"New Justice Department Documents Show Huge Increase in Warrantless Electronic Surveillance."

The ACLU reports on "documents, handed over by the government only after months of litigation."

The "American Taliban" John Walker Lindh seeks more religious freedom in prison.

He's serving a 20-year sentence in the federal prison in Terre Haute, Indiana, and the request is for more group prayer — his sect "requires group prayer if it is possible" — and he also objects to needing to pray in his prison cell because he's too close to the toilet. He's represented by the ACLU, which characterizes the prison's rules as discriminating against religion (and not merely denying a special privilege to religion):

"This is an open unit where prisoners are basically out all day," said ACLU legal director Ken Falk, noting that inmates are allowed to play basketball and board games, watch television and converse as long as they speak English so the guards can understand.

"They can do basically any peaceful activity except praying," he said. "It makes no sense to say this is one activity we're going to prohibit in the name of security."

The government, citing a "radical, all-Arabic sermon" by Lindh, argues "that religious activities led by Muslim inmates are being used as a vehicle for radicalization and violence in the CMU."

If a public school does a seasonal, multicultural concert with songs like "Feliz Navidad" and "Hava Nagila"...

... can it remove the song "Raghupati Ragava Raja Ram" — which refers to the Hindu gods Sita and Rama and contains the line "God or Allah is your name" — after various parents complain?

If you think it's unconstitutional, is it a violation of free speech, freedom of religion, or the Establishment Clause?

"12 Days of Religious Liberty."

The ACLU highlights its work in the field of religious freedom, in a series of blog posts.

Day 1: ACLU Defends Church's Right to Run "Anti-Santa" Ads in Boston Subways

... In 2002, the ACLU of Massachusetts filed a First Amendment lawsuit against the Massachusetts Bay Transportation Authority (MBTA) for removing subway ads promoting the views of a local church and refusing to sell additional advertising space to the church. One of the controversial ads, paid for by The Church of the Good News, said that early Christians did not celebrate Christmas or "believe in lies about Santa Claus, flying reindeer, elves and drunken parties."

The ACLU argued that the MBTA cannot refuse advertising space to groups it disagrees with.

In Madison, Wisconsin: "a school for 60 male and 60 female sixth-graders geared toward low-income minorities."

Well, they did address the sex discrimination problem. Originally, Madison Prep was to be an all-boys charter school — with the Madison school district is pouring $10.5 million into this lavish experiment. After hearing from the ACLU, there will be equal numbers of boys and girls, albeit with boys and girls in separate classrooms.

Did they hear from groups who are concerned about setting up a separate school for "minorities"? The school — with the original all-boys structure — was proposed by the Urban League of Greater Madison.

They say that 20-foot cross that the ACLU objects to was a gift from Woody Allen.

What a funny world we live in!

The ACLU of New Jersey threatened legal action against the Neptune school district after an attendee at last year’s graduation ceremony took offense to the building’s religious symbols and Christian-based references -- among them a 20-foot white cross above the auditorium’s entrance. The ACLU asked the school to remove or cover up the cross and three other religious signs, arguing their visibility during a public school event is a First Amendment violation....

The Camp Association said it could not cover the cross, said to have been a gift from movie director Woody Allen, who used the auditorium during shooting for the 1980 film "Stardust Memories."

Interestingly, if this case goes to court, the key Supreme Court precedent will be Van Orden v. Perry, the case about the 10 Commandments monument on the Texas State Capitol grounds, and that monument supposedly originated as a promotion for the Cecil B. de Mille movie "The Ten Commandments." From the oral argument in Van Orden:

Justice O'Connor: How did this monument get there? Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that. There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country. But there is nothing in the legislative history that links this particular monument to that.

And the cross is only said to be a gift from Woody Allen.

Where do all the religious stories come from? If there were movies back in Biblical times, what movie directors would be wandering around in those old Judeo-Christian stories? Anyway, I tried to find a YouTube clip showing the cross in "Stardust Memories," but I can't remember that movie well enough to know what scene it's in. I did run across this clip from Woody's "New York Stories" that has a little Larry David performance in it. And here's Larry David saying "Religion should be made fun of, it's quite ridiculous, isn't it?... If I really believed that stuff, I'd keep it to myself, lest somebody think I was out of my mind":

Margie Phelps, a daughter of Fred Phelps, will be arguing before the Supreme Court today.

The issue is freedom of speech, and the speech in question is repulsive. (Phelps's church protests near military funerals, with signs like "Thank God for Dead Soldiers," to express the view that God is punishing the U.S. for its immorality.) The father of one soldier sued for intentional infliction of emotional distress — which is a tort — and won $5 million against the church.

Much more detail at SCOTUSblog.  This is telling:

[T]his case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.

Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.

The quality of legal advocacy... is that meant as a laugh line? How did it happen that the work of upholding First Amendment rights is in the hands of Margie Phelps? I don't know the story, but it's not that the usual free speech defenders have failed to support these profoundly unpopular and ugly speakers. There are amicus briefs from the ACLU and from law professors in support of the Phelps group.

It will be interesting to see how Margie Phelps carries out her lawyerly task. Back in 2004, Michael Newdow argued his own case in the "Under God"/Pledge of Allegiance case and his nontraditional, passionate style seemed to work rather well.

Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case.... But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described ''under God'' as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.
The vote was unanimous, Dr. Newdow said.

''Well, that doesn't sound divisive,'' the chief justice observed.

Dr. Newdow shot back, ''That's only because no atheist can get elected to public office.''

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared ''if there's any more clapping.''

I doubt if there will be any clapping for Margie Phelps. Or any dinner-table-style repartee. She's coming in from the other end of the God spectrum, and we shall see how that sounds.

"RESURRECTION: NYT runs Obama 'cross' photo..."

Says Drudge, pointing to this "Illustration by Nola Lopez, photograph by Damon Winter." I'm not sure where the photograph ends and the illustration begins, but, either way it's quite a bizarre accompaniment to an article called "As Health Vote Awaits, Future of a Presidency Waits, Too." I don't think there's anything in the article even touching on religion... except to the extent that Obama is some kind of religion.

IN THE COMMENTS: Some of you think that the cross in this context should be understood as representing health care and not Christianity at all. (Sea Urchin said: "Well, it is a square cross, which I associate first with the picture on my first aid kit.") I hope that if you think that, you also agree — and many don't — with what Justice Scalia said at oral argument in Salazar v. Buono, the case about the cross that the Veterans of Foreign Wars built in the Mojave National Preserve, which is supposed to honor the soldiers who died in WWI:

"It's erected as a war memorial. I assume it is erected in honor of all of the war dead... What would you have them erect?...Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?"

Peter Eliasberg, the American Civil Liberties Union lawyer arguing the case, explained that the cross is the predominant symbol of Christianity and commonly used at Christian grave sites, not that the devoutly Catholic Scalia needed to be told that.

"I have been in Jewish cemeteries," Eliasberg continued. "There is never a cross on a tombstone of a Jew."

There was mild laughter in the packed courtroom, but not from Scalia.

"I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion," Scalia said, clearly irritated by the exchange.

IN THE COMMENTS: Palladian said:

There's a theory that the symbol of the red cross was painted on the baseboards of corridors in the great palaces and castles of England during the middle ages and Renaissance to deter people from urinating in those places, a common problem in those times. It was supposed that a person would not want to micturate upon the symbols of Albion and of his saviour Christ. These effluence-protected spots thereby became associated with cleanness, which led to the later use of the cross to connote sanitation and hygiene. This association eventually led to the use of the red cross as a symbol for medical practitioners, once the connection between hygiene and disease prevention was made, that is.

Khalid Sheikh Mohammed is likely to go without a lawyer and use the trial as a stage for the expression of his ideas and the acting out of his martyrdom.

In Guantanamo, he has rejected the efforts of lawyers to protect his rights.

Even a lawyer for the ACLU, which has been helping to safeguard the rights of the terror gang, conceded that the likelihood they go it alone in court is high.

"It's quite possible that these defendants will undertake to represent themselves," Ben Wizner said. "They've been trying to fire their lawyers the whole time so they can be executed." 

Experts say it's possible Mohammed will plead guilty, seeking a quicker path to death.

 Experts also say that real American-style legal work on his case can be tremendously effective:

"The first thing they're going to do is challenge all of the evidence and say all of it is the fruit of waterboarding," [lawyer Alan] Dershowitz said.

Obama opposes the release of more Abu Ghraib photo.

CNN reports:

"Last week, the president met with his legal team and told them that he did not feel comfortable with the release of the [Defense Department] photos because he believes their release would endanger our troops, and because he believes that the national security implications of such a release have not been fully presented to the court," [an Administration] official said....

The ACLU said the Pentagon had agreed to release a "substantial" number of photographs by May 28. Officials at the Pentagon have said the photographs are from more than 60 criminal investigations between 2001 and 2006 and show military personnel allegedly abusing detainees....

"We know that many terrorists captured in Iraq have told American interrogators that one of the reasons they decided to join the violent jihadist war against America was what they saw on Al-Qaeda videos of abuse of detainees at Abu Ghraib," [Sens. Lindsey Graham, R-South Carolina, and Joe Lieberman, I-Connecticut, wrote in a March 7th letter to the President.] ""Releasing these old photographs of detainee treatment now will provide new fodder to Al-Qaeda's propaganda and recruitment operations, undercut the progress you have made in our international relations, and endanger America's military and diplomatic personnel throughout the world."

