From the November 4 edition of Fox News' The Real Story With Gretchen Carlson:
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A new report from the Heritage Foundation attacks the Employment Non-Discrimination Act (ENDA), mounting a perverse and fallacious defense of allowing businesses to discriminate against workers on the basis of sexual orientation and gender identity.
In advance of the Senate's expected historic vote on ENDA, Heritage Foundation fellow and "ex-gay" therapy-advocate Ryan T. Anderson published a report titled "ENDA Threatens Fundamental Civil Liberties." The report, which is the culmination of Heritage's recent attacks on ENDA in conservative media, rehashes some of the worst conservative arguments against the law, which would merely prohibit employers from harassing or discriminating against LGBT employees. Here are the seven worst arguments he uses to attack ENDA:
A central conservative argument against ENDA is that the law would create "special" rights and privileges for LGBT people. According to Anderson:
ENDA creates special privileges based on sexual orientation and gender identity. Specifically, it would make it illegal for organizations with 15 or more employees to "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity."
In reality, ENDA would merely extend the same employment protections that already exist under Title VII of the Civil Rights Act of 1964 - for race, sex, religion, age, and disability status - to include sexual orientation and gender identity. ENDA's text explicitly prohibits special privileges for LGBT employees, including "preferential treatment or quotas."
Lott, pictured left of Jordan Davis' mother, Lucia McBath.
Discredited gun researcher John Lott attacked the presence of the mothers of deceased African-American teenagers Trayvon Martin and Jordan Davis at a congressional hearing on Stand Your Ground, describing them as "props" used to make "the case that there was racial bias" in the controversial self-defense law.
On the October 30 edition of the National Rifle Association's news show Cam & Company, Lott said the two mothers "were there to go and try serve as props essentially for the case that there was racial bias in Stand Your Ground laws," before falsely claiming that the self-defense law had no relevance to either of their son's shooting deaths:
LOTT: Well I thought [the hearing] was somewhat surreal. Look, we had two very sympathetic witnesses that were there. Trayvon Martin's mom and another mother who had lost her son in a shooting, both of them were black, and they were there to go and try serve as props essentially for the case that there was racial bias in Stand Your Ground laws. As I say, it's very hard to say anything when you're having to deal with a mother who has lost her son, under any circumstances. I have five kids; I can't imagine what it would be like to deal with that situation.
The problem was, the reason why I was saying it was somewhat surreal is that neither of their cases really had anything to do with the debate over Stand Your Ground laws.
On October 29, Lott, along with Martin's mother Sybrina Fulton and Davis' mother Lucia McBath, testified before a Senate Judiciary Committee subcommittee on Stand Your Ground that was held to examine a number of issues surrounding the law, including whether the law made it more likely for homicides of minorities to be ruled "justifiable."
Conservative Washington Post columnist and Fox News contributor George Will cherry-picked outlier examples of campaign finance violations while ignoring legitimate concerns about the potential for big-money donors to corrupt elections and balloted measures .
In his October 30 column, Will attacks campaign finance reform and celebrates the Supreme Court's infamous Citizens United decision, which opened the floodgates for large donors to corrupt elections with outsized contributions. Will highlights a pair of lower-court cases where judges struck down regulations on political speech that affected seemingly small-time civic participation to downplay the danger of political corruption, conveniently overlooking how these decisions might make it easier for large corporations to obfuscate their own political participation:
Brick by brick, judges are dismantling the wall of separation that legislators have built between political activity and the First Amendment's protections of free speech and association. The latest examples, from Mississippi and Arizona, reflect the judiciary's proper engagement in defending citizens from the regulation of political speech, a.k.a. "campaign finance reform."
In 2011, a few like-minded friends and neighbors in Oxford, Miss., who had been meeting for a few years to discuss politics, decided to work together to support passage of an initiative amending Mississippi's Constitution. The amendment, restricting the power of the state and local governments to take private property by eminent domain, was provoked by the U.S. Supreme Court's 2005 Kelo ruling that governments could, without violating the Fifth Amendment ("nor shall private property be taken for public use, without just compensation"), take property for the "public use" of transferring it to persons who would pay more taxes to the government.
