Free Speech

ACLU (California) on the Bill Restricting Speech Outside Vaccination Sites

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Last week, I wrote about SB 742, which seems on track to become California law (having passed the Senate 33-4, and the Assembly Public Safety Committee 6-2). The law would make it a crime to, among other things,

knowingly approach within 30 feet of any person while a person is making the approach within 100 feet of the entrance of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit, for the purpose of …

nonconsensual[ly] and knowing[ly] … passing a leaflet or handbill, displaying a sign to, or engaging in oral protest, education, or counseling with that other person in a public way or on a sidewalk area …

in connection with any vaccination services.

I opined that this would be clearly unconstitutional, for two reasons:

[1.] The First Amendment protects speech on public sidewalks, including offering leaflets, displaying signs, or conveying oral messages to people who haven't "consen[ted]" (whether because they haven't thought about the matter, or even if they affirmatively don't want to see the sign or hear the message).

In Hill v. Colorado (2000), the Court did uphold a restriction on "'knowingly approach[ing]' within eight feet of another person [near a medical facility], without that person's consent, 'for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.'" But the majority stressed that this stemmed from 8 feet being such a short distance:

Unlike the 15-foot zone [struck down in Schenck v. Pro-Choice Network (1997)], this 8-foot zone allows the speaker to communicate at a "normal conversational distance."

Thirty feet, on the other hand, is very far from a "normal conversation distance"; and in McCullen v. Coakley (2014), the Court struck down a 35-foot buffer zone outside a clinic in part because

[T]he zones … compromise petitioners' ability to initiate the close, personal conversations that they view as essential to "sidewalk counseling." For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone…. McCullen is often reduced to raising her voice at patients from outside the zone— a mode of communication sharply at odds with the compassionate message she wishes to convey.

[2.] On top of that, Hill stressed that the 8-foot no-approach zone was content-neutral (even though it mostly affected anti-abortion protests, given that it was limited to speech outside medical facilities). The California bill is expressly limited to speech "in connection with any vaccination services"—someone approaching people to hand out leaflets in connection with a labor dispute wouldn't be covered by the law, while someone approaching people to hand out leaflets in connection with vaccination would be. Such subject-matter restrictions are unconstitutional, see, e.g., Carey v. Brown (1981) (holding that a residential picketing ban that applied only to nonlabor picketing was unconstitutionally content-based); Reed v. Town of Gilbert (2015) (holding that a sign ordinance that treated political signs, ideological signs, and signs giving directions to certain events differently was unconstitutionally content-based).

Now here's the development: Rachel Bluth (California Health Online) wrote about this on Friday, and she quoted, among others, Kevin Baker of ACLU California Action (a collaborative project of the ACLU California affiliates):

The American Civil Liberties Union said it has no issues with it as written.

"It's not necessarily the case that the freedom to express our views is unrestricted," said Kevin Baker …. "They can be balanced with important governmental objectives" like letting people get vaccinated in peace.

I e-mailed Baker to verify his position (and alluding to my contrary position) and got this reply:

It is certainly [an] interesting and novel question, and you may well be correct. Were we to write the law ourselves, we might draw a somewhat different line. But we feel pretty confident that the courts would uphold SB 742 based on the buffer zone/bubble case law largely drawn from the fairly analogous context of reproductive health services. To be clear, however, we are not supporting the bill—we are simply neutral.

I have to say that I don't see how the ACLU's view can be correct, for the two reasons I describe (that it's much broader than the 8-foot bubble upheld in Hill, and that it's content-based); but I thought I'd note the ACLU's perspective.

NEXT: Today in Supreme Court History: August 9, 1974

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  1. The ACLU’s view must be correct, because it furthers the fascist view of America.

    1. Last time I checked, the ACLU wasn’t dreaming about returning the members of a narrowly defined nation that has been assailed by corrupted cosmopolitan elites to a glorious but mythical past based on extremely traditionalist values using violent means. So no I don’t think the ACLU is furthering a fascist view of America.

      1. That would be a great post if that was anything like what fascist means

        1. Let me guess, despite overwhelming historical evidence to the contrary and the stated views of contemporary self-described fascists themselves, you think fascism is whatever liberals happen to believe at any particular moment.

          1. Fascism isn’t so much about what you happen to believe (politically) but rather how you go about getting it. If you want people thrown in jail for saying something you disagree with, if you approve of violence directed at your political opponents, if you act like this at a legislature, it’s no use calling yourself a “liberal” — you’re a genuine fascist.

            1. By that definition, what is the difference between a fascist and a communist? They both throw people in jail for saying the wrong things, they both use violence against their political opponents.

              1. Very little in actuality. Mostly in how they control the economy. Their methodology is almost identical. Which is why the tactics of avowed Marxist AntiFA look almost identical to those of the Nazi Fascists they so deplore. AntiFA was, of course, founded and managed by the Soviets as their shock troops against those of the Nazis for the heart and soul of socialism in Germany.

                1. Bruce, I agree with you. But since it’s Ed’s definition to which I was responding, I’m curious as to what he thinks is the difference. Ed?

                  1. ” since it’s Ed’s definition to which I was responding, I’m curious as to what he thinks is the difference. Ed?”

                    Expecting rational discourse from Special Ed is a mistake of the highest order. Might as well expect it from a rock, or one of those small, yappy dogs.

                2. Indeed. In terms of control of the economy, communism worked via total state control of business.

                  Fascism worked by government and large corporations working “together” to control the economy. The government would “suggest” that large corporations do something, and the large corporations would do it.

                  Where have we seen that recently?