Andrew McCarthy, writing on the Web site of the National Review, issued a harsh warning Tuesday: "American soldiers, American civilians, and other innocent people are going to die because Pres. Barack Obama wants to release photographs of prisoner abuse."

Barack Obama, the pragmatic moderate. I approve.

Like the new ad in my sidebar?

"Who is this woman you’re sleeping with?" "I’m his wife." "That’s no good here."

Mildred Loving has died at the age of 68. It seems odd that she was only 68. Loving v. Virginia — the case in which the Supreme Court struck down a law that banned interracial marriages — ought to have been decided a long, long time ago. But it was not.

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here.”...

After Mr. Loving spent a night in jail and his wife several more, the couple pleaded guilty to violating the Virginia law, the Racial Integrity Act. Under a plea bargain, their one-year prison sentences were suspended on the condition that they leave Virginia and not return together or at the same time for 25 years.

Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that “as long as you live you will be known as a felon.”

They paid court fees of $36.29 each, moved to Washington and had three children. They returned home occasionally, never together. But times were tough financially, and the Lovings missed family, friends and their easy country lifestyle in the rolling Virginia hills.

By 1963, Mrs. Loving could stand the ostracism no longer. Inspired by the civil rights movement and its march on Washington, she wrote Attorney General Robert F. Kennedy and asked for help. He wrote her back, and referred her to the American Civil Liberties Union.

The A.C.L.U. took the case. Its lawyers, Bernard S. Cohen and Philip J. Hirschkop, faced an immediate problem: the Lovings had pleaded guilty and had no right to appeal. So they asked Judge Bazile to set aside his original verdict. When he refused, they appealed. The Virginia Supreme Court of Appeals upheld the lower court, and the case went to the United States Supreme Court.

Mr. Cohen recounted telling Mr. Loving about various legal theories applying to the case. Mr. Loving replied, “Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in Virginia.”

Breasts are not genitalia, and drivers don't gawk at the word "love" — a First Amendment problem.

Remember Ed (Gonzo) Stross, the artist who painted a Michelangelo-style Eve on an outdoor mural and got sentenced to 30 days in jail for depicting Eve's bare breasts? With the help of the ACLU, he won with a First Amendment argument.

I've read the opinion in Lexis, and I see the court — an intermediate appellate court in Michigan — agrees with me that the breasts Stross painted didn't violate the restrictions in the city's variance, because breasts are not "genitalia," but that he did transgress by painting the word "love." Nevertheless, the court held that the restriction on lettering was too broad in relation to the city's interest in not distracting drivers. So the breasts might distract you, but the city failed to proscribe them, and the word "love" — well, wouldn't it be funny if drivers collided as they rubbernecked to look at "love"?

How can paper ballots violate constitutional rights?

I saw on Instapundit — through to Slashdot — that the ACLU was suing a county for moving from touchscreen machines to paper ballots, and I couldn't even think of a bad argument. Slashdot describes the argument this way:

[T]he system chosen tabulates all votes at a central location. This means that voters don't get notified if their ballot contains errors, and thus they have no chance to correct it.

What? I still don't get it.

More here:

The ACLU alleges that the optical-scan system and centralized vote tabulation would not give voters notice of ballot errors — such as voting for two candidates for one office.

Opponents of the system say scanning should be done immediately at the precinct level to alert voters to such errors and allow them to correct invalid ballots.

So the constitutional violation is that the paper doesn't prevent you from mismarking it? If you're supposed to check one box and you check two, the paper doesn't call you a fool?

IN THE COMMENTS: Rastajenk writes:

I am a precinct captain in Ohio...

The system used in our county places scanners at each precinct; the voter marks his paper ballot and slips it into the scanner himself. If it is marked properly, the voter sees the ballot counter increase by one...he knows his ballot has been counted, right there on the spot.

If he doesn't mark it correctly...if he marks three school board members when he should have voted only two...or if he leaves blank an issue where he had no opinion...or if he doesn't vote at all for an uncontested position...any of these kinds of situations, the scanner would beep and produce a message saying where the error occurred, and give the voter a chance to repair the error, or accept it as is.

It's a very simple safeguard to address the whole undervote/overvote issue that Florida 2000 introduced to the world. If a person needs a new ballot, there are very simple procedures for giving him one and voiding the original.

What the ACLU is doing is promoting the system used in our county over the system proposed in Cuyahoga, wherein all the paper ballots are collected and sent to a central counting location. Any number of shenanigans can occur there that cannot occur in our situation. For once in my life, I am in the ACLU's corner on this one.

