With David Souter, 69, prepared to step down from the Supreme Court at the end of the current session, President Obama was tasked with finding a replacement justice. And while there were a great many compelling candidates like Alex Kozinski or John E. Jones III, who though both right of center, have far more reasoned judicial philosophies, as well as superior records with respect to previous verdicts. And especially since Souter was appointed by George Bush Sr. during his time in power, this seeming shift right would just be a historical correction from the president who so often claims to be interested in cooperation across the political spectrum (though his actions thus far suggest it is merely hollow rhetoric). Instead, Obama has chosen Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals, distinguished more by her Latina heritage than by her record.
Undoubtedly, Sotomayor looks impressive at first glance, in that she graduated at the top of her class at Princeton University, and then when on to graduate from Yale Law, where she was editor of the Yale Law Review. But that’s about where her merits as a potential Supreme Court justice end. Cases such as Ricci v. DeStefano, Pappas v. Giuliani, and Doninger v. Niehoff make evident that her rulings either willfully disregard the Constitution, or hinge on indefensible misinterpretations of it.
Let us begin with Ricci v DeStefano, the case most likely to trigger controversy as her nomination is considered (by the Republicans that is, since the Democratic party and most of the media seems to have already okayed her). In it, the city of New Haven, Connecticut was bound by union contracts with respect to the fire department, mandating that exams were to be used as the determinant for promotions. Specifically, the individual chosen for promotion had to receive one of the top three scores on the exam. Black candidates however performed inadequately, with a failure rate twice that of their white cohorts, meaning that none were among those first eligible for promotion after this new advancement exam was rolled out in 2003. This resulted in the city’s independent exam review board questioning whether it was a racially bias exam that could not be certified as valid in determining who would receive promotion. A competing test development company stated when asked that he believed the exam was not so problematic as to be illegal or outright invalid, and veteran firefighters noting that the exam was rather similar to what they had taken in the past. So, logically speaking, the exam ought to have been certified, after which the promotions would be issued. However, the review board was split 2-2, leaving the exams uncertified. A group of Caucasian and Hispanic firefighters who had scored well enough to earn the promotions in question thus opted to sue, claiming that New Haven’s actions violated Title VII and the Equal Protection Clause. Though she did not author an opinion in this case, we must recall that when first tasked with rendering a verdict, Sotomayor voted to uphold the District Court ruling, which sided with the city against the hard-working fire fighters on the basis of their skin color.
Pappas v. Giuliani, where her involvement is quite a bit more clear, is perhaps even more disturbing. That case deals with Thomas Pappas, a New York City police officer who was fired from his job because, outside of the office, on his own time and with his own money, he mailed hate material to an assortment of organizations that had first mailed his solicitation requests. Also important to recall is that he did so anonymously, meaning that there was an intent to avoid creating the sort of negative public image that might inspire questions about his biases with regard to police work. Further, he asserted, and this cannot be disproved, that his actions were a form of political protest. Thus, being that the material he sent out was not unlawful in the first place, that it was purposeful political speech, and that he did so without involving his employer in any way, one should think that the Court would side with Pappas, who even if genuinely racist and of poor character, has done nothing that ought to have rendered his at odds with law, or resulted in the termination of his employment in a country where there are substantial limits on the grounds over which an employee may be terminated. But Sotomayor and her liberal ilk disagreed, ruling against Pappas at the expense of the political expression rights.
