The Cyberbullying of Gay Youth

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

By now, most of you have heard the sad story of Tyler Clementi. He was that unfortunate freshman at Rutgers University whose sexual encounter with another man was secretly filmed by his dorm roommate and live streamed over the internet. Mr. Clementi then committed suicide by jumping of the George Washington Bridge, having first posted his plans to his Facebook page. The incident captured the attention of the national press, which has since worked diligently to highlight much of the bullying gay youth endure daily.

The Denver Post is no exception. In yesterday’s front page story, “Young, Gay, Bullied,” the Post focused on the high rates of depression and suicide among young gay students who are bullied by or isolated from their peers. Of particular interest is the relatively recent phenomenon of cyberbullying through blogs, YouTube, Twitter, Facebook, and other online sources. The Post cited several methods of addressing this problem, ranging from additional tolerance education and awareness programs to school administrative punishments to new legislation criminalizing cyberbullying. Such legalistic outcomes, however, would render an already tragic situation truly ghastly.

Do not mistake me. I truly do understand the problem and I do not doubt the plight of these young gay people. During my own time in high school, I was careful not to reveal my bisexuality to more than a handful of trusted friends. I was well liked, and had no desire to sacrifice social status to an identity which would have rendered me an instant pariah. Still, there were always rumors, inevitable suspicions, and occasional confrontations. Some of that was decidedly unpleasant. I was lucky, though. Those friends who did know accepted it without question. Many others would not have cared even if I had told them. And to my family it was a non issue. Not everyone is so fortunate.

Unlike other minority groups, gay students have no natural support network; their parents and siblings are generally straight. Often, families not only have difficulty relating to the problems faced by gay youth, they also actively disapprove of homosexuality. Peers, faced with overwhelming pressure to fit in, will often disassociate from gay students for fear of being labeled with the f- word themselves. Gay people faced with any one of these situations can and do feel incredible isolation and depression. That much is undisputed. Debates among scholars and theologians regarding the causes, nature, and morality of human sexuality, however, can fill volumes. It is not something to be addressed here at the Peoples Press Collective, which limits its scope to issues dealing with individual liberty, the free market, and limited government. Unfortunately, whatever one may think of their intent, many of the proposals listed by the Post to address the cyberbullying faced by young gay people negatively impact all three of those topics.

Focus on the Family correctly points out the danger to the marketplace of ideas and free religious expression with mandatory school programs and penalties specifically tailored to promote tolerance for homosexuality. Many mainstream religious traditions regard homosexual acts as mortal sins. For any public school administration or law to step in to enforce toleration and acceptance of homosexuality would usurp the province of religion to define virtue and thus violate one of the most cherished aspects of the first amendment. According to the Post, Focus on the Family instead would like to see bullying policies that protect all students against all forms of bullying for any reason. Even this, however, goes too far.

Apparently, our society has gotten to the point where at least some believe it is no longer acceptable to make gay people feel excluded or unwanted. Well and good. After all, gay marriage and civil unions are increasingly recognized in the various states and nations of the world. What about stoners though? I recall those semi-dazed individuals who would languish behind the main building of my high school, quietly smoking their marijuana while the rest of us went to class. Many students shunned them and sneered at the foul reek that hung about them. Yet, smoking marijuana for medicinal reasons is now legal in Colorado. California may soon legalize it for any reason. Should we now prohibit any exclusion or derision of such drug use? And what of students who espouse a belief in the doctrines of Stalinist Russia, Nazi Germany, or the KKK? Such beliefs are certainly legal. However, at my high school, anyone who publicly stated such beliefs quickly found themselves without a single friend and excluded from all social functions by their peers. Should such exclusion and public derision be prohibited? I think not.

The first amendment also protects the freedom of expressive association. We can choose with whom to associate. We are also free to state the beliefs and values that hold such associations together and exclude and disapprove of those who refuse to meet those values. Sports and athletics are perhaps the most obvious examples of this. While participation is voluntary, you must accept the rules in order to be included. Failure to play by those rules results in censure and exclusion. Though other human associations may not be so clear about their rules, the basic idea is the same. Politicians soon find themselves excluded from their own parties if they take positions in conflict with the party platform. Dinner guests, likewise, do not often receive a second invitation if they forgo the use of any utensils or decorum. Indeed, such behavior, if it becomes publicly known, can even cause a person to lose his employment.

