.
• Michael Tomasky’s persuasive argument that democrats should spend more time vilifying Ayn Rand.  He makes a great point where he reduces the dem/repub conundrum as follows:

Republican attacks against Democrats are typically philosophical in basis, while Democratic attacks are usually policy-specific. [...] The difference exists for a simple reason: Republican programs are unpopular, but their bumper-sticker philosophy is popular (less government, stronger defense), while Democratic philosophy is viewed negatively but people strongly support specific government programs. This dichotomy makes for Republican attacks that are in general far more emotionally compelling. They tell a story and provide a context.

I think the Dems should resurrect all those “Trickle Down” mentions in support of laissez-faire policies from the 80s and remind everyone that not much actually trickled down. And now that Ross Perot’s “great sucking sound” of job disappearance has actually come to pass, the theory is even less sustainable–the trickle-down–what little there is of it–beneficiaries to corporate welfare are foreign workers.

• The California State Fire Marshal, in 1941, warns Americans of fire hazards including housewives washing clothes in gasoline:

h/t my ultra-fascinating college R.A. Bunch.

Yet, the vast majority of articles and opinion pieces are keyed only to the fear and outrage that this decision somehow spells apocalyptic doom for homeschooling.

Take T. Keung Hui of the Raleigh News & Observer, whose allegedly straight news report on the decision begins:

Home-school groups and conservatives across the country are infuriated by a Wake County judge’s declaration that he will make a North Raleigh mother stop teaching her children at home and send them to public schools.

L.A. Williams of the
Christian Action League, similarly leads with:

Home Education Week in North Carolina kicks off Sunday (March 22) amid a firestorm of controversy surrounding a Wake County divorce ruling that will send three home schooled children into public school against their mother’s wishes.

Keung doesn’t even alert readers to the fact that the children have a father, Thomas Mills, until the 14th paragraph of the article (L.A. Williams, from whom an expectation of bias seems more natural, also first mentions the father in the 14th paragraph), despite that the father and mother requested that the court to settle their dispute as to how the children shall be educated. Yet these articles, and many others, frame this story as one where a court is arbitrarily imposing its will to destroy homeschooling, as opposed to what it is–a disagreement between parties who have to equally share decision-making power as to how the children are raised. Why should the father’s wish that the children not be homeschooled not be taken into account–or at least mentioned in one of the first few paragraphs?

If the facts led the court to conclude that homeschooling was in the best interests of the children, which it may have decided had the facts led it to such a conclusion, this story wouldn’t have made a ripple in the media pool. But the story has gained national interest, the attention mostly coming from homeschooling activists who see this decision as a threat to their way of life. In its rush to condemn the decision, however, it appears that they either have failed to grasp it, or are deliberately and disingenuously ignoring key facts.

The first ignored fact, as mentioned, is that the court was called upon by both parties to resolve a stalemate–it did not swoop down like Janet Reno on an unsuspecting Elián González and pry the children from their mother’s arms kicking and screaming to public school. The parents genuinely disputed how to best educate the children, and the court addressed the matter just as every other court in the country would have–by determining the best interests of the children, which is not necessarily the same thing as the best education for the children, although it would most often work out to be the same.

This takes me to the next ignored fact–the mother has chosen to immerse herself in a cult which, as cults almost always do, urges member to actively disconnect from their non-believer friends and families. And the children’s mother has done just that. According to Thomas, “Venessa Mills became unrecognizable as the person I had married. She withdrew emotionally from me.”

Her longtime friend–they were each other’s maids of honor–Shanna Winker-Hanson, testified that “In the last four years, since her joining the Sound Doctrine church, Venessa has pushed her loved ones away. She has become more and more distant with me.”

Venessa’s mother, father and sister even testified against their own blood relative, expressing their concern as to “Venessa’s involvement with Sound Doctrine and are particularly concerned about the affect [sic] on the children.” This obviously played a large part in the judge’s decision, yet is hardly touched upon by Venessa Mills’ many defenders.

The church to which Venessa belongs is run by Tim and Carla Williams and is located in the state of Washington–quite a ways from North Carolina. Tim and Carla have engendered no shortage of vocal detractors amongst ex-members, many of whom testified on behalf of the father. Ex-members characterized Sound Doctrine as “cult-like and manipulative” in affidavits, and claimed that it teaches members to “break” their children to establish authority, and subjects them to harsh work regimens. Perhaps most troubling were affiants who testified that Tim Williams would often speak about pre-teen children in a sexual manner; Tina Wasik testified that:

Tim Williams told me that my oldest daughter (then age 12) was the kind of girl men would take advantage of, that my middle daughter (then age 7) was the kind of girl that would sleep with any guy, and that my youngest daughter (age 4) was the kind of girl that would use her looks to seduce men.” Tina Wasick added “Timothy once told us that our daughter [..] was the type of girl who would probably end up trying to seduce a pastor.
She was 7 years old at the time!!”

