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The First Amendment: Are You Familiar with Chaplinsky?

1. While We Looked Elsewhere…

Let’s face it: Phil’s statements and subsequent "firing" is not a crisis. And it is NOT a constitutional crisis. But, it could become both, depending upon HOW the Left manipulates this issue. But what is REALLy important is the RESPONSE of people across the country who held A&E responsible for firing Phil. In other words, people are furious with this kind of treatment for Christian, traditional and sexual values. Perhaps, they are sick of corporate America bowing to pressure groups, lobbies, and bureaucratic regulation.

But while this episode was being debated across the country, a new bill (HR 1540) was passed by BOTH Houses of the Congress:

Understand that the new term for terrorists as defined by BOTH the Senate and House in the NDAA – the National Defense Authorization Act (NDAA is a bill that normally funds the military) – now allows for the INDEFINITE MILITARY DETENTION of ANY PERSON suspected of an "affiliation" (What is that?!) with "terrorism" AS DEFINED BY THE FOLLOWING LANGUAGE (in their words):

– "people are terrorists who are suspicious of centralized government"
– people who are "reverent of individual liberty"
– people who are "anti-federalists"

2. So What about Phil and A&E: Is This a Concern? (Rewrite: Have you heard of Chaplinsky? Now…be concerned!)

We are in an age where there is an ongoing "Legal Revolution". It is no secret that the Supreme Court has been whittling away at the Bill of Rights for some time now. Let’s understand what that means: it means that, to derail the genius of our Bill of Rights, there must be "legal engineering" that turns legal language of the document designed to protect us into one that is destructive of liberty.

The right to privacy – used to justify abortion – is a classic case of such legal engineering. Undoing the REMAINING historic application of that "right to privacy", i.e., the right to be protected from intrusive acts of others (such as the state and other parties, public or private), is further "whittled" by recent Congressional legislation "protecting us" from terrorist attack.

As things stand with the Supreme Court, this encroachment is yet to be more fully tested but it is assumed that it will withstand challenges, if they are brought to the Court. This still leaves the right to privacy WITH RESPECT TO ABORTION intact, but legally compromises such privacy protections as Habeus Corpus, Probable cause, and Fifth Amendment testimony. Add to that such abominations as the restrictive use of "Summary Judgment" proceedings giving judges discretionary authority to deny you a fair trial and you find that the "whittlings" amount to denials of Constitutional protections in the name of "constitutional protection". Roe v. Wade, for example, stands as a monument to the Bible’s apt description of such legal chicanery: "They frame mischief with a law." (Psalm ).

3. First Amendment? Have You Heard of Chaplinsky?

All of which brings us to the First Amendment issue, Phil Robertson, homosexual rights and A&E’s recent actions. In an outstanding article entitled "Why Firing Phil Robertson Is Not a Censorship or First Amendment Issue", Gary Demar raised a number of issues which led him to conclude that this is not a First Amendment issue. As much as I enjoyed the article (and I recommend everyone read it- rather "learn" it), I worry that perhaps a point not raised therein may be what we are facing.

Here are three paragraphs from that article I believe we need to understand BEFORE I state my concern:

"Let me tell you where First Amendment rights are being infringed. Several courts have ruled against people who refuse to offer services to same-sex couples who want to marry. It’s happened to bakeries and photographers.

If A&E is within its rights to fire someone for what he says about homosexual behavior, then why is it wrong for a business owner to refuse service to someone who holds contrary beliefs about homosexuality?

A&E shouldn’t be forced by the government to rehire Phil Robertson, and the government should not force a bakery to bake a cake for a couple that admits to engaging in same-sex sex. They’re both businesses, and the government has no business getting involved in their businesses unless a business crime like fraud or breach of contract has taken place."

This is certainly the kind of understanding I believe our forefathers intended. I certainly believe with Gary that the actions taken by A&E and the statements made by Phil Robertson would not fall under the scope of First Amendment "violations"… AS ORIGINALLY INTENDED by our forefathers.

Phil Robertson’s outspoken position concerning homosexuality got him "canned" by A&E. Many are deliberating the issue, some concluding this is a First Amendment violation of his religious convictions.

Unfortunately, as excellent as each point is in Gary’s article I wonder whether the ongoing Revolution of the United States Supreme Court ought really to be our real concern here. The article – point by point was superb. But it’s an old maxim that says "What is true of the parts is not necessarily true of the whole." In other words, the many points were well expressed…and true, as far as they go. But, perhaps, not all the considerations surrounding the First Amendment and Phil Robertson’s sanctioned statements, have been covered sufficiently to exclude this event from the scope of First Amendment litigation.

4. Chaplinsky…

The problem with the First Amendment, as it is currently being applied by the Supreme Court, is that the Court has reduced a once powerful set of Rights and Protections into a complexity of contradictory "understandings". A landmark First Amendment Supreme Court decision, Chaplinsky vs. New Hampshire, is one of several decisions that places great pressure on historically held protections. The Court’s position made it clear that a commitment to rights is inseparably linked to our civic responsibility to guard those rights for all others.