                  1. Republican bills to force social media to host content they don’t want to? Oh I guess that’s less a suggestion than a mandate.

                    1. Not a suggestion….

                    2. Yeah it’s a mandate. Which is worse lol.

                    3. And Democrats force social media to block people they want blocked.

                      And there is political violence from both the right and left.

                      Gosh, it’s almost as if both of our political parties show fascist tendencies. Be nice if people wouldn’t defend one while condemning the other.

                    4. LTG,
                      “bills to force social media to host content they don’t want to”
                      Curious that you bring that up.
                      Both sides of the social media debate found it shocking and downright wrong that Apple would impose surveillance rules on those who choose to use their iCloud facilities.
                      As people on the left said in defense of FB, “use or start your own social media outlet.” Same can be said about cloud services; although I don’t know why anyone truly concerned with their privacy would use any Big Tech cloud service.

                      Full disclosure, I find both FB and Apple actions deplorable, although Apple has a far more defensible reason: They do not want illegal content on their servers.

                    5. Don, in conjunction with “start your own social media company if you don’t like the way Facebook runs theirs”… or “start you own cloud computing platform if you don’t want Apple scanning their for child-porn and finding it in your account.” is the necessary assumption “… and stop using theirs.”

                  2. Well, here in Florida we’re seeing it with a Republican governor barring private businesses from having vaccine and mask mandates.

                    AL, we see that everywhere, at all times and places, regardless of who is in power. Government regulates business; it’s what government does. If your insinuation is that it’s the exclusive or even primary province of the Democrats, you are mistaken.

                    1. Also not a “suggestion.”

                      There’s a difference making a law, and “suggesting” a large corporation do something. Mostly around how the court would strike one down.

                    2. Only in the same sense that the prime minister gives the queen advice. No matter what you call it, she’s pretty much obligated to accept it. Just as businesses are pretty much obligated to do as told, whether the government characterizes it as a suggestion or a regulation.

                      And I’m not sure I agree that the distinction is relevant to the definition anyway. I don’t think it’s necessary that a fascist government make suggestions, as opposed to give orders, for it to be fascism.

                    3. Banning a rights violation is no more mandating than is banning murder.

                    4. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf, you have the right to refuse to mask or vaccinate, and businesses have the right to refuse to do business with you. Here all this time I thought you were a libertarian.

                  3. “Where have we seen that recently?”

                    There’s been a lot of it happening in your vivid imagination, lately.

                3. I would also say that as a general proposition, if you start dead center on the political spectrum, the further away from it that you move in either direction, the less likely you are to encounter reasonable people with well thought out solutions.

                  1. but, if you point this out directly to them, they hate it and wail endlessly about how oppressed they are.

                4. Bruce,
                  The historical Fascist and Communist world views are quite different.
                  You are confusing the modus operandi and routine tactics of the two with their respective motivating ideologies .

                  1. A lot of expert history has been devoted to distinguishing a, “respective motivating ideology” for Fascism. Not much to show for it. Seems like it’s a stew of opportunism, will to power, happenstance, militarism, and bigotry. Also, blood and land appeals thrown in as a method in common among various Fascist flavors, and big business and banking alliances as another method.

                    Fascism has tended to be notably anti-leftist, but without much consistency in the way that gets implemented. Some Fascists wanted established religions, and hated leftists for opposing that. Others wanted Russia, and hated leftists as an excuse, and then hated them more for kicking Fascist asses during the Russian winter.

                    Happenstance and opportunism really have played a big part. Hard to turn that into a recognizable ideology.

                    1. Yeah. All those big corporations that want to sell products to post-war Americans were totally co-opted by the Nazis, and didn’t work with them willingly at all.

              2. Communists seize businesses. Fascism relies on private ownership, with government partnership, or “partnership”.

                So threatening to hurt businesses unless they play ball and censor harrassment, hey, our political opponents’ tweets are harrassing, go figure, would be fascism over communism.

              3. “what is the difference between a fascist and a communist?”

                They hate each other violently.

            2. While I’ll agree there is a “how” component to fascism that is probably more important than the “what” in terms of actually policy, fascism is a pretty distinctive movement that isn’t simply “throwing people in jail.”

            3. So let’s find the time when the ACLU was in favor of throwing someone in jail for saying something unpopular, since we’re trying to link them to some definition of fascism here.

              1. I mean, this post is literally about how the ACLU supports a bill that would make it a crime to say something that the government of California doesn’t want people to say.

                1. Harassment was a crime before they made it specific to harassing vaccination-seekers.

            4. Ed,
              Yours is a completely ahistorical and meaningless definition based only on a narrow and narrow-minded functionalist view of the world. Although self-identified fascists may have used the tactics that you cite, their movement was not based on their tactics but on the underlying ersatz religion and their millenarianist vision of the world.
              Goodness people who use your tactic are not even totalitarians.

      2. WOW, LTG … they are not Italian fascists?

        No, they are American fascists like you…

        1. No. Neither of us are fascists because, again, we don’t have the same vision regarding “the nation.” Fascism describes an ideology and mode of politics that has been practiced historically, it’s not a label for things you don’t like.

          1. It’s one of those words that can mean anything, depending on who’s using it.

    2. “The ACLU’s view must be correct, because it furthers the fascist view of America.”

      Are they REALLY furthering you guys’ view, though?

  2. “we feel pretty confident that the courts would uphold SB 742 based on the buffer zone/bubble case law largely drawn from the fairly analogous context of reproductive health services.”

    Ding-ding-ding! Protect abortion at all costs. Just as Kagan is burdened with ALWAYS sticking to stare decisis – it’s her only hope for saving Roe v Wade. No principle – just strategy.