While most of us appreciate our freedom of association, few people acknowledge the importance of disassociation and publicly expressed disapproval. While exclusion does make people feel terrible, it is the best tool we have to regulate social norms and values in a free society. In this way, everyone is free to choose their own social circles, promote the values which are important to them, and exclude those who do not share such values. The only alternative is to have a governmental authority dictate all values and associations. That is completely unacceptable—but it seems many people are calling for exactly that in an effort to address cyberbullying.

Obviously, any responsible school should have reasonable policies prohibiting bullying on its grounds. Name calling and similar behavior is not only rude, it is disruptive to the educational process and should be sharply corrected. In the event of a physical altercation, the law, in addition to any school policy, can bring severe penalties to the aggressor, though all people have a right to defend themselves and others. However, when school policy or legislation extends beyond the school grounds and classrooms into the social lives and online interactions of students, problems arise.

Unless an overt physical threat is expressed, cyberbullying, while often cruel and rude, is often no more than disdainful speech. Any attempt to limit it can run afoul of the first amendment. It has other unpleasant consequences as well.

By interfering in the social lives and expressions of youth, such policies take away any opportunity students may have to express and enforce their own values, and places that responsibility solely on a governmental authority. The proper response to a bully who is rudely or inappropriately deriding a friend in speech or in any online forum is to exclude the bully from social life. Conversely, if someone expresses legitimate condemnation of unacceptable behavior, the object of such condemnation should be excluded. In this way, students learn to stand up for their own values and regulate their own behaviors. It does wonders for their sense of self worth as well. When the state or school authority criminalizes such behavior and usurps all power to regulate associations and interactions, it teaches our youth to rely not upon themselves and their friends to solve problems, but on official authority. In later life, that produces well trained sheep without any self esteem who follow their employers without question and who expect governmental authority, not individual innovation, to solve all of their problems for them. That is not how a free people should live. That is how slaves and serfs live.

Every time law intrudes into the province of etiquette, these problems arise. As a lawyer, I know it for absolute truth that law is seldom the best solution to any given problem. It is vital to remember that the authority of law ultimately issues from the barrel of a gun. Law is force. It takes away any choice or option and imposes a permanent directive which must be followed lest one lose property, liberty, or even life. Etiquette, on the other hand, is wholly consensual, dynamic, and continually adaptable. Merely by exercising our right to associate and disassociate as we see fit, we express and enforce the values which we want to guide our individual lives.

At times, we will all face situations in which we are rudely or perhaps even unjustly excluded and demeaned by those who do not share our values. Certainly, young gay students face this more often than most, and I have the greatest sympathy for them and what they endure. The solution, however, is not to call for the school authorities or state legislature to enforce tolerance and acceptance of homosexuality, or whatever the case may be, upon everyone else.

Any victim of such ridicule should instead seek out a group of peers who share his values and stand ready to defend them and one another. Other students should express their own support of such individuals while publicly censuring and excluding anyone they believe is behaving rudely or inappropriately toward another individual. As families, friends, and community members, we should be encouraging our youth to express and defend our values. When we see others attacked for values we share, we should live by example and speak out in their defense, censuring and excluding bullies from our own social circles and networks. In this way, free people constantly foster and defend the values they live by—not by law, force, and compliance—but by individual choice, responsibility, and virtue. Moreover, unlike law, which imposes one standard on everyone, etiquette leaves each person free to find their own group of like minded individuals.

Having experienced the hardships bullies can impose first hand, I understand the deep desire people have to protect their children from enduring similar circumstances. As a current practitioner of corporate law with its stringent demands for professionalism, I abhor rudeness of any sort. Here at the PPC, we even created the “Political Breath” page to address issues of etiquette in political activism. However, much as I despise bullying and rudeness, I am unwilling to sacrifice my freedoms for the illusion of acceptance. Government cannot legislate social inclusion. It cannot grant self esteem. It cannot force virtue into human hearts. Only individuals have that power, and as individuals we must take the responsibility to do so.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Hate Crimes: Killing Both Liberty and Equality

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Stunned. Appalled. Deeply saddened. Angry. I remember feeling all of these emotions as I watched the tragic story of Matthew Shepard’s brutal slaying unfold in the media back in 1998. It was with great satisfaction that I watched the conviction and incarceration of his murderers. I thought that would be the end of it. Unfortunately, I forgot that a terrible emotional tragedy often leads to a terrible legal tragedy.