The whole hate speech movement has precedents emanating from, among others, this Case. Thus actions that are interpreted as "violent", abusive", or "misrepresentative" of a group, person or entity, grow "legal" arms and legs as a GRANT of GOVERNMENT where none was supposed to exist (by our forefathers).

That is the reason groups opposed to Phil’s statements are using language to CREATE an atmosphere in which Phil’s positions are deemed as misrepresentative, hateful or have the capacity to incite abuse. The Chaplinsky precedent needs any kind of occurrence CLAIMED as abusive, hateful, or misrepresentative to bring a test case up into the court system. Once there, it takes on a life of its own.

In the controversy surrounding Phil Robertson’s public statements concerning the the sin of homosexuality, it is apparent that entities such as A & E  take a position that aligns with the precedent established by the Supreme Court for ALL PERSONS (corporations are legal PERSONS).

This case is not about A&E’s concerns with Christianity and Phil.

Why not? A&E knew what they were getting into when they first aired Duck Dynasty. They knew they were dealing with a dedicated family of Christians who were articulate and funny – down-to-earth people. A&E knew before they got into this show that the members of the Duck Dynasty cast were not timid. In show business that’s what you must be to succeed. Therefore, "canning" Phil Robertson for his statements comes as a surprise despite A&E’s less than friendly comments about prayer (disturbing their producers) and other issues (the ridiculous "bleeping" of different statements on air, for example.). A&E knows that a profitable show is being lost.

Remember, the ongoing Revolution being engineered through our Supreme Court is one that whittles away rights. It takes away our version of the proverbial pie one slice at a time so as not to arouse suspicion much less opposition. But, what if the real reason for all this is a "need" for the powers with an agenda for a case that rounds out Chaplinsky "more explicitly"?

Restrictions upon "free exercise" of speech must be more explicit. It was for lack thereof, that Supreme Court took the state of New Hampshire to task for being too vague concerning statements made in public, stating the following:

“English language has a number of words and expressions which by general consent [are] ‘fighting words’ when said without a disarming
smile. … Such words, as ordinary men know, are likely to cause a fight."

Did you "get that"? If a court feels you are using language that could be construed as "fighting words" then you have lost First Amendment protections and your words could be construed as inflammatory and other than legally permissible.

According to the Court, the New Hampshire statute in question “did no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker — including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.” Jurisdictions may write statutes to punish verbal acts if the statutes are “carefully drawn so as not unduly to impair liberty of expression.”

Did you get that? Local jurisdictions – local governments, cities, state governments – COULD write statutes to punish verbal acts construed as "fighting words". So why haven’t they done so with, say, churches and Christians who condemn homosexuality? However, due to public pressure, the Supreme Court has limited the effects of Chaplinsky and other First Amendment confusions from affecting more of the private sector and especially religious expression…so far.

Allegedly, according to cited "experts" such as the oft-quoted "Southern Poverty Law Center" certain Christian groups have been singled out as hate groups, including "…the American Family Association, the Family Research Council, Abiding Truth Ministries, American Vision, the Chalcedon Foundation, the Dove World Outreach Center, the Traditional Values Coalition, and the Westboro Baptist Church." [See the posted article: http://bit.ly/195Lpsg] Though I am not personally familiar with all of these entities, it is "interesting" that Christianity is singled out increasingly as if Christians were the real storm center for "hate expression". 

In the FBI Bulletin cited below (where the model for hate groups and violent ideologies was introduced), the emphasis of that Study was upon gangs and tattooed subculture types including "Neo-Nazi" gang members who often have already established criminal records. Groups often naively – or those with an "axe to grind" –  cite this model and almost exclusively ignore the subculture groups who are its focus.

5. Now, It’s Phil’s Turn.

However, it is NOT just about being put on a watch list of some kind. The FBI has a model for hate groups, cited repeatedly in hate abuse literature. According to the now widely quoted 2003 FBI Law Enforcement bulletin, a hate group, if not restricted legally, matures in seven successive stages.[See "2003 FBI Law Enforcement Bulletin".]

According to this Model, now in use all throughout the country, hate groups vocalize their beliefs in the first four stages of hate-development. But, in the last three stages, they act upon those beliefs and begin targeting people and groups. The bulletin postulates a transition period that exists between verbal violence and acts that single out targets of hatred. Thus, hate speech is seen
as a prerequisite of hate crimes, and as a necessary pre-condition for future acts of violence. [http://bit.ly/195Lpsg]

You know as well as I do the Revolution is ongoing. The pressure from powerful people, media and government is unceasingly anti-Christian. For 4 decades I have watched Christians and Christian movements get "tarred and feathered" as domestic terrorists, hatemongers, bigots, and a host of other pejorative accusations. More tragically, many of those who have been "tarred and feathered" publicly have also been sanctioned JUDICIALLY. Thus, INCREASINGLY, authorities have tragically damaged home schooled families, Christian schools, Christian publishing houses, conservative interests, Christian immigrants, Christian and non-Christian businesses, and traditional Christian family values.