    1. For what it’s worth, in Hill the ACLU sided with the anti-abortion protestors (raising much the same argument that Prof. Volokh makes here):

      https://www.aclu.org/legal-document/aclu-amicus-brief-hill-v-colorado

      1. Facts are meaningless. You can use facts to prove anything that’s even remotely true.

  3. Sad, but not surprising, that the ACLU affiliate is neutral about a bill that on its face is a content-based speech restriction. Ou est le ACLU d’antan?

    1. Just another example of the reason why I did not renew my ACLU membership

  4. The “new” ACLU no longer seeks to really protect civil liberties. Instead, it’s become a propaganda arm of the elite ruling class.

    I’m certain that if the new ACLU disagreed with the government’s objectives on a policy ground, they’d be all about trying to strike down the law.

    1. They followed the science, AL; political science, that is.

      1. Or you could say they followed the money. The donation money.

        1. That as well. The ACLU have become corrupt, and strayed from their mission.

        2. So send your money to a group that WILL take up every cause YOU believe in.

    2. I agree it’s a disappointingly milquetoast response from the ACLU. Having said that, the NRA gets real quiet about gun rights as soon as there’s black people bearing the arms, so it seems like as with all things in America these days, everyone’s hardening along partisan lines rather than standing up for ideological principles.

      1. ‘Having said that, the NRA gets real quiet about gun rights as soon as there’s black people bearing the arms,’ evidence is lacking here, minus your fever dream. Perhaps if you chose a different bogeyman?

        1. They also tend to develop a substantial interest in talking about something (anything) else every time a large number of people are murdered with firearms. You’d think that since their stated position that “what stops bad people with guns is good people with guns” is correct, right after a mass murder would be the perfect time to bring that up. Why not? It always works in the movies…

    3. they will defend speech that they do not agree with as long as it only protects a small class of people or a group which is generally despised. This lets them trot out their support of free speech claim without impacting they political goals.

      Hence defending someone who tells Biden to F off or supporting some racist who want to publicly display their hate is safe. However they will not empower free speech which empowers a large that has enough political power to act on it.

      1. Just how big do you think the group of people that think they should be allowed to keep other people from being vaccinated is? Or are you referring to the group of people who think harassing people in the street is acceptable behavior for adults?

  5. “ACLU (California) on the Bill Restricting Speech Outside Vaccination Sites”

    Seriously – what are they trying to accomplish?

    Are californians that paranoid about the total of 5 or 6 people in the whole state of California that might actually protest against vaccinations?

    1. Tom,
      You clearly don’t understand the implications of living in a 1-party state

  6. Unconstitutional, but Christ what an awful person you’d have to be to actually protest a vaccination site. Westboro levels of assholery.

    1. true, but the ACLU used to be an organization that believed in “the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

      Now it’s just another organ of the Democratic party,

      1. Also depressing that “don’t bug people who are getting vaccines” is a position of the “Democratic Party.”

        1. That’s the position of nearly everyone in both parties. But only one party wants to restrict free speech by making it a law not to bug people.

          1. I mean they shouldn’t even be in the position of thinking that’s a thing they need to do, because a bunch of people in another party and their affiliated media are whipping up anti-vaccine hysteria.

            1. There’s no “bunch” of people wanting to do this in any party.

              1. You’re right it’s not a bunch. It’s just prominent people in Congress and the most popular cable news shows and internet pundits.

                1. That’s a lot of projection in defense of, literally, criminalizing speech.

                  1. I’m not defending it, I said it’s unconstitutional. I just think it’s depressing that people even think this is needed.

                    Also I don’t think you know what projection is. I would be projecting if I was secretly anti-vax and falsely attributing that trait onto Tucker Carlson for instance. Which: I am very pro-vaccine and Tucker clearly whips up anti-vaccine hysteria on his show.

                    1. Projection is the correct term – since virtually no one is protesting giving vaccines, not even a few selected individuals in congress nor a particular news organization.

                      Its only in a few freaked out liberal minds that this phantom protest is occurring.

                    2. Projection would mean I have a character trait that I subconsciously dislike about myself and am projecting that onto others and shaming them for it. It is not the correct term at all.

                    3. Tom,
                      “since virtually no one is protesting giving vaccines, ”
                      Think again. What do you think that the “pass sanitaire” requirements in NYC and LA are?

                    4. You are projecting responsibility for this law onto the politicians and pundits you think would oppose it, because you don’t want to criticize the politicians and pundits (and supposed civil rights groups) who are backing this law.

                    5. I did criticize it, I said it was also unconstitutional. Still not projection because I am very clearly not personally responsible for this law.

                    6. I just think it’s depressing that people even think this is needed.

                      Perhaps it would be less depressing if you understood the difference between something actually being needed vs someone deciding to believe that it’s needed.

                2. Just Cuomo and Biden and Harris throwing “skepticism” into vaccination….

                  “f the president announced tomorrow we have a vaccine, would you take it?’ Only if it was completely transparent, that other experts in the country could look at it, only if we knew all of what went into it.”

                  Gosh…who would ever have skepticism after that?

                  1. I mean if a known idiot and liar said he had a magic cure (again) and the actual scientists weren’t on board I would be skeptical too.

                    Luckily it never came to that because a bunch of actual scientists didn’t cave to any political pressure and simply produced a vaccine using the accepted protocols.

                    1. I mean if a known idiot and liar said he had a magic cure (again) and the actual scientists weren’t on board I would be skeptical too.

                      So you’re saying that Biden and Harris are both so stupid that they thought Trump was the one who was doing the research and developing the vaccines?

