Constitutional protection but no amendment

I listened to a couple more episodes of the series More Perfect, stories about the Supremes.

The first one was related to the Citizens United case I wrote about yesterday. The show’s staff put on a 35 minute debate about the First Amendment and did it in two parts. The first part was about the Amendment itself. I’m not sure who the main debaters are – I thought there were two debaters in each of two parts, but the episode’s webpage lists only three names. One side pushed hard on how do we shut down the Nazis? Perhaps we declare their speech to be harmful. The other side presented his view succinctly and in a way that would please my friend and debate partner: Would you want the nasty guy’s minions deciding what speech was harmful?

The second part was should Facebook, Twitter, and other social media to ban hateful speech? They aren’t government, so the Constitution doesn’t directly apply. On one side was a black man who wanted to shut down Nazi groups. His opponent raised a number of points:

* Banning objectionable content is really hard to do. Algorithms cannot distinguish between users spouting hate speech and users trying to counter hate speech. Humans taking on those jobs have to deal with users who report “objectionable” content because they want to shut down people with whom they disagree. It seems we lose as many speakers on our side as we banish from their side. And under the current systems, there is no appeal.

* If algorithms were developed to accurately shut down hate speech sites, it wouldn’t take long for government or other outsiders to say: Here’s our definition of hate speech. Use it.

* It is much better to engage with those with opposing views rather than ban them (another point my friend likes to make). An audience member added to this one. He changed some pretty conservative views because someone engaged with him through social media. The black debater responded: I’m tired of having to educate white people. Gay people are tired of having to educate straight people. Women are tired of having to educate men.

This debate didn’t discuss what I see is an important part of First Amendment discussions, though the black debater alluded to it. What do we do about speech that is downright harmful? This is speech that is so damaging or so relentless that the receiver cannot respond and whose only option is to get off social media – then call their therapist for an emergency visit.

The debate also didn’t get into fake news or into Russian meddling through social media.



The second episode, almost an hour, was about women’s rights. In the mid 1970s the Equal Rights Amendment was making the rounds of the states. But it was ratified in only 35 of needed 38 states. It failed. So perhaps there was a way to given women constitutional rights without a constitutional amendment?

Up to this point the 14th Amendment and its Equal Protection clause was understood to refer to race – and nothing else. Racial discrimination cases were examined with strict scrutiny – those who created a discriminatory law had better have a very good reason for it. But sex discrimination cases didn’t have to meet that standard. A state bans female lawyers because a courtroom is no place for a lady? Fine with us.

Before Ruth Bader Ginsberg was a Supreme Court Justice, she was the head of the ACLU Women’s Rights Project. And she was looking for the perfect case to take to the Supremes to suggest the 14th Amendment covered women.

She found it in a case from Oklahoma. Females could buy beer starting at the age of 18 but males had to wait to the age of 21. Yes, the guys were being discriminated against. But, said Ginsberg, even laws that discriminated against men was based on inaccurate stereotypes of women. Even so, the case would validate the idea that sex discrimination of any kind should receive the same scrutiny as racial discrimination.

Ginsberg made two shrewd moves. First, she had a local lawyer actually argue the case before the Supremes. She coached him on the points to make that would build the foundation for what she wanted (also: this is a gender case because if you use the word “sex” the men of the Supremes will have only one thought). He was enough of a bigot that he didn’t want to work with her, though he did incorporate her points. He was out of his depth and floundered before the justices. Ginsberg expected that.

Second, she wrangled one of her other cases to be heard directly following the beer case. For this one she did the arguing. The justices were sufficiently annoyed with the floundering lawyer that they took time out of the second case so that Ginsberg could explain what she wanted out of the first one. Yeah, an incompetent man followed by a competent woman.

And she won. She got the Supremes to establish that the “all persons” of the 14th Amendment included women.