The Mississippi friends and neighbors wanted to pool their funds to purchase posters, fliers and local newspaper advertising. They discovered that if, as a group, they spent more than $200 to do these simple things, they would be required by the state's campaign finance law to register as a "political committee." And if, as individuals, any of them spent more than $200 supporting the initiative, they must report this political activity to the state.
Mississippi defines a political committee as any group of persons spending more than $200 to influence voters for or against candidates "or balloted measures." Supposedly, regulation of political activity is to prevent corruption of a candidate or the appearance thereof. How does one corrupt a "balloted measure"?
The answer to this question should be obvious, and even Will begrudgingly admits "there is some slight informational value in knowing where money supporting a voter initiative comes from." Although Will doesn't mention it, the judge in the Mississippi case clearly left the door open for future regulations of political speech, giving a nod to the possibility of improper influence with respect to ballot initiatives:
Significantly, the Court does not hold that Mississippi may not regulate individuals and groups attempting to influence constitutional ballot measures. Instead, the Court holds only that under the current regulatory scheme, which is convoluted and exacting, the requirements are too burdensome for the State's $200 threshold.
Nevertheless, Will goes on to call the Supreme Court's decision in Citizens United -- one that allowed a tsunami of corporate money to enter the election process -- an "excellent" one. But even Citizens United noted the corrupting danger of unchecked money in the political system, and transparency was explicitly recognized as the critical protection against such a problem.
National Rifle Association board member and conservative columnist Ted Nugent compared himself to civil rights icon Rosa Parks in a column for conspiracy website WND where he celebrated the right to free speech. The NRA and its representatives frequently compare their movement to the civil rights struggle, claiming that restrictions on guns are similar to the conditions of segregation or racial discrimination.
In an October 30 column, Nugent called Parks his "hero" for exercising her First Amendment rights and referenced his celebrity as a guitar player to write, "I'm Rosa Parks with a Gibson":
Heavily armed with whatever media bully pulpit I can muster, I exercise my First Amendment rights like my hero Rosa Parks who refused to sit at the back of the bus when that numb-nut law existed. I'm Rosa Parks with a Gibson.
Parks, who died in 2005, was a civil rights activist best known for refusing to give up her seat on a segregated bus to a white passenger. She was honored by Congress in 1999 as the "first lady of civil rights" and the "mother of the freedom movement" and was a 1996 recipient of the Presidential Medal of Freedom.
Nugent previously claimed in a January interview with WND that "the law-abiding gun owners of America, will be the Rosa Parks and we will sit down on the front seat of the bus." Civil rights leaders called those comments a "very disingenuous comparison," "offensive" and a "far-fetched fantasy."
Following a tragic incident in Northern California where police fatally shot a teenager whose pellet gun was mistaken for an assault weapon, questions are being raised over the National Rifle Association's role in blocking a 2011 state legislative proposal to require BB and pellet guns to be brightly colored in order to avoid confusion.
On October 22, 13-year-old Andy Lopez was shot seven times by a sheriff's deputy in Santa Rosa, California. The deputy, identified by media as a "gun expert", apparently believed that the pellet gun Lopez carried was an AK-47 assault weapon. Indeed, an image from a law enforcement press conference taken by The Press Democrat demonstrates the similarity between the pellet gun and an assault weapon. The Sonoma County Sheriff's Department also released a photo of the pellet gun Lopez was carrying:
Photo Credit: Sonoma County Sheriff's Department
The tragic shooting, now under investigation by the FBI, could have been avoided if the NRA did not block a 2011 legislative proposal in California that would have required pellet and BB guns to be brightly colored to avoid confusion with real firearms. The NRA used its lobbying wing, the Institute for Legislative Action, to fearmonger about the proposal, while NRA News repeatedly hosted an NRA lobbyist to attack the bill.