                    2. No. What I am saying is that any statements coming from Trump about anything, including treatments and vaccines, need to be treated with huge huge skepticism given what we know about his penchant for lying/idiocy and political interference in independent agencies, including scientific ones.

                      Remember: this is a guy who actually managed to briefly force a scientific agency to bolster his incredibly dumb Alabama hurricane lie.

                    3. No. What I am saying is that any statements coming from Trump about anything, including treatments and vaccines, need to be treated with huge huge skepticism given what we know about his penchant for lying/idiocy and political interference in independent agencies, including scientific ones.

                      Oh, OK. So you’re saying that they’re so stupid that they thought such a vaccine might actually be released with no information made available about it nor any scientific review. That’s much better.

                    4. No I’m saying that Trump might have been pressuring the FDA to cut corners.

                    5. Only if it was completely transparent, that other experts in the country could look at it, only if we knew all of what went into it.

                      No allegation there about the FDA cutting corners, nor that even being relevant to the alleged concerns. Keep trying.

                    6. “What I am saying is that any statements coming from Trump about anything, including treatments and vaccines, need to be treated with huge huge skepticism given what we know about his penchant for lying/idiocy and political interference in independent agencies, including scientific ones.”

                      But his brilliant idea of using bleach inside people to disinfect them worked out so well…

                    7. But his brilliant idea of using bleach inside people to disinfect them

                      Still trying to make people wonder whether you’re a pathological liar or just the dumbest SOB on the planet?

                    8. “Still trying to make people wonder whether you’re a pathological liar or just the dumbest SOB on the planet?”

                      Still trying to make sure there’s no doubt who the dumbest SOB on the planet is, was, and will remain, you, you dumb SOB?

                    9. Do you take your bleach straight up or on the rocks?

                    10. “So you’re saying that Biden and Harris are both so stupid that they thought Trump was the one who was doing the research and developing the vaccines?”

                      Literally nobody said that but you. A realistic claim would be that Trump was looking for someone who did something useful, so he could step in and claim credit for doing it, whether or not it did what it was supposed to do. But that’s crazy talk, he would NEVER do that, and if he did, he’d be so smooth doing it that there’d never be a chance that anyone could catch on that he was lying.

                  2. LOL. I know you’re just trying to win an argument, but do you seriously think that the huge amount of vaccine resistance primarily in conservative parts of the country is because of Harris’s or Cuomo’s statements on vaccines almost a year ago? I mean, we all know you don’t think that, because it’s really stupid.

                    1. There could be more than one reason for vaccine resistance, you know, and different reasons at play in different places.
                      But I’d be curious to hear your explanation for Georgia vaccine rates (<40% fully vaccinated, voted Biden/Harris) vs. Florida rates (49% fully vaxxed, voted Trump)

                    2. “I’d be curious to hear your explanation for Georgia vaccine rates (<40% fully vaccinated, voted Biden/Harris)"

                      <40% of the people who can be vaccinated voted Biden/Harris. No, this is not another bogus election fraud claim, just noting that a substantial number of American people voluntarily disenfranchise themselves, plus a fairly large number of people who can get vaccinated weren't old enough to vote for Biden/Harris or anyone else.

                  3. “Gosh…who would ever have skepticism after that?”

                    Well, the stupid would have quite a bit of skepticism, and the simple-minded, and the idiots, and the Republicans.

                    1. Man, you are an innumerate moron. If more people could get vaccinated than could vote, then it is even harder explaining the discrepancy between low vaccination rates in Georgia (which went for Biden) and higher rates in Florida (which went for Trump) along the lines of “Trump voters are anti-vaxxers”

                    2. “Man, you are an innumerate moron.”

                      If, by this you mean that in my mind, numbers don’t magically change to match political ideology, you might be right. If that’s not what you meant, then you’re doing it (English) wrong.

                      I didn’ t say anything about vaccination rates in Florida. If I had, I might have pointed out that some portion of Floridians are transplanted from somewhere else before they get the Florida virus and turn into Florida Man.

            2. I mean they shouldn’t even be in the position of thinking that’s a thing they need to do

              Well, is there actually a good reason for them to think that? In other word, have there been spates of protests at vaccination sites in California or elsewhere that I haven’t heard about?

    2. People have lost their minds on this stuff.

      I have a nephew who is an otherwise decent guy. College educated and all. He and his wife have two small daughters.

      I don’t know his politics exactly because I don’t talk to him about it. But he is convinced that the vaccine will change his DNA. So no vaccine for them.

  7. Perhaps this is the ACLU’s homage to the viewpoint-driven censorship Prof. Volokh and the Volokh Conspiracy have repeatedly Imposed.

    1. And yet you’re still, here once again contributing absolutely nothing to the conversation.

      Do you just copy and paste this stuff? This is a been at least the 20th post saying how oppressed you are. Find a hobby and give it a rest.

      As far as censorship goes, volokh seems to be pretty half-assed about it since we still have to put up with your purposefully enraging, zero insight babbling about clingers and inevitable defeat. It’s almost AI generated word salad at this point.

      1. Joe,
        Do yourself a big favor and Mute Kirkland. Life will improve

      2. “And yet you’re still, here once again contributing absolutely nothing to the conversation.”

        Because whining about it adds SO much, you hypocrite.

      3. “This is a been at least the 20th post saying how oppressed you are.”

        The number of times I mention this blog’s viewpoint-driven censorship is a fraction of the number of times the proprietor dons a fake libertarian costume and masquerades as a champion of free speech.

        Get him to ban me (again), get him to censor me (again), or quit whining, clinger.