Yesterday, a friend called to gush happily that President Obama just signed new hate crimes legislation into law, which includes sexual orientation in its protections. He was surprised that I did not share his enthusiasm and wondered how someone who supports gay rights could fail to be pleased by this outcome. In truth, I support equal rights for all individuals. I believe every individual has the right to determine the nature and type of their intimate relations, their associations, and how to use and dispose of their own property without government interference. Because of this, I have often supported gay rights efforts. However, what right does hate crimes legislation protect?

Hate crimes legislation does not protect any right whatsoever. On the contrary, it is a prohibition. But what exactly does it prohibit? Certainly, it does not prohibit any action. Indeed, we already have a comprehensive body of law prohibiting assault, battery, murder, rape, et cetera. Hate crimes legislation does not add to this list. Rather, it criminalizes the thoughts of the defendant committing these already established crimes.

My honorable friend argued that our legal system already imposes greater or lesser punishments based on a defendant’s mental state, so I should not be overly concerned with this addition to our legal process. This is not entirely accurate, though. Consider the following two cases:

In the first case, John and Eric are playing hockey. At the end of the game, John manages to steal the puck right out from under Eric’s nose and score the winning goal. In a fit of blind rage, Eric leaps upon John and beats him to death with his hockey stick.

In the second case, John and Eric have just attended a lively Political Science class at their college, where John expressed several views Eric detested. Determining that John should be taught a lesson, Eric hid in some bushes and ambushed John as he walked back to his apartment. He then proceeded to beat John to death.

Under our legal system, Eric committed murder in both of these cases. However, in the first case, he flew into a blind rage where passion, not reason, guided his actions. Consequently, we impose a lesser penalty than in the second case, where he clearly plotted the crime and intended to commit murder. Thus, our legal system judges the defendant’s mental state of intent. We do not normally criminalize his thoughts.

Now consider the same two cases, but assume that John is gay and Eric is homophobic. Has anything really changed? Is John any more dead, or Eric any guiltier of murder than in the first two cases? No. Under hate crimes laws, however, Eric is guilty of having thoughts and values the government finds objectionable, and so his punishment is increased. This is why hate crimes legislation is so dangerous. It presumes to regulate that which should be beyond the reach of any government: our thoughts and values. That is not where the danger ends, though. Perversely, hate crimes legislation also means that, as a gay man, John’s life is more valuable to society than the lives of other men who may be straight, and thus do not share John’s increased legal protections. This is not Justice. It is patently immoral.

A society of equals cannot exist when the laws unequally value lives. A free society cannot exist where a government has the right to criminalize thought. While I agree that homophobic people are ridiculously small minded and hateful, I cannot bring myself to criminalize their thoughts and values on that subject. I remember all too well the days when homosexuals and anyone sympathetic to them was viewed by governments and society as perverse, deviant, and indeed, criminal. This reasoning applies to any hate crimes legislation, whether it is intended to protect race, religion, ethnicity, sex, or sexual orientation. The right to determine ones own values and thoughts, however objectionable others may find them, is fundamentally necessary to maintain a free society and public discourse. Contrary to what my honorable friend mistakenly believed, anyone who supports gay rights, or indeed any individual rights, should not be celebrating the expansion of hate crimes legislation; they should be trying to repeal these legal abominations entirely.

No group of people can gain acceptance through force of law. They only succeed in destroying their own liberties and becoming the oppressors they once fought. They should instead endeavor to maintain equal rights for all, and rely on persuasion to alter the opinion of their fellow citizens.

If there is such a thing as a Devil, I doubt he ever appears in flames with cloven hooves and frightening horns. It seems to me he would be beautiful and seemingly benign. In our society, the greatest devil of all is the government. Hundreds of smiling men and women, in both Congress and the executive branch, frequently offer to solve all our problems with a seemingly benign law or regulation. All it costs is our liberty and equality, the soul of the United States.

On Inalienable Rights

Lately there has been a disturbing trend in the way Americans think about their rights. By "rights", I mean our God-given, inalienable rights, some of which are enumerated in our Bill of Rights, and some of which are taken for granted.