Fox News continues to push myths about the Employment Non-Discrimination Act (ENDA), baselessly claiming it will undermine religious freedom. In fact, ENDA contains explicit language providing for an exemption for religious organizations from the law.
ENDA, introduced in Congress by a bipartisan group of senators and scheduled for a Senate vote as early as next week, would ban employment discrimination on the basis of sexual orientation and gender identity. An overwhelming majority of Americans support the law, including a majority of Republicans, Catholics, and senior citizens. Small businesses and Fortune 500 companies alike support policies protecting LGBT employees.
On the October 30 edition of Fox News' Special Report, host Bret Baier introduced a segment on ENDA and stoked fears that it could endanger religious freedom, saying, "some people want religious freedom to take a backseat to another kind of freedom":
In a report on the renewed judicial nominations struggle over three vacant seats on the D.C. Circuit Court of Appeals, Fox News' Shannon Bream incorrectly reported that the court was balanced evenly and that past Democratic opposition to highly controversial Republican judicial nominees is equivalent to the blanket obstructionism President Obama's nominees are currently facing.
Appearing on Special Report with Bret Baier, Bream advanced the right-wing myth that filling the vacancies on the D.C. Circuit would "tip the balance" ideologically and is unnecessary, given its "lighter" caseload. From the October 29 edition of Special Report:
BREAM: The problem is this is the D.C. Circuit Court. And what's important about it is it is the key appeals court for looking at federal regulations and federal agencies, things like the EPA, the IRS. So it's something that looks at administrative action that goes around Congress. So it is a real check on administrative power. Now, this is the court that looked at the NLRB recess appointments, those appointments that the president made to the National Labor Relations Board, and found them unconstitutional. So it's very important. It's balanced right now evenly between judges who were appointed by Republican presidents and Democratic presidents, so adding even one new nominee of the president to this court is going to tip the balance. By the way, four of the current Supreme Court justices served on this court. It's very important.
BRET BAIER: But Democrats rightly point out there are a lot of empty seats so why shouldn't they be filled?
BREAM: Yeah, there are three vacancies. The President has tapped three different lawyers to fill those seats, including one who is currently a judge in a lower court. And basically, there were vacancies back when President George W. Bush was fighting to fill these seats as well. Back then Democrats said the court doesn't have enough of a workload to justify filling all of these seats. It's what Republicans are saying now and they add the workload has gotten even lighter in the last eight years. One of the judges currently sitting on the bench said this, quote, "if any more judges are added now, there won't be enough work to go around." That's from one of the current folks who's on this court.
Bream's report on Republican obstruction of Obama's judicial nominees parrots repeatedly debunked right-wing talking points. Bream is correct that the D.C. Circuit Court is a significant part of the federal court system -- it is considered second only to the Supreme Court in terms of its impact on federal law. It is strange, then, that she would uncritically report on Republican efforts to prevent the court from operating at full capacity. Moreover, her characterization of Democratic opposition to George W. Bush's D.C. Circuit nominees is demonstrably false -- that opposition did not result in the elimination of any seats, and ultimately four of Bush's nominees were confirmed. And unlike Bush's judicial picks, President Obama's nominees have faced unprecedented obstruction from Senate Republicans.
Sen. Ted Cruz (R-TX) is facing criticism for explaining to a congressional hearing panel that featured Trayvon Martin's mother that Stand Your Ground self-defense laws benefit African-Americans, a dubious theory invented by right-wing media.
Seeking to rebut statements that Stand Your Ground laws are racially discriminatory during the October 29 hearing before a Senate Judiciary Committee subcommittee, Cruz defended the laws by citing "press reports" that detailed how in Florida African-American defendants were successful 55 percent of the time asserting a Stand Your Ground defense compared to a 53 percent success rate for white defendants:
CRUZ: In Florida the