Ohio Sec of State Brunner issued a report last month recommending all counting be done in central locations. Brunner is a Dem; connect the dots.

Another feature of our precinct-counted system is that at the end of the day, I produce and post at that location a report of our activity: how many votes each candidate or issue received in our precinct. I can compare that report to official reports on the county's website and verify that they are the same; each precinct official can do the same for his precinct. At no point can the numbers suddenly change or not add up correctly using this system. Accountability starts at the bottom, not at some closed-door top level. This is what the ACLU is against. Forget the invectives about stupid voters; support them on this as I have.

I'm persuaded that the scanners are better, but I still don't see a constitutional argument.

ADDED: Here's how the complaint puts it:

The dual system of voting created by Defendants has resulted in the following inequity: voters living in election jurisdictions using voting systems without error notification... are significantly less likely to have their intended votes counted than voters who live in election jurisdictions that use voting systems with error notification....

This seems to be an attempt to use the Equal Protection argument from Bush v. Gore:

Equal protection applies... to the manner of [the exercise of the right to vote]. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964)....

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

Another debate? Let's watch.

Things are getting exciting these last few days. I'm up for another debate — or forum (whatever). Giuliani looks happy. Thompson grumpy. Huckabee piercing. Romney dashing. McCain — excited and happy as all get-out.

UPDATE #1: I'm a little distracted by these new polls on the Democratic side. CNN has Obama at 39% in New Hampshire, with Clinton a 29%. USA Today has Obama at 41% and Clinton at 28%. Clinton is crashing! What is going on? My theory: I think people want to fall for Obama and want to be free of Hillary Clinton. Iowa has given them permission to do what they already wanted to do. Okay, now, let's concentrate on these Republicans.

UPDATE #2: "You're going to get rid of death?" Fred Thompson says the funniest thing I've ever heard in a debate (after Huckabee says "We oughta get rid of taxes on dividends, capital gains... and death"). Huckabee has the wit to say "I'd like to get rid of death," and Fred is all "Put 'er there," and the 2 men shake hands. Huckabee adds: "In my previous profession, I got rid of death..." [CORRECTION: That last quote should be "In my previous profession, I dealt with getting rid of death..."]

UPDATE #3: Sorry for the lack of updates. I listened — and looked a little. (I was editing photographs, contemplating how much to clarify the fog that filled the 100+ photographs I took on my little walk today.) I thought all 5 men did well, mostly repeating things I've heard before. I'll just cite 2 things that stood out for me (which I'll supplement later with quotes from the transcript): 1. I liked what Rudy Giuliani said about how he dealt with poverty in New York City. 2. I liked when Mitt Romney objected to Mike Huckabee's anti-corporate rhetoric.

UPDATE #4: After the debate, we get Frank Luntz with his focus group, and these people are very favorable to Romney and highly critical of Huckabee, especially his response to the first question. This is strong enough to make me go back and review that part of the debate. Ah, this was when he was asked to respond to Romney's criticism about his raising taxes in Arkansas. Romney, who's sitting right next to him, takes over cross-examining him about the facts (and bragging about the surpluses he produced in his state): "Did you raise taxes in your state by half a billion dollars?" Answer: "We raised jobs. We built our roads." Romney breaks in: "You know, that's political-speak." Huckabee just changes the subject and asks if Romney opposed the 2002 tax cuts. Romney gives a clear no. Romney repeats the question that he's refused to answer "3 times." Huckabee talks about a court order relating to education and attempts, again, to turn it back on Romney: "Maybe you don't have to obey the court in Massachusetts." Kids are important, education is important, blah blah blah. And Chris Wallace breaks in and move the discussion over to Giuliani. Luntz goes on to ask the focus group if they were affected by what happened in Iowa, and this becomes another occasion to trash Huckabee: You might be able to get votes with religion in Iowa, but that's not the way we do things here. Finally, the group says it thinks Obama will be the Democratic nominee and that Mitt Romney can beat him. Frankly, I agree. I think Obama will be the Democratic nominee, and I don't know if the Republicans can win this go-round. (I think we need the presidency needs to shift sides periodically.) But if I had to bet on one Republican to beat the Democrat, I'd bet on Romney.

UPDATE #5: Here's the video of that Frank Luntz focus group:



UPDATE #6: Here are the two things I said I'd add from the transcript. First, Giuliani on poverty:

I took over a city that had 1.1 million people on welfare. I left behind a city with 670,000 fewer people on welfare. I took over a city that had 10.5 percent unemployment. I left behind a city with less than five percent unemployment and I instituted a work fair [sic] program. As Republicans, we don’t do well, including me, all of us. We do not explain to the poor that our programs, our policies are the ladders out of poverty, that they are being denied, by a lot of the Democratic programs, a good job, a good education, the work ethic. So what I did with welfare immediately upon coming into office is I tied welfare to work for anybody who can work. It was called work fair [sic]. It was very controversial. People were very angry at me. The ACLU, I think, sued me, I don’t remember. They sued me a lot. I can’t remember all the times they sued me.