      4. AI implies intelligence, and at some future point, the possibility of consciousness. The commenter to whom you are replying has little chance for either, but does corner the market for pointless smug bullshit, abusive bigoted language, and rape fantasy. DN is correct, he is one of the trolls that you would be better of muting if you are here to debate. If you want to watch it mewl and lie pathetically, don’t, it’s a good show.

    2. Yes, because the power of a blogger is the same as the power of the sovereign state of California.

      Are you a moron, or do you just play one on TV?

    3. Arthur, you’ve been censored what, once in ten years?

      1. K_2,
        Why bother to even read what Artie has to say?

        1. Same reason one might tune in to re-runs of the Bozo the Clown hour.

          1. fond childhood memories?

      2. Four or five times, at least . . . and again every time I want to use a term such as “c_p succ_r” or “sl_ck-j_wed” — but refrain from doing so, because the proprietor has imposed prior restraint.

        Which, of course, he is entitled to do. His playground, his rules.

        But he also deserves to have his hypocrisy and partisan authoritarianism noted, much to his sycophants’ displeasure.

  8. The right to be vaccinated in peace….must in those penumbras…

    1. There might not be a constitutional right to it, but surely people should, as a normative matter, not be hassled when getting a vaccine?

      1. Sure, agreed. And still only 1 party wants to restrict free speech. I haven’t seen any reports of harassment or anything similar that this could be seen as a reaction to. Have you?

      2. You are right. And I should not have to get hassled by BLM protesters either as a normative matter.

        1. Does that happen to you a lot?

          1. All the time.

            1. When and how?

            2. LTG: “Does that happen to you a lot?”
              JtInane: “All the time”

              So stop crashing their parties.

          2. I guess you missed the leftist paramilitaries recently attacking a prayer service in Oregon, beating people and destroying their audio equipment, while police did absolutely nothing to stop the criminals.

            1. According to Sarcastro and others around here this does not happen. The only political violence recently was an attempted right wing insurrection back in January. All others are isolated incidents. Antifa is a creation of the right wing media.

              1. You really need to read what I write. The Sarcastr0 in your head is much easier to argue against, but also not real.

                1. To be fair to Jimmy the Inane, we only have your word for it that YOU are real, and he doesn’t seem to want to take your word for it.

            2. Was Jimmy in that prayer group? Also this happened to recently:

              https://mobile.twitter.com/davenewworld_2/status/1424704847027245058

              1. Are you really comparing a single context-free photo to an organized gang attack on a prayer service?

                1. I mean, maybe calling the person a “right-wing terrorist” want enough of a red flag to make you think that you were getting a biased report. And maybe you aren’t familiar with what “journalist” means to the kind of person who calls themself “50 Shades of Whey”. And maybe you don’t know enough about guns to realize that essentially every mention of an “assault rifle” in that kind of context is wrong. But even someone that ignorant should understand that a single photo taken without any information about the preceding or following events is probably meant to mislead.

                  1. HE HAD HIS FINGER ON THE TRIGGER AND POINTED IT AT AN UNARMED PERSON. THAT IS A CRIME.

                2. You have your violent scenario I have mine.

                  And what possible context could make aiming a rifle without any trigger discipline at a clearly unarmed person acceptable and not a crime?

                  1. LTG,
                    Despite that, I am rather disturbed that even those that call the January 6 riot an insurrection have had no objection to the long periods of solitary confinement of many of those arrested. The use of such confinement for any but the most violent, hardened, convicted criminals is a human rights violation.

                    This is not an argument about whether people arrested did or did not commit crimes, but about the humane treatment of prisoners in a manner akin to torture to elicit guily pleas.

                    1. Don Nico, I call the events of January 6 an insurrection. But people charged for violence during that incident should still be treated with a presumption of innocence, and probably should be out on bail. If they are not, then it is appropriate to question whether the unusual treatment was decided by due process, as it may or may not have been. Of course, due process can be reviewed.

                      On the other hand, I am disturbed by early signs that prosecutors intend to charge violent crimes committed during the insurrection as ordinary misdemeanors, and without consideration for the extraordinary public danger that undoubtedly concerted action created. The context of insurrection should neither be ignored, nor downplayed by concentration solely on handing down sentences comparable to what might be appropriate for someone committing battery in a bar fight.

                      It seems prosecutors may have decided to try cases in order, beginning with less serious offenders, and with a prosecutorial eye toward avoiding charges of political prosecutions. Given the political nature of the crimes, that may be a mistake, which puts off limits the most serious aspects of provable criminal conduct by these defendants, some of whom already have imposing criminal records. The hazard is creation of a record which lacks deterrent value for repetitive similar events. In at least one case, a judge apparently shocked by the lenient sentence requested, has already asked prosecutors if they had given due thought to deterrence.

                      Copious evidence is already available. It might make more sense to try the worst offenders first, convict them, and hand down draconian sentences. Thereafter, leniency in lesser cases would be more appropriately understood as merciful, instead of weak.

                    2. Stephan,
                      The term “insurrection” is at best a political decision. IF there is evidence of that crime, it should be charged.
                      I am agnostic about what the underlying nature of the riot was. I have little doubt that crimes were committed. My comment had nothing to do with the nature of those crimes either physical or political. It has nothing to do with the order of prosecution. That is a matter of prosecutorial discretion.
                      There has been NO evidence whatsoever than any of the persons arrested are dangerous criminals who would constitute a threat to fellow prisoners, either convicted or awaiting trial.
                      On that basis I consider solitary confinement to constitute a human rights violation of the same order as “enhanced interrogation” or torture if you prefer.
                      One may be disturbed about the neutrality of the ACLU about the CA bill, but their silence about a human rights violation is far more disturbing.