Perhaps because those reporting this story have pitched it in such an unfair manner, there’s no shortage of internet outrage to go around–in fact, I’ve yet to find someone defending the decision. Here’s a sampling of the fact-free delusions I’ve come across:

This ruling is the top of a very slippery slope. If a judge can order homeschooled children into public schools for no reason besides his own “feelings,” all homeschoolers are threatened.

That’s Patrice Lewis from WorldNetDaily implying that the judge acted unilaterally, ignoring that both parties requested the court’s assistance.

Alan Keyes was also informed of the decision and, as ever, didn’t disappoint, reaching deep into his wellspring of unhinged rhetoric to warn that this “imposition of socialist tyranny will produce the enslavement of conscience,” and later analogized the decision and fate of Venessa Mills to the tyranny imposed by “American slaveholders in the nineteenth century,” who tore children away from their mothers “to be sold into slavery in some distant state.” I posted a comment on Keyes’ blog but doubt it’ll be approved–I simply asked whether anyone commenting there gave any consideration to the fact that the father also had rights. I’ll update as to how that goes. [update: comment accepted, no response yet though]

And actual politicians–as opposed to pretend ones like Keyes–also got in on the action: “I agree, this was a terrible decision. Hopefully an appeal will reverse the decision,” scolded Neal Hunt, Deputy Republican Leader of the North Carolina Senate.

Finally, two websites, both in rabid defense of Venessa Mills, have cropped up, one, HS Injustice, run by Robyn Williams, who describes herself as a friend of mother Venessa Mills, and another, Home School Liberty, appears to be the work of John Peterson, who appears to be a tireless organizer.

These sources all fail to even confront the question of the father’s rights–it’s as if the fact doesn’t exist, and Thomas Mills has no right in the world to disagree with Venessa as to how the children are schooled.

So why didn’t Thomas want the children homeschooled? Apparently he agreed in 2005 to temporarily allow Venessa to homeschool the children “during their early years,” but wished for them to return to public school later on. Thomas, and the court, agree that the Venessa is competently homeschooling the children. But the quality of the homeschooling is not at issue–the best interests of the children are issue, and the fact that the line between home schooling and Sound Doctrine is often blurred. Paragraph 39 of the order:

The Court finds as fact that part of the daily activity of the minor children includes the immersion into Sound Doctrine, through frequent communication via phone and web cam with people in Washington State. Thomas Mills expressed concern for this. He stated that he was unaware of Sound Doctrine instruction from a member in Washington State when it occurred during a time devoted to school curriculum. He stated in part that “I am concerned about this because they are directly targeting my daughter.” The Court finds this as fact.

In paragraph 42 the court points out, incredulously, that “even though Mr. Mills has a good job, no criminal record, no history of substance abuse or domestic violence, Ms. Mills has asked this Court to enter several orders, including:

• “Limiting Mr. Mills from having any overnight visits with his children;
• “Limiting Mr. Mills from seeing his children to a total of 9 hours a week;
• “Removing all decision making authority away from Mr. Mills related to education and religion;
• “To not allow Mr. Mills any regular visitation on Sundays;
• “To order that Mr. Mills not allow the children to have contact with any ex-Sound Doctrine members or anyone hostile to the organization.”

I believe the court found this list of requests telling as to Venessa Mills’ state of mind, not only because they’re so severed from reality–Tom Mills would have to be a monster to be awarded limited custody sought by Venessa–but also because each request reveals the mother’s desire to limit the children’s exposure to any external influence, and especially the father’s influence. It’s as if she’s asking for court ordered disconnection, which is a hallmark characteristic of cults–concerned family members often question and disrupt the flow a member’s money to the cult/beneficiary. One Sound Doctrine ex-member testified in an affidavit that “we were often harrassed [sic] to give money” and another that Sound Doctrine “really drives a wedge between members and their families.”

The court rightly spotted that wedge in time, and ensured that Thomas Mills would have a hand in deciding how his children will be educated. Venessa Mills decidedly wants to immerse the children in Sound Doctrine to the exclusion of any competing thoughts and externalities, which Thomas actively sought to expand. Forced to choose between two potential futures for the children, the court opted for the future that would guarantee exposure to a wider variety of thought, while it simultaneously avoided the danger of the children’s education becoming indistinguishable from Sound Indoctrination.

UPDATE: I’m glad to see that I’m not the only one to perceive this case rationally. I earlier missed that Timothy Sandefur and Little Green Footballs (of all places) both get it right also..

The unenumerated “right to privacy,” found in the due process clause of the 14th Amendment, is, of course, the underlying basis for Roe v. Wade–ask any self-described “strict constructionist” conservative, as they’ve been howling at the moon for years over this.

Thus, if Palin actually knew what she was agreeing to, she’d also know that her agreement and disagreement are entirely incompatible. Obviously I’m giving her too much credit (when Couric even reminded her that Right to Privacy is the cornerstone of Roe v. Wade). I think she simply thought that right to privacy sounded neat–who doesn’t like privacy?

The beginning of the clip below shows Biden discussing Roe v. Wade with Couric as well, except that Biden has obviously read the case.