Of course, her utter contempt for the First Amendment and its promises of free speech rights does not end there, as shown by Doninger v. Niehoff. I’ll spare you the overwhelmingly long version of this story, instead directing you to an article on the matter by Mark Kernes if you are so inclined. Put briefly, this was a case of Avery Doninger, a student government member at Lewis Mills High School, using some off-color language on her livejournal to describe her feelings about certain school administrators that were making every effort to impede or cancel a “Jamfest” event that the students had (with prior school authorization) been planning for quite some time. While this was going on, Doninger was up for re-election, seeking the position of Senior Class Secretary, having previously held the equivalent position for her class junior year. Having failed to display the “good citizenship” expected of candidates running for positions in student government (by using the aforementioned off-color language on her livejournal), Doninger was denied administrative endorsement, ensuring that she would be left off of the ballot, and all but guaranteeing that she would lose the election. But a funny thing happened. The students, who were impressed by her past performance and her willingness to advocate on their behalf, voted overwhelmingly for her. In fact, she won a substantial 2/3rds of the vote. But the school, so concerned about a student using the word “douchebag” on a livejournal entry that they felt the need to attempt (unsuccessfully) to silence Doninger, proceeded to disregard the results of the election and give the position to the second place candidate. And Sotomayor agreed with their actions. In the unanimous court opinion, of which she was a signing justice, Tinker’s principal that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” was acknowledged, but then rendered irrelevant by what followed. Instead, she regarded the school’s mission (something which, I might add, had no constitutional basis to exist) of imparting a “proper respect for authority” as being more critical than allowing for dissent. That the somewhat crude language was used outside of the school, and in the context of political dissent over the decisions of those in power at the school, was deemed inconsequential. Not only then was free speech dealt a serious blow, but the verdict seems to suggest that dissent is improper and should be disallowed if it is at odds with respecting the authority of people who have done little if anything to earn said respect.
And of course in her past there are a number of other disturbing verdicts, though none as important as the above. Litmus test for appointments or not, a judge who consistently makes irrational, freedom-limiting decisions should, on that basis alone, be rejected as a potential candidate for the forthcoming vacancy. But, even were one sympathetic to her politics, it is not otherwise clear that she belongs. Disregarding the absurd controversy surrounding her comment that judges make policy from the bench (which is a provable fact, and thus does not reflect something meriting further review by those of us opposed to her nomination), there are questions being raised about her fitness for the position. Famous legal scholar Jonathan Turley said of her nomination, “My main concern is the lack of intellectual depth in her past opinions. I have read about 30 of the opinions and they do not support the view that she is a natural pick for the Court. She is without question a historic pick — like Thurgood Marshall. However, Marshall was not a lasting intellectual influence on the Court.” And his point is well taken. Having the right heritage and an atypical success story does not render qualified. But if asked, Sotomayor seems to feel strongly that such details do make a difference, for speaking at UC Berkeley she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” That of course is a reflection of the “empathy” that this token candidate is expected to bring with her. That’ll mean a great win for identity politics, and an even greater loss for the Constitution and American individualism.
What Others Are Saying
Bench Memos: Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written. She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.
Cato @ Liberty: In nominating Second Circuit Judge Sonia Sotomayor to fill the seat of retiring Supreme Court Justice David Souter, President Obama chose the most radical of all the frequently mentioned candidates before him.
Crunchy Con: Given that we were certain to get a liberal justice out of Obama, I suppose one has to take comfort in knowing that Obama made a quota pick too, and did not choose a liberal justice who can match intellects with Roberts and Scalia.
JammieWearingFool: Great News: Obama Picks Radical Hack for Supreme Court.
Libertarian Party (USA): By nominating Sonia Sotomayor, Barack Obama has made it clear he prefers an activist for his personal causes over a rational interpreter of law.
Michelle Malkin: Identity politics triumphs.
Patterico: Sotomayor will almost certainly be confirmed, but she does appear to be one of the more leftist of the nominees that had been under consideration. Empathy über alles, dontcha know. Republicans should (emphasis on should) be able to have a field day showing how she’ll move the law to the left.
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Tuesday, the United States swore in a new president whose style is more remarkable than his substance. Obama won the office of the presidency not on a career of service or a refreshing gust of candor that is so atypical in politics, but through impressive showmanship and the ability to create false and undeserved hope. Unfortunately, this tendency for government to be composed of self-interested marketing gurus rather than bold and principled men is far from unusual. The world over, there are disturbingly few politicians deserving of praise. One such man, Geert Wilders, is now being targeted by his own government for the crime of intellectual honesty and for having a political platform inconsistent with that of the Euroleftists in charge.