                    3. I *absolutely* have a problem with that. But since solitary confinement is pretty commonly used against inmates in general, my issue is more with our criminal justice system broadly.

                      I’m not giving the special pleading here a lot of attention, because it’s being used as a bloody shirt; no one who is up in arms about it is asking for the system to be reformed, just whipping up populist support for assholes.

                    4. Sarcastr0, “I’m not giving the special pleading here a lot of attention, because it’s being used as a bloody shirt; no one who is up in arms about it is asking for the system to be reformed, just whipping up populist support for assholes.”

                      I am against anyone being held with or without bail in all cases unless there is real evidence the person is a flight risk. That is the only reason bail should be required. And if bail is required the prosecutor should be required to be ready to go to trial in 30 days or less if the person can’t afford the bail or is held without bail.

                    5. “I am against anyone being held with or without bail in all cases unless there is real evidence the person is a flight risk. That is the only reason bail should be required.”

                      Danger to the community is ALSO a reason to deny release pending trial. This is why we don’t take the people detained at Guantanamo Bay and drop them on the streets of, say, Cincinnati while they wait to be tried.

            3. “I guess you missed the leftist paramilitaries recently attacking a prayer service in Oregon, beating people and destroying their audio equipment, while police did absolutely nothing to stop the criminals.”

              A couple of years ago, a fellow left one of those “prayer meetings”, and decided that harassing a couple of teenage girls on a transit train was a good use of his time. When some bystanders objected to harassing teenage girls, the poor oppressed fellow had no choice but to murder them right on the train.

          3. Does that happen to you a lot?

            I can say I’ve been hassled by BLM protesters at least as much as I’ve been hassled by anti-vaccine protesters (and I’ve been vaccinated…twice).

      3. no one is being hassled when getting a vaccine – except those in a liberals delusional mind.

          1. In the areas around Atlanta, schools started opening up again last week. Some of the schools are mandating masks for children in school, and some of the schools are not mandating masks for children in school, and there have been protests against both approaches.
            i would not be surprised to find that some nut was out there protesting people getting vaxxed up, just like it wasn’t a surprise to find that some nut showed up at a pizza place demanding to see the pedophile sex dungeons in the basement, and wasn’t dissuaded by the fact that the place doesn’t have a basement.

        1. “no one is being hassled when getting a vaccine – except those in a liberals delusional mind.”

          Then nobody is being harmed by a law criminalizing hassling people getting a vaccine. QED.

      4. Agreed, and the 8 foot rule that applies to reproductive services should apply in the vaccination case also

        1. Don Nico, what would your position be on letting demonstrators photograph vaccine seekers, and put their pictures on the internet? How about record their license plate numbers, and dox them later?

          1. “what would your position be on letting demonstrators photograph vaccine seekers”

            Are we still talking about California? Because photographing people there is a major industry. People get paid to be photographed in California. Are your hypothetical demonstrators paying market rates?

    2. “The right to be vaccinated in peace….must in those penumbras”

      Hey look at that! It finally happened! You finally managed to get one right! You should celebrate.
      The right to get medical treatment in peace does, indeed, fall in the penumbra of the right of privacy.

  9. I have long held that the “AC” in ACLU actually stands for “Arbitrarily Chosen.” Here is more proof.

    1. I thought it stood for “Another Commie”….?

      1. Did they teach you the secret Commie handshake when you joined up? Did you try it out on any ACLU members, to see if they’d respond?

  10. ACLU = Democrat Party attack dog.

    1. The last vestiges of any credibility in the ACLU can be found with a select few state chapters. Other than that, it has been converted into just your standard issued inside the beltways left wing think tank. It is definitely not your father’s “civil liberties union” anymore and is only concerned about “civil liberties” in a political sense.

      1. ” It is definitely not your father’s ‘civil liberties union’ anymore and is only concerned about ‘civil liberties’ in a political sense.”

        When you’re all done ranting about your political enemies, would you mind pointing out when anybody was concerned with “civil liberties” in a non-political sense?

  11. The difference is obvious. Government has an arguable compelling interest in vaccinations. It has no similar compelling interest in abortion.

    To say that both are “medical procedures” is to say that a puddle and a flood are both “water,” and hence cases limiting the steps government can take to ensure table manners and prevent dinner glasses from being spilled should control measures to prevent a flood.

    Breadt augmentation surgery and vaccinations are not the same. Why should the constitution treat them similarly?

    Traditional compelling interest has involved threats to the survival of society. Plague imposes such a threat. Abortion, whatever one may think of it, does not.

    Professor Volokh has called the court’s pre-Smith Free Exercise Clause jurisprudence watered-down or fake compelling interest. Plague, at least arguably, is the real thing.

    1. “Government has an arguable compelling interest in vaccinations. ”

      So how far does that go? Can the government censor anti-vaxx discussion? Scientific papers about the risks of vaccines, or publishing data about side effects? Suppose someone argues that, for those under 18, the risks from getting the vaccine are greater than the risks of contracting and being harmed by the virus?

      1. Well, the old cases said that in a war, government could prevent anti-draft protests that risk disrupting the work of the draft board. As Korematsu held, it can put citizens in concentration camps.

        Korematsu was overruled on grounds that the Government didn’t get the facts right. But if the facts had been correct, it would have been valid.

        The question posed is whether those old “true compelling interest” cases apply. M

        Government’s powers in a plague are quite broad. Government can forcibly keep people in their homes. It can forcibly put people in quarantine institutions that are effectively concentration camps. It can forcibly treat or vaccinate people.