But I stood up and we fought the battle and we ended up with 670,000 fewer people on welfare, hundreds of thousands of people on welfare working, by allowing the basic principles that work in America of work, good education operate in the lives of poor people. And as Republicans, we need to go into the neighborhoods where there’s poverty and explain how our programs work. I would go into the neighborhoods where I was being castigated for work fair and I would say to them, “I’m doing work fair [sic] because I love you more. I care about you more. I care about you more than just being a statistic. I believe that if I can get you a job, I will keep you out of poverty and I will keep you with the dignity to be able to take care of your family.”

(Can somebody tell Fox it's "workfare," not "work fair"?)

Second, Mitt Romney on corporations:

You’re not going to help the wage earner in America by attacking the wage payer in America. It’s an old saying. The truth of the matter is, it really is kind of offensive, I think, when I watch our Democrats, or anybody else, for that matter, attacking corporations that are creating jobs. I’ve spent 30 years in the private sector. I spent my time learning how to build a small business. I built a small business and grew it. I helped go back and turn around a company that was in trouble. I’m proud of the fact that some of the companies we invested in created a lot of jobs. I had some failures, too. I know what it’s like to have to make a tough decision. I’ve seen businesses go under. But I can tell you, I’ve been in the economy, I’ve been there in the real world, and we need a president who knows how the economy works, knows why jobs come and go, understands what the competition from China really means and how to stand up to it. We also need a president who knows how to shrink the federal government, and I know how to take out people that aren’t needed and how to take out programs that aren’t needed, and we need some of that in Washington.

Christmas decorations, the Freedom from Religion Foundation, and a radio alert.

I'll be on WORT radio today at noon Central Time, talking about Christmas decorations and the Constitution with Annie Laurie Gaylor of the Freedom from Religion Foundation. (She's a co-president of the organization, which is based in Madison.)

You have to be in a 50 mile radius of Madison to listen on the radio (at 89.9 FM), but you can listen on line here. We'll be in the studio and taking questions by phone. At (608)-256-2001 or (toll free) at (866) 899-WORT. After the show, go to the archive to listen.

If you want to bone up on the law beforehand, read Lynch v. Donnelly — the case where a creche was held constitutional — and County of Allegheny v. ACLU — the case where the creche was not constitutional (but a Christmas + menorah was). For extra credit, read Capitol Square Review Bd. v. Pinette — which held that Ohio violated the KKK's free speech rights by not letting it put up a cross on the statehouse square. There are also the two cases about Ten Commandments displays that were decided on the same day in 2005 Van Orden v. Perry (constitutional) and McCreary County v. ACLU (unconstitutional).

The Freedom from Religion Foundation just filed suit against mayor and City Council president of Green Bay, Wisconsin, over a creche outside city hall:

Mayor [Jim] Schmitt says Christmas is a nationally-recognized holiday, and city leaders have every right to adorn city hall with Christmas flair.

"I'm saddened by what has all transpired here. I'm saddened by the lawsuit, by some of the divisiveness it's caused, but it's Christmas and I'm going to celebrate it," Schmitt said....

"They're sending a message of endorsement of christianity over other religions and they're sending a message of exclusion to everybody else," said Annie Laurie Gaylor....

"In my opinion, it was a very expensive for taxpayers publicity stunt by a right-wing politician," Gaylor said.

Expensive? The expense is the litigation.

Here's an opinion piece by Dan Barker (who is the foundation's other co-president):

[S]ome of us do find the anti-humanistic nativity scene offensive since it assumes we are all sinners in need of salvation and slaves who need to humbly bow to a dictator — in a country that is supposedly proudly rebellious, having fought a Revolutionary War to expel the king, sovereign and lord.

And here's my 2004 post about the Christmas decorations in the Wisconsin Capitol building, including a photograph of a sign the state allowed the Freedom from Religion Foundation to display, which tells us "Religion is but myth and superstition that hardens the heart and enslaves the mind."

ADDED: Here's some background on the Green Bay creche. Don't miss the time line:

Wednesday, Dec. 12 – Schmitt is bombarded with e-mails, phone calls and criticism and praise for the display. He says the city likely will have to honor all requests for display space until the City Council can draw up guidelines and limits.

Thursday, Dec. 13 – City receives six formal requests to display symbols on the roof.

Friday, Dec. 15 – Practitioners of Wicca, a religion associated with witchcraft, drop off a wreath containing a pentacle, a five-pointed star used as a Wiccan symbol for the elements of nature. The wreath is installed on the entrance roof.