Leader of Partij voor de Vrijheid, it would be entirely within reason to describe Mr. Wilders as the most important political figure in Holland, and one of the fastest rising stars of Western Europe. His party is more libertarian in character than anything else, with a platform that calls for tax cuts but also recognizes the importance of secular humanism. What makes the party particularly controversial though is the party’s view of Islam. It was summarized to a large degree in the famously controversial short film Fitna, for which Mr. Wilders has received a great many death threats. Essentially, they realize that Islam as a matter of basic theology and thus practice embraces violence. Individual Muslims may choose to reject this component of their faith, which he urges them to do. If they do, and further wish to assimilate in Dutch society, Mr. Wilders is content to let them be. But, as is glaringly apparent from Dutch news, the vast majority have opted not to become a part of the larger Dutch society or to adopt a moderate tone. There has been no large scale repudiation of violence in the Islamic world among the scripturally versed, only some vague rejections from their political front groups in the West. And so he continues to draw attention to this, and to the threat it poses to the long term survival of a free and democratic Europe.
It seems though that in Dutch politics, honesty is rarely the best policy. The day after we installed a spineless snake oil salesman in the highest office of the land, the courts of a country supposedly known for its liberal permissiveness has decided to try a man for the “insult of Islamic worshipers.” If this is to be par for the course, we may as well do away with democracy. When politicians who are loyal to the nation in whose government they serve run the risk of legal action not for slander, but for bruising the egos of the hypersensitive, no real debate can occur, and the entire political process becomes little more than a facade. That this should happen is alarming enough. That it is happening to one of the few competent politicians in the world for the crime of honesty should inspire the fury of all freedom-loving peoples.
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As anybody who reads industry publications can tell you, it is not a good time to be in the adult entertainment business. Since President George W. Bush assumed power, there has been a federal crusade against this supposedly immoral form of entertainment, aided in large part by his creation of the Obscenity Prosecution Task Force in 2005. These trials have done little other than disrupt businessmen from being productive contributors to the economy, and wasting taxpayer dollars. The initiation of this assault on a legal industry, and its continuation to this very day are both highly alarming.
Undoubtedly some shrug this off as inconsequential. After all, there are literally millions of pornographic websites on the internet, and thousands of new adult titles make it to DVD every year. Moreover, few people can name a single person or company that has been subject to this absurd attempt to regulate commerce and free expression by religious zealots and their leaders. The reason for this is that pornography is constitutionally protected, but “obscenity” is not, according the precedent-setting verdict of Miller v California (1973). Incapable as our government often proves to be, those in charge of the “obscenity” prosecution for the Department of Justice are smart enough to realize that they will not be able to convince the average jury that mainstream pornography should fall outside the scope of the First Amendment. Instead, they opt for easier targets, going primarily after fetish material. Because such content has a relatively small consumer base, and contains material that is both foreign and shocking to the average person, it is far easier to win a case against such content.
More unsettling is that there is nothing the industry can do to protect itself, short of shutting down completely. There is no list of things that are obscene, and standards are set by the community. As such, the government has license to target anybody they want, for any vague reason, in whatever venue is most sympathetic to their anti-pornography position. Consequently, a pornographer may make a title, and then several years after its release, be brought to court over it, being told that if his work is deemed obscene, he faces substantial time in jail. Each conviction carries with it a potential of five years in jail, with cases often involving enough counts to ensure they spend decades behind bars.
If we as a society value liberty, it is incumbent upon us to express out outrage over this campaign to quash freedom of expression and freedom of commerce, regardless of one’s own pornographic preferences. Whether you enjoy the material specifically under attack, or you’ve never seen so much as full frontal nudity is irrelevant. What matters is that the protection of minority rights and personal empowerment that is constitutionally ensured is not done away with because of the myopic views of a few faith-inspired extremists. At the end of the day, how we as a people respond to this siege on what our founding fathers fought for will determine whether we can begin to reclaim the freedom lost to two centuries of governmental overstretch, or whether we sacrifice what little we have left of it.
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Free expression is upheld better in the United States than in most of the world, but we still have a long way to go. For instance, the 1972 Supreme Court case Miller v. California essentially stated that obscenity was not a form of expression protected under the First Amendment, which remains legal precedent. And Congress has certainly made many efforts to outlaw the desecration of our nation’s flag. Still, the United States does not actually ban any piece of entertainment or art, as happens elsewhere, and tries to protect the rights of journalists. Canada, our northern neighbor that liberals love so much, seems to be having a big issue with this.