        1. You are not answering my questions. Can the government censor discussion on the basis I indicated?

          And for that matter, if we are talking about protests, can the government prevent protests at vaccination clinics, but not other kinds of protests?

          To look at it from a different perspective, what exactly is the harm this new bill is aimed at? That people going to get vaccines will be harrassed? Or that they might be persuaded not to get the vaccine? Is the latter legitimate under the First Amendment?

          1. “And for that matter, if we are talking about protests, can the government prevent protests at vaccination clinics, but not other kinds of protests?”

            Can they prevent disruptive protests? Very likely. Not so likely for peaceful protests. Petitioning government for a redress of grievances is Constitutionallly-protected, even for stupid grievances.

      2. “So how far does that go? Can the government censor anti-vaxx discussion? Scientific papers about the risks of vaccines, or publishing data about side effects?”

        They might be able to censor false anti-vax information, in much the same way they can prohibit false advertising, and fraud, and make blue-sky securities laws without violating the 1A. It would certainly get sketchier if they tried to block statements that are actually true.

        1. And we will have government functionaries deciding what is true and false? Even in matters where scientific opinion looms large, and at a time when data is still being gathered?

          Does anyone not see how this is a recipe for disaster?

          1. Hint: things that are true are true no matter who believes it, and things that are false are not true, no matter how badly some twit wants it to be true. This is the nature of objective reality.

            1. PS: I’m sorry you consider accepting objective reality to be a recipe for disaster. Perhaps next time, you should consider joining a universe without a second law of thermodynamics, assuming you are offered a choice.

    2. That said, I recognize the merits are separate from the main point of the post, which is that the ACLU has largely become a political organization rather than a non-partisan civil liberties organization, and in so transforming itself, it has de-emphasized civil liberties that have become inconvenient to achieving the objectives of its political constituency.

      The old ACLU would have defended free speech, even if it might have lost in the courts, and even if I might think it should.

      1. The ACLU is just a cash fat left wing political think tank these days. Any credibility it has on civil liberties is a carryover legacy that is no longer applicable to their current operations.

        1. Your credibility is entirely spotless. Nobody could possibly doubt your commitment to civil liberties.

      2. ” the ACLU has largely become a political organization rather than a non-partisan civil liberties organization”

        Picking between human beings and bat viruses shouldn’t be considered partisan political decision.

    3. “Government has an arguable compelling interest in vaccinations.”
      Maybe yes and maybe no. The the deep blue county of Alameda CA, I don’t see that policy as bearing much fruit except by hypothesis.

      I say this as an advocate of getting vaccinated

    4. “The difference is obvious. Government has an arguable compelling interest in vaccinations. It has no similar compelling interest in abortion.”

      Conservatives take exactly the opposite position. They think abortion is a vital concern for government, and are lukewarm, at best, on vaccination.

  12. Is this a thing?

    Have people actually been gathering outside vaccination sites and discouraging people from taking the vaccine?

    I occasionally drive by 2 different abortion clinics and often see protesters outside demonstrating. I drive by any number of vaccination sites regularly and have never seen a similar demonstration.

    Also I watched a news report on Covid in Louisiana where they interviewed a number of people in Baton Rouge. Every person they interviewed was white including doctors, nurses and patients. In East Baton Rouge Parish where the City of Baton Rouge is located 43.63% of whites are vaccinated but only 33.2% of blacks.

    The media seems to be attempting to blame conservatives for low vaccination rates but neglecting blacks who are at least as resistant to vaccination.

    1. “The media seems to be attempting to blame conservatives for low vaccination rates”

      Funny about how whining about mask mandates and vaccination raises the public perception that you are anti-vax.

  13. 1. Hill v. Colorado (2000) was a terrible decision that used a lot of cases (incl. 4th Amendment cases) in … interesting … ways to bolster its decision. While I tend to agree on policy grounds that a lot of the anti-abortion protests were basically harassment, just like I despised the Westboro Baptist Church, it’s still content-based censoring of dissent and should have been struck down.

    2. That said, it is precedent. But it’s weak and should be easily distinguished.

    3. The ACLU is not obligated to accept all cases, but to remain neutral? Ugh. I will defend the ACLU in the main from most attacks, but this is not a good look.

    1. This was an interesting post, loki13; thanks for the case cite.

  14. Balancing the right to speak with the right to not hear it. Has that EVER been easy?

    Coming close enough to show a sign seems over the line to me. But for passing of handbills to people who don’t want them? That sounds like battery tort to me, and letting people get close enough to do it could lead to assault torts, and perhaps some counter-battey.

    I’m a long way from California, and I don’t see anything to get irate about, unless someone wanted to harass people waiting to get vaccinated or disrupt vaccinations.

    1. It’s “amazing” how you’re only discovering this “principle” now that the Left is no longer the one doing the activity you want to ban.

      It’s almost like you leftists are totally amoral, power hungry monsters who are utterly lacking in anything approaching a principle.

      Quick check, just for fun: What do you think about BLM / Antifa protesters blocking streets?

      1. Spare me the ranting about “we leftists”. You wouldn’t know a leftist if you were actually interacting with one, which you are not.

        “Quick check, just for fun: What do you think about BLM / Antifa protesters blocking streets?”

        I’m against protesters blocking streets. I was against it when it was Critical Mass doing it, too.

        I’d be against it if it was idiots blocking the streets, too, in case you were starting to get ideas about blocking streets.

      2. Do you want to try reading the comment you’re responding to again?

    2. The “right to not hear” speech on a public sidewalk? Where’d you get the idea there’s such a right?

      1. When Sony started marketing the Walkman.

        1. Ah, so you don’t actually understand the concept of a legal “right”. I am not surprised
          But fine – let’s play your game – the people in line for vaccines could just put on their Walkmans , why does CA need this law?