Saturday, Dec. 16 – City receives a request to display a plain aluminum pole, said to be a symbol of Festivus, a religion promoted by the TV show "Seinfeld."

Monday, shortly after midnight – Police receive a report someone removed the Wiccan display. Schmitt announces no displays other than the nativity scene will go on the roof until the City Council meets and decides a policy....

Ironically, trying to make the public recognition of Christmas more serious ends up making it more of a joke. There is a symbiotic relationship between litigious atheists and pandering politicians. They serve each other's interests, but does anyone else benefit?

ADDED: I corrected mischaracterization of the creche in Lynch.

UPDATE: Gaylor ended up phoning in and only making herself available for 5 minutes. She had her points ready and reeled them out on cue. But when she took at gratuitous swipe at George Bush for closing the federal government on the day before Christmas, and I disrupted the presentation by asking if she thought the Christmas holiday violated the Establishment Clause. She refused to answer and rushed off the phone. I got the impression that she was unnerved at the idea of going off script and exposing her ideas to scrutiny. I noticed that she continually asserted that the Establishment Clause law is very clear — which is laughably wrong and therefore best to done as a monologue or when — excuse the expression — preaching to the choir.

About that teacher arrested for a blog comment.

BUMPED: Good news: "Washington County District Attorney Todd Martens says he believes the comment left by James Buss was disgusting but is protected under the First Amendment."

ORIGINAL POST:

Here's something more on the Wisconsin teacher — James Buss — who was arrested for a blog comment that some read as recommending that teachers be shot. We discussed this a few days ago here.

In the new story, we see the ACLU and UW polisci professor Donald Downs urging that no charges be filed:

Washington County District Attorney Todd Martens is considering whether to charge Buss with disorderly conduct and unlawful use of computerized communication systems.

"If you look at all the factors in this case, it's pretty clear it would be a mistake to charge," said Larry Dupuis, legal director of The American Civil Liberties Union of Wisconsin. "At worst, it was somebody expressing admiration for somebody who did something reprehensible. But the more reasonable explanation is this is somebody who is trying to mock the conservative view of teacher salaries."

Police Capt. Toby Netko defended the arrest. He said the teacher who complained was disturbed by the reference to "one shot at a time" and other educators agreed it was a threat.

"What happens when you say bomb in an airport? That's free speech, isn't it?" he said. "And people are taken into custody for that all the time."

Donald Downs, a University of Wisconsin-Madison professor and expert in free speech, said that "all sorts of unsavory, controversial speech" are protected by the First Amendment.

"It has to be intended to incite violence" to be illegal, Downs said. "If it's tongue-in-cheek, there's virtually no way they can claim that."

Downs added, however, that the school district might have legal grounds to discipline Buss. The teacher has been placed on paid administrative leave while his school district considers what action to take.

Buss tried for sarcasm, but not everyone gets a joke. Oddly enough, he himself was in the category of persons who are threatened, if it's a threat. Why wasn't he more worried about inspiring a troubled student to attack teachers? Probably, like many writers, he assumed people would understand his writing. But not even the other teachers understood it. That's all quite unfortunate.

Now, let me be clear about one thing — sledgehammer clear — so that no one can misread this: The man should not be charged with a crime.

And let no one think I will be coming 'round with a real sledgehammer.

UPDATE: As indicated above, the decision was made not to prosecute. Here, Buss explains himself:

Buss told police he "just wanted to see if the hate towards teachers from other posters was so strong that other posters would endorse my facetious post," the report says....

Buss, who in a statement described himself as politically "moderate," told police he misspelled words and used incorrect grammar and punctuation to enhance his characterization of "Observer" as "a right-wing zealot."

Buss told police that he did not intend his post, which he called "mischievous," as a threat, but he understood how someone could perceive it as "advocating a Columbine-like attack on schools." Buss said he posted comments on the Web site under two other names, "Jeff" and "Ditto."

"You would have to be a puritan out of the 16th Century with a magnifying glass in order to spot Eve’s nipples."

So says the ACLU lawyer for the artist Ed (Gonzo) Stross:

Stross is fighting a 30-day jail sentence for violating a city sign ordinance for exposing Eve’s breast and painting the word "Love" in his variation of Michelangelo’s "Creation of Man" on the outside wall of his art studio....

In 1997, Stross got permission from the city to paint the 1,100-square-foot mural on an outside wall of Gonzo Fine Arts Studio at Gratiot and Utica roads, but with conditions: no letters, no genitalia and regular maintenance of the artwork. The city contends that Eve’s bare breast was prohibited under the agreement.