In February 2006, a man named Ezra Levant offended the delicate sensibilities of a few Muslims. In Western Standard, one of the leading conservative magazines in Canada, he published the now-notorious Muhammad cartoons. These cartoons so offended a group of anti-freedom citizens that complaints were filed, alleging that he had violated the civil rights of Canadian Muslims and that his publication was injurious to their image and would inspire hate crimes against them.
In a free society, the case would be immediately dismissed. The cartoons were a valid, albeit risqué, social commentary designed to provoke discussion about a topic often deemed taboo. But in Canada, Human Rights Commissions that operate outside of the courts have the power to convict and terrorize those accused of wrongdoing, taking cases that would be laughed at by judges in any court. Because of their legal standing, Levant was just forced to appear before them this past week. The final verdict has not yet come, but if the ruling is against Levant, he has threatened to take the issue as high as the Canadian Supreme Court.
Free expression is the issue here, as Levant brilliantly points out in his opening statement (which can be found on YouTube). The reason he published and the content he published do not matter. It was not defamatory, libelous, or fraudulent in any way. Rather, it was an expression of political and religious opinion. That is something that he, like every human being, is entitled to. The commissions were established as a means to prevent harassment and discrimination against minorities in Canada. They have since been perverted as tools of censorship, being used here to punish a thought crime. If ideas cannot be considered and discussed, how will society advance?
We in the United States would do well to learn from this Orwellian case, and stand up for our freedoms here. Government continues to encroach upon our liberty in an unforgivable fashion. All humans have basic rights that come with birth. We cannot let Human Rights Commissions or any other cause supersede these inherent rights. Let us avoid making the same mistakes that are being made in Canada.
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Update (12/13/08): According to AVN, “Hard2Find Videos owner Loren Jay Adams was sentenced today in U.S. District Court in Martinsburg, W. Va., to 33 months in prison for shipping obscene DVDs through the U.S. mail. U.S. District Chief Judge John Preston Bailey also ordered Adams to serve three years supervised release and to forfeit his Web site domain name and all copies of DVDs involved in the case.”
The Bill of Rights, being the natural Republican reaction to the increased Federalization of America that came with constitutional ratification, was designed to ensure freedom. Specifically, the centralization of government meant an increase in authority that increased the chances of tyrannical rule. Thus, this group of ten amendments was crafted to guarantee that even under an abusive and corrupt government, certain minimal rights would be protected, if for no other reason than to facilitate change through rebellion. Of course, to do so every 20 years, which Jefferson regarded as ideal is both impractical and highly disruptive to technological, educational, and economic progress. So, excluding the prospect of an armed revolt, the rights outlined therein were established as the absolute minimum to which citizens are entitled, regardless of how broadly the government may choose to abusively overextend its reach.
In American history, a few presidents have done a particularly noteworthy job of fighting to defend these essential liberties. Perhaps most noteworthy among them are Grover Cleveland and Calvin Coolidge. The former, a classical liberal, was the father of the short lived and all too often forgotten Bourbon Democrats. While fighting against patronage and corruption, they also stood against governmental imperialism, oppressive taxation, and market-limiting policies. In many regards, they were the Libertarians of their day. And following this political philosophy, Cleveland vetoed 584 bills in his two terms, surpassed only by the four term fascist FDR. His proclivity towards rejecting pork barrel bills is often regarded as the primary factor behind his 1888 defeat. Yet, once returned to power in 1892, he continued to oppose the sort of unconstitutional legislation that he always fought against. The example that stands out most prominently in my own mind is the response he gave when vetoing the 1887 Texas Seed Bill. With elections around the corner, he stood in support of justice and liberty in a way few others would have dared, declaring that “I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadily resisted, to the end that the lesson should be constantly enforced that, though the people support the Government, the Government should not support the people.” Sadly, he was the only Bourbon Democrats to win the office of the President.