          1. I like the way, in your formulation, YOUR inability to reason proves something about what I think.

            1. I am perfectly capable of reasoning, but you are unable to comprehend what you read. If I have technical solution that helps me avoid something I don’t like, or if a company sells a device that helps me avoid something I don’t like, that does not make “avoiding something I don’t like” into a “right”.

              1. “I am perfectly capable of reasoning”

                Objection! Assumes facts not in evidence.

              2. ” that does not make “avoiding something I don’t like” into a “right”.

                You’vve confused the right to speak freely with a nonexistent right to make people listen.

                1. No, you’re the one confused about that. The CA bill is about restricting people’s right to speak freely. You think that conflicts with a right you made up, “the right to not hear it.”

                  1. The California bill is about restricting people’s “right” to harass people waiting for vaccination.

                    1. It is a bill that restricts non-threatening, non-inciting speech on a public sidewalk, an enumerated right protected by the constitution.
                      It criminalizes speech based on content, and is unconstitutional on its face.

                      Actual harassment is already defined as a crime in the CA penal code, you don’t need a new law to criminalize harassment.

                    2. Unlike you, I do not believe that a right to harass people actually exists, and your insistence on describing a law the precludes harassing people as a law against speaking freely doesn’t change that. LIterally 100% of the people in California remain free to say “I don’t think that other people should get vaccines”, but only a fairly small number have any kind of right to act to keep people from getting vaccines.

          2. “why does CA need this law?”

            Did you not understand that “I am a long way from California” means that I am not in California? The nice people in California thought they needed this law. Try asking THEM why they think harassing people waiting in line to be vaccinated is a bad thing that ought to be illegal, if you can’t work out any reasons on your own.

            1. Hint: I also mentioned Atlanta. Maybe take this as a strong indicator which time zone I am currently in.

              1. Where you are located or which state is proposing this law has no relevance to the debate here. This is a law that limits free speech, when, according to your logic, it is not needed, as people can just use some mechanical device to block the unwarted speech.
                It’s your ridiculous argument, own it.

                1. You asked me why California needs such a law. I am not California.

                  1. Your being in California (or not) has no bearing on the question why CA needs this law.

                    1. Do you not understand English? If you want to know why CA thinks they need this law, you’ll need to consult someone who can speak for California. I remain a distant observer.

                2. “according to your logic, it is not needed, as people can just use some mechanical device to block the unwarted speech.”

                  Oops. You have failed to actually apply “my logic”, or any logic, in deciding in your mind what my position is.

                  1. Your position, as stated by you, is that when Sony started marketing the Walkman, a right not to hear stuff that annoys you was created.
                    (See above , in response to my question “Where’d you get the idea there’s such a right?” you answered “When Sony started marketing the Walkman”)
                    Obviously, this makes you look like a moron, but that’s not my problem. You made the idiotic argument, no you need to own it.

                    1. “Your position, as stated by you, is that when Sony started marketing the Walkman, a right not to hear stuff that annoys you was created.”

                      No. My position, as stated by ME, is that you do not have a right to harass people on the street. My position, as stated by YOU, is “when Sony started marketing the Walkman, a right not to hear stuff that annoys you was created.”

                      Please leave me out of your disagreement with yourself in future.
                      Thank you.

  15. So AT BEST, the ACLU is saying “this might get upheld, we won’t fight for this speech”. Yikes.

    1. Sounds a lot like “this isn’t our fight”.

      1. So free speech isn’t the ACLU’s fight?
        Sounds about right for today’s ACLU.

        1. “free speech” covers a lot of ground. Are they supposed to be protecting the right to make child porn, too? Or is it OK if they take a pass on that one?

          If YOU want to take a stand defending the right of assholes to bug people, go ahead and take that position. Whining because someone else won’t accomplishes approximately nothing.

          1. Free speech, as in protecting the dissemination of unpopular opinions, used to be one of the hallmarks of the ACLU.
            They used to think that defending the rights of neo-Nazi assholes to march in a predominately Jewish neighborhood was important, not because they thought it was a great idea to provoke Holocaust survivors, but because they understood that once you give government the right and power to decide what kind of speech is the acceptable kind of speech, soon there is no speech that is acceptable.

            When you grow up you might understand that distinction, but I doubt it.

            1. “They used to think that[…]”

              Maybe the idea that THEY get to decide what they think over your objections is mean and unfair, but it isn’t.

              When you master rational thinking, maybe you can understand, but how much longer should everyone else wait around for that to happen? With no signs of it so far…

              1. I never said it’s not their right to stop supporting free speech, or that it is “mean” or unfair of them. I was just lamenting that they did so, and observing that an organization that was once a bastion of free speech has now devolved into an organ of the Democratic party, their former principles be damned.
                What part of that seems irrational to you?

                1. You’re complaining bitterly that they won’t take up your fight. Is that the rational part?

                  1. This is a blog where people express their opinions. My opinion is that the ACLU no longer lives up to its historical principles. There’s nothing irrational about it.
                    But seeing as many of your comments here amount to nothing more than calling people names, I guess it is too much to expect you to understand that.

                    1. Your opinion is of no value.

                    2. “seeing as many of your comments here amount to nothing more than calling people names,”

                      If you object to having your opinions labeled as “stupid”, keep the stupid ones to yourself.

  16. Wow, so you mean the ACLU is now a wholly owned subsidiary of teh DNC?

    I’m shocked, shocked!

    1. You’re stupid, stupid!

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