So what do you think is the stronger argument: the First Amendment protects his free expression or he hasn't violated the condition? And what is the relevance of Michelangelo? Or the size of Eve's nipple?

Assuming the condition uses the word "genitalia," I think the strongest argument is that he hasn't violated the condition because breasts are not genitalia. Genitalia are the reproductive organs, and breasts don't contribute to reproduction. You could have your breasts completely removed surgically and still reproduce.

ADDED: He's obviously violated the "no letters" provision with the word "Love," so the only useful argument is that he has a free expression right to paint the giant mural in disregard of the conditions. Don't be distracted by Eve's nipples. I think he's got to lose this one, but what are 30 days in jail for an artist when you get publicity like this?

"We believe the sting operation used to apprehend Mr. Craig was unconstitutional."

"The statute the government is relying upon makes it a crime to use certain offensive words.... To be able to solicit sex in private, in public spaces, for instance, is constitutionally protected speech."

The ACLU backs Larry Craig.

"Did Scott Thomas Beauchamp lie under oath to U.S. Army investigators, or did he lie to his editors at the New Republic?"

Asks Michael Goldfarb:

THE WEEKLY STANDARD has learned from a military source close to the investigation that Pvt. Scott Thomas Beauchamp--author of the much-disputed "Shock Troops" article in the New Republic's July 23 issue as well as two previous "Baghdad Diarist" columns--signed a sworn statement admitting that all three articles he published in the New Republic were exaggerations and falsehoods--fabrications containing only "a smidgen of truth," in the words of our source.

Separately, we received this statement from Major Steven F. Lamb, the deputy Public Affairs Officer for Multi National Division-Baghdad:

An investigation has been completed and the allegations made by PVT Beauchamp were found to be false. His platoon and company were interviewed and no one could substantiate the claims.

According to the military source, Beauchamp's recantation was volunteered on the first day of the military's investigation. So as Beauchamp was in Iraq signing an affidavit denying the truth of his stories, the New Republic was publishing a statement from him on its website on July 26, in which Beauchamp said, "I'm willing to stand by the entirety of my articles for the New Republic using my real name."

Amazing, but not really amazing. It's easy to see how things like this happen. Beauchamp is a gifted writer, with a point of view and raw material. If the Weekly Standard's report is true, it means that Beauchamp -- who could have published a novel, perhaps an excellent one -- is also a man who subverted his own work by calling it true and making it a lie -- not fiction, but a lie. The motivations are not hard to fathom. He gained access to The New Republic -- which gave him stature and an instant readership.

It's also easy to see how The New Republic succumbed. The writing was sharp, the man was on the scene where he could witness important events, and he was speaking in a voice they wanted to project. Why weren't they more afraid of being duped? Was it because he was saying what they wanted to be true, giving weight to their arguments against the war? (Here's the lead story over there right now.) Maybe they thought they were protected from the suicidal blunder of getting taken in by another Stephen Glass because they were publishing the writing not as a news article but as a "diary."

Let's look back at Stephen Glass:

“My life was one very long process of lying and lying again, to figure out how to cover those other lies,” says Glass....

Glass' main job was at The New Republic, a distinguished magazine with a 90-year history of publishing political and social commentary. It also has a reputation for discovering young, talented writers like Glass.

He was editor of his college newspaper at the University of Pennsylvania and joined The New Republic as an editorial assistant in 1995. Not long afterward he was assigned to write a story on an arcane piece of Washington legislation. He thought it needed sprucing up and a serial liar was born.

“I remember thinking, ‘If I just had the exact quote that I wanted to make it work, it would be perfect.’ And I wrote something on my computer, and then I looked at it, and I let it stand. And then it ran in the magazine and I saw it. And I said to myself what I said every time these stories ran, ‘You must stop. You must stop.’ But I didn't.”

“I loved the electricity of people liking my stories. I loved going to story conference meetings and telling people what my story was going to be, and seeing the room excited. I wanted every story to be a home run.”...

“Everything around him turned out to be incredibly vivid or zany or in some other way memorable,” says [TNR literary editor Leon] Wieselteir. “And at the meetings, we used to wait for Steve's turn, so that he could report on his next caper. We got really suckered.”...

“I would tell a story, and there would be fact A, which maybe was true. And then there would be fact B, which was sort of partially true and partially fabricated. And there would be fact C which was more fabricated and almost not true,” says Glass.

“And there would be fact D, which was a complete whopper. And totally not true. And so people would be with me on these stories through fact A and through fact B. And so they would believe me to C. And then at D they were still believing me through the story.”

Read that whole article: Glass went to some trouble to beat the fact checkers. Here's some analysis in The Columbia Journalism Review about how TNR fell for Glass:

[T]he truth is Glass gamed the system, and brilliantly. He'd often submit stories late to the checkers so they were pressed for time. When they questioned his material, [TNR editor Charles] Lane says, Glass would provide forged faxes on fake letterheads of phony organizations, as well as fictitious notes, even voice mail or actual calls from people pretending to be sources....