The question is this: Can the Left bring legal issues to the test at the Supreme Court level which would incite new restrictions upon Christians and, especially, churches? Remember, we already have several cases on their way to the Supreme Court concerning gay-rights. But to round out the precedents, the particular pressure point is the churches… and biblical expression concerning sin.

There’s no other way around the fact that if the Left wants to muzzle the pulpits, it must CREATE a First Amendment case. That involves victimizing one Christian after another until finally a pliable Supreme Court – stacked currently with arguably some of the most anti-constitutional thinkers in its history – will bend to political expediency and engage in further "judicial legislating".

The fact is, though groups and entities are airing their "concerns" to protect the rights of other groups as per Chaplinsky, WE, as Christians have lost some protections to air publicly opinions directly in support of biblical Truth. This departure from historically judicial norms is especially dangerous when such truths disagree with social mores and are thus perceived as "condemning" the behavior of others.

In the controversy surrounding Phil Robertson’s public statements concerning the sin of homosexuality, it is apparent that entities such as A & E  take a position that aligns with the precedent established by the Supreme Court for ALL entities, especially government or government creations (all corporations are government creations by code) in Chaplinsky v. New Hampshire.

6. YOUR Responsibility to "Guard the Rights of Others…"

This brings us back to Phil’s statements. A&E appears to be acting on the basis that its own responsibility to "guard the rights of others" under the Supreme Court’s current understanding of the First Amendment, mandates it take Phil Robertson to task for statements made in an interview with GQ…an ENTIRELY privately contracted event, having nothing to do with A&E directly.

Gary was right. This is not a First Amendment right issue in any historic sense since private businesses may hire and fire for many things.  However, there is little if anything that is historically sound in this Supreme Court. We have a Chief Justice calling Obamacare a "tax" despite the fact our Constitution disallows anything to be called a tax if it did not first originate in the House of Representatives (not the Senate where Obamacare was first passed, a point about which even Obamacare Federal attorneys were deeply concerned before the Court).

Phil’s right to speak in a privately contracted setting can be interpreted as a violation under Chaplinsky. So far, the landmark case has not been tested on this point. But… will THIS MOST REVOLUTIONARY COURT… find enough SOCIAL HATE to construe Phil’s "free speech" – or someone like Phil – as a menace to the public peace? Of course, such a case needs a Complainant. Enter A&E… or Phil Robertson in defense of his rights … or an advocacy group(s).

…And everyone is lining up for a fight… including the NDAA.

– Submitted, Wayne C. Sedlak

Phil Robertson… Bursting a Bubble: The Illusion of Popular Support

Phil Robertson:  A Bold Stand

Phil Robertson of Duck Dynasty has taken a bold stand: he dared to call homosexuality "sin". However, what happened next is even more important: he got fired by the network … and his "firing" roused a firestorm of protest that shocked everyone. People across the country are enraged that he expressed his opinion (albeit somewhat graphically) and got fired. Something about 1st Amendment … something about "conscience"… and especially something about "obedience to Christ"… all play into this series of ground shaking events.

Phil Robertson: Bursting the Bubble – "The Illusion of Popular Support"

But the REAL story is emerging. The theological and political Left have always exercised their "sway" by creating what several of their "pioneers" (Nechayev, Gramschi, Lenin) all called "the illusion of popular support." In other words, they organize followers (and as many organizations as will support them) to make bold claims that imply or directly claim their positions as "majority" positions" … or lacking that they claim "moral imperatives", "’civil’ and/or ‘constitutional’ rights", "popular outrage"… all with far less than majorities on their side. Yet, their "indignation", anger and "outrage" intimidates good people into believing that such positions DO HAVE Popular support on their side.

As Gramschi and Nechayev put it… Gain the advantage by claiming victory ahead of the real victory by Creating the illusion of popular support (stated by them in various ways), in essence, winning your position in the culture long before you ever gain real victory.

Phil Robertson’s stand burst that bubble: His faithfulness caught the Left off guard… and his supporters…all who stand with him… caught the powers that be off guard as well.

In the days and weeks ahead, he WILL be attacked by every Leftist journalist, TV celebrity, and offended "Christian" who must make Phil "pay" for his stand for Christ. Dig in for the days and weeks ahead. PERSEVERE WITH PHIL AND ENCOURAGE HIM AND HIS FAMILY TO STAND … COME WHAT MAY. Please look to the side of this post and  sign up to become a Town Crier with us. We will keep you posted.

– Wayne Sedlak, ICHR (Institute for Christian Heritage Research)

 

The Sound of Abortion