It was not until the Amherst-educated former governor of Massachusetts, Calvin Coolidge, became president in 1923, following the death of then-president Warren G. Harding, the fit leadership resumed. Though not quite as veto-oriented than Cleveland, his less than two full terms resulted in his refusal to sign 50 bills. He fought against governmental discrimination, pointing out the injustice of specifically limiting Japanese immigrants among all foreigners seeking residence, and support the right of women to vote. His laissez-faire economic policies and reluctance to enter into foreign affairs that were not vital to the national interest helped to counter some of the damage done by the inadequate leaders elected after Cleveland. What marks his presidency as special, much like Cleveland’s, is that it was not about expanding government or overhauling programs that ought not exist in the first place. Instead, it was about attempting to reign in the growth of governmental reach in an era where broader federal involvement has mass appeal. This is something he personally acknowledged, stating that “perhaps one of the most important accomplishments of my administration has been minding my own business.”
Unfortunately, these men are rare exceptions. With the exception of Washington, and debatably Jefferson, none of the other leader of this nation ever stood up for liberty, constitutionalism, and governmental restraint. While many claimed otherwise when campaigning, history reveals that men on both side of the political aisle have failed in this regard. The specifics of their failure vary greatly over time, with issues ranging from economic tyranny through hyper-taxation, to Japanese internment, to limitations on the availability of abortion. At present though, the greatest affront to liberty is the ongoing assault on the First Amendment by those opposed to supposedly obscene and indecent material.
Obviously, censorship is not new, and efforts to limit the availability of certain material have existed in some capacity or another throughout all of American history. But much of it was at the local level, and thus arguably not protected by the Constitution, depending upon how broadly one sees states’ rights as being. Indeed, excluding the isolated and short lived Sedition Act of 1798, national censorship would not become a serious problem until the early 20th century. First among the major censorship issues was the Supreme Court case of Schenck v. United States in 1919. Anti-war Socialist Charles Schenck was criminally convicted of speaking out against the World War I draft, and appealed this decision, which was upheld by the Supreme Court, which claimed that insubordination was not protected. At the same time, the more alarming Frohwerk v. United States case took place, wherein a journalist was criminally convicted under the Espionage Act of 1917 for writing editorials against American involvement in foreign wars. Thankfully, such cases, which were rampant at the time, are no longer the chief First Amendment issue. Instead, what we now face is one that federally started with the Radio Act of 1927, which is indecency and obscenity.
In essence, the present concern is over whether or not both indecent and obscene material are protected by the First Amendment, and if so, to what extent they may be regulated. The prevailing Supreme Court opinion is quite clear, and seriously threatens liberty. It has long held that indecency is legal, but that its time and place may be limited. Thus, television programs that might be regarded as indecent, such as the now-deceased Showtime original Family Business, could legally be shown on network television, provided it was after 10 PM. And, on cable or premium television, such a show could air at any hour, be it 3 AM or 3 in the afternoon. The justification for this, which history and biology both find to be illegitimate, as covered in the excellent Marjorie Heins book Not In Front of the Children, is protection of youth. Obscenity law is also well established through a series of Supreme Court rulings, with the present conclusion that such material is legal to own, but illegal to create, sell, trade, exhibit, or send through the mail for persons of any age. There is not an established list of acts or content specifically obscene, as such a thing would likely be ruled unconstitutional. Instead, there is a three-pronged test that was established by the 1972 case Miller v. California. It ruled that for material to be obscene, “the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,” ” the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,” and “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” While four of the justices disagreed with case outcome, the ultimate conclusion established was that obscenity is illegal. In response to the verdict, the number of obscenity cases skyrocketed in subsequent years.