Shouldn't all the unnamed sources, obscure organizations, and wild scenes viewed only by the writer have been another tip-off? "I've searched my soul and asked, "Why didn't my bullshit meter go off?" says Lane. "But it's hilarious. By the time I got there so many wild stories had run and seemingly stood up, I trusted him."

Some journalists see in Glass the dark side of a new magazine journalism that puts a premium on sensationalism and style....

But those who knew Glass insist that his story is more about one rotten apple. After all, many writers are under pressure and don't make stuff up....

If there is any value to the saga of what may be the biggest hoax in modern American journalistic history, it's that it has many journalists asking questions about their checking systems.

Asking questions... and then blowing it, all over again. You'd think, after Glass, TNR would be exceedingly careful when confronted with vivid writing with great quotes and anecdotes. Yet somehow, it seems to have gotten less careful. There's this notion that war makes the soldiers crazy. Journalists love it. Beauchamp reinforced it. It appears that war makes journalists crazy.

There's plenty of commentary following on the Goldfarb piece.

Like me, Mark Steyn thinks of Glass: "[TNR] made the same mistakes all over again - falling for pat cinematic vividness, pseudo-novelistic dialogue, all designed to confirm prejudices so ingrained the editors didn't even recognize they were being pandered to. But this time they did it in war, which is worse."

Roger L. Simon says: "Fact-checking, in my experience, is a big lie. It barely exists in the mainstream media."

Cathy Young is skeptical of the notion that TNR fell for Beauchamp because of his antagonism to the war:

Is I recall, Beauchamp was recommended to TNR by his fiancee Elspeth Reeve, a staffer at the magazine. It's not as if the magazine went looking for a soldier to write "Diarist" pieces. I do think that, to a large extent, Beauchamp was given a platform because he was someone the TNR editors saw as "one of us": a guy with a background in creative writing and journalism, as well as a Howard Dean supporter. I think it's also fair to say that the first Diarist piece, while not negative toward American troops in Iraq, showed them as mired in bleak and awful futility: at the end, Beauchamp reflects on his feelings of helplessness at his inability to protect the boy. So in that sense, it certainly fits into the current world-view at TNR. On the other hand, it could also be read as implying that if we withdraw from Iraq, we will leave the population in the hands of people who cut out children's tongues to make a point.

Hugh Hewitt calls TNR editor Frank Foer "the Dan Rather of the political magazine world, a laughing stock caught up in trying to publicly maintain an obvious lie as truth." He wants a head to roll.

On the left, one theory has it that the army coerced a false confession out of Beauchamp.

And John Cole somehow winds up "now, more than ever, convinced that a certain segment of the Republican party and the right wing blogosphere is certifiably insane." Okaaaay...

Responding on the right is Uncle Jimbo:

So as it turns out US troops are not heartless barbarians and that far too many people on the left can't accept that. Well from one of those barbarians who just happens to have more humanitarian and disaster assistance work under his belt than any of the smirking elite sitting around the table at Franklin "Which way is the door?" Foer's editorial meetings, F**k you very much! You finished what Glass started, and may this serve as a lesson to the many other supposed honest media sources, your agenda is pitifully obvious and your tactics so childishly unsophisticated that I almost feel guilty smacking you around. But I will, and I hope it stings.

Enough for now. Suffice it to say there's a big fight on.

UPDATE: TNR responds:

We've talked to military personnel directly involved in the events that Scott Thomas Beauchamp described, and they corroborated his account as detailed in our statement. When we called Army spokesman Major Steven F. Lamb and asked about an anonymously sourced allegation that Beauchamp had recanted his articles in a sworn statement, he told us, "I have no knowledge of that." He added, "If someone is speaking anonymously [to The Weekly Standard], they are on their own." When we pressed Lamb for details on the Army investigation, he told us, "We don't go into the details of how we conduct our investigations."

Goldfarb responds to that:

(1) They neglected to report that the Army has concluded its investigation and found Beauchamp's stories to be false. As Major Lamb, the very officer they quote, has said in an authorized statement: "An investigation has been completed and the allegations made by PVT Beauchamp were found to be false. His platoon and company were interviewed and no one could substantiate the claims."

(2) Does the failure of the New Republic to report the Army's conclusions mean that the editors believe the Army investigators are wrong about Beauchamp?

(3) We have full confidence in our reporting that Pvt Beauchamp recanted under oath in the course of the investigation. Is the New Republic claiming that Pvt Beauchamp made no such admission to Army investigators? Is Beauchamp?