It seems that whenever recent presidents espouse a certain policy, and perhaps are backed up by the Congress, a segment of the citizenry takes the view that their rights are being taken away. The Clinton assault weapons ban of 1994 is a fine example of this. Gun owners across the country were confounded by this unprecedented gun grab, which as we now know was useless against combating crime. Criminals still found ways to access whatever guns they chose, and law-abiding citizens found themselves subjected to arbitrary restrictions on magazine capacity, strange bans of cosmetic features, and complicated grandfathering rules. Gun owners' complaints ran the gamut from grumbling to shouting about this heavy-handedness, but most centered on the notion that Clinton, the focal point of their outrage, had taken away some of their gun rights.

Fast forward to the aftermath of 9/11. At first, the country was united out of confusion and fear. But gradually, the Patriot Act and its associated fallout caused many citizens, and not just left-wing Bush-haters, to rail against this intrusion into their civil rights. Once again, rights, civil and otherwise, were being taken away. Few people had concrete examples, except perhaps detainees who languished in prisons with their fellow presumed terrorists. However, ominous letters to the editor began to appear, talking in vague terms about how the Patriot Act, and later FISA and the Patriot Act II, were taking our rights away. We were told that we must fight to get our rights back; the general solution was to impeach the president.

I want to address this paradigm shift.

First, let us examine the meaning of "inalienable," a word used by our Founding Fathers to describe our rights. The Cambridge International Dictionary of English definition is "unable to be removed," a simple but powerful definition. So, therefore, our rights are unable to be removed. Contrast that with the cries of "Our rights will be taken away!" I say that our rights are not taken away! Rather, we are being prevented by force from exercising our rights. Our rights are given by our Creator, or exist in the natural order, depending on your belief system. Regardless, no government has the power to take away our rights, since they are inherent. Government can only use force and tyranny to prevent us from enjoying them.

Our eighteenth-century peers knew this. British troops were coming to the colonies to disarm the citizenry at the request of Governor Francis Bernard, who was having trouble controlling the population. The people had made a demand that the governor convene an assembly of the populace, which he had refused. A letter appeared in the Boston Gazette on September 26, 1768, after the colonists learned of the troops' impending arrival:

It is reported that the Governor has said, that he has Three Things in Command from the Ministry, more grievous to the People, than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this province are to be disarmed. 2d. The Province to be governed by Martial Law. And 3d, that a Number of Gentlemen who have exerted themselves in the Cause of their Country, are to be seized and sent to Great-Britain.

Unhappy America! When thy Enemies are rewarded with Honours and Riches; but thy Friends punished and ruined only for asserting thy Rights, and pleading for thy Freedom.

This letter was signed anonymously "A.B.C.", but is widely suspected to be the writing of Samuel Adams. Note the absence of any language talking of the British "taking rights away," Rather, Adams spoke of asserting rights and being punished for it. The British troops' agenda is appalling even today: disarming law-abiding citizens, imposition of martial law and imprisonment back in Britain for participating in any kind of demonstration of resistance against the unjust British policies. However, the colonists never believed that their rights were being taken away. They only believed that the tyrannical Royal Government was coming to put down their fight to exercise their rights.

Talk is ramping up yet again of all the rights that a possible Obama administration would seek to take away. I entreat my fellow lovers of liberty not to think this way. Think of the rights as being yours, that no one can take away. When we think of rights as being ours, there is a reason to fight for them. If we already think of them as lost, then there is precious little catalyst to go out and reclaim them. Our Founders knew that when an oppressive government prevented the exercise of rights, then it was time to rise up to throw off the tyranny. This is what we must do, not just against a President Obama, but anywhere we think that our rights have been suppressed.

Guest post by Meg.

Colorado Woman One Of Little Rock 9, Celebrates 50 Years Of Integration

We've come a long way (video of complete interview):

A Colorado business woman is in Arkansas this week to mark the 50th anniversary of the integration of her high school.

In 1957, crowds tried to keep nine black students from entering Little Rock Central High School.

The youngest of those students, escorted in by 1,000 soldiers, was Carlotta Walls Lanier. She is now a real estate broker in the Denver area.

She recently talked with 9NEWS about how she had the courage to face that first day of school.

"Teenagers feel like they're indestructible anyway. Yes, I heard the name calling across the street, saw the jeers saw the anger in their faces, however I did my best to stay above all of that. I'd always been taught that you do not stoop to that level. Either you help bring people up to your level or you ignore it," said Walls Lanier.

She and the eight others who integrated the school will mark the anniversary Tuesday at a ceremony at the school.