Throughout the 1990′s, such cases, though still existent, were less frequent than is presently the case. Since the 2000 election of George Bush, prosecution of obscenity has risen both at the state and national level. One highly noteworthy case was that of United States v. Extreme Associates, wherein the District Court judge ruled against the established Supreme Court position on obscenity. Unfortunately, a re-trial is ongoing, as it is not considered valid for a lower court to disregard the precedent of higher courts in cases where doing so would fundamentally alter the law. Two more alarming recent cases are those against Red Rose Stories and JM/Five Star. The former regarded a website devoid of still or moving images, and which contained nothing other than sexually explicit written stories. Membership required credit card payment to prevent youth access, and the total membership of the site was less than 30 people. Since the site owner has serious agoraphobia issues, and could not tolerate a lengthy legal battle, she was forced to plead guilty less than two weeks ago. Consequently, there is now precedent to declare mere written words obscene, a notion that hasn’t had legal support for many decades. In the JM/Five Star case, the government went after films whose emphasis was on ejaculation and oral sex footage. Having been found guilty of the “transportation of obscene material for sale or distribution” over the film “Gag Factor 18″, there are now serious questions over the safety of producing such mild and popular material.
Presently, there are multiple ongoing obscenity cases that deserve attention. At the state level, the Virginia case against After Hours Video, which will begin in August, is highly troubling. After police came into the store under cover and purchased many adult videos, the store owner is facing criminal charges. He stands accused of selling 12 obscene videos…none of which have ever previously be found to meet the legal standards of obscenity. So, the store had no reason not to stock the niche material that they anticipated would sell, yet is being subject to criminal prosecution on the chance that the material might possibly be found obscene. But there are two federal cases that should command greater attention, since their verdicts will likely carry more legal weight in the future.
First is the case against Loren Jay Adams, the owner of Hard2Find Videos. A long time collector of rare adult material, Adams used the internet to meet new enthusiasts with whom he could swap material. Soon, demand among adult entertainment enthusiasts who lacked video fit to trade compelled him to begin selling these tapes. Among his rarities were many beastiality tapes, for which he is now facing federal prosecution. It is worth noting that the act itself is legal in many states, and that video of it has never been declared illegal in any previous court case, or federal law. What makes this case especially alarming is that he already served prison time in 2002 for a state conviction over this material. In other words, he is facing repeated punishment for an old “crime” he has spend time in prison for having committed. His first court appearance for this renewed assault on his rights is set to take place on June 12.
Second, and ongoing, is the case of Max Hardcore. Previously, efforts to convict him on child pornography charges, based on the youthful appearance of the ADULT performers in some of his video titles failed, in part due to a timely Supreme Court verdict on the issue of virtual/non-real child images in pornography. This new obscenity case focuses on five titles from his massive catalogue of material, and has a total runtime 510 minutes in length. While his attorneys are doing an excellent job thus far in countering the illegal, evasive, and underhanded tactics of the prosecution, their efforts are being thwarted by the constitutionally illiterate Judge Susan C. Bucklew. She continues to ignore established procedure, including forcing the jury to watch in full all five videos submitted to the court. While a recent revelation to the court indicates the Mr. Little (aka Max Hardcore) did not mail the videos in question, but that it was Jaded Video that did, will hopefully aid him in avoiding jail, it does little to help the fight for free speech. If he is acquitted, it will be because of this technical detail, not because the material is found to be legal. Thus, no matter the outcome, there will be severe negative ramifications, whose impact will continue to be felt for years to come. The failure to further clarify the obscenity standards by way of this case will undoubtedly force many niche companies underground, as happened when the Extreme Associates case was first filed by Ashcroft.
Many find this to be a trivial issue, in light of concern over the economy (which is improving), the increasing scarcity of oil (due to governmental restraints on new drilling), and Iraq (whose cost is extremely burdensome). And to a point, such individuals are right. After all, man can quite easil live without access to a handful of specific pornography titles. However, it must be remembered that what defines the United States, or at least what ought to, is the legal protection of liberty and individual freedom. Continued assault on adult material does just the opposite, and helps to ruin one of the great things about this country. Caving into the pressure of the religious right, as federal and state governments appear content to do, is not only an unconstitutional union of church and state, but a hindrance to progress, tolerance, justice, and human rights. Even if you do not find yourself personally affected by this issue, it is important to remember that when liberty is curtailed, it often starts through attacks against easy targets, such as adult material. Failure to confront the assault on freedom only allows for greater reduction of it, until such a time as those rights you cherish are no longer safe. So please, in an election year, where we have the chance to impact freedom, write to your senators and representatives, and tell them you expect stronger defense of your constitutionally enshired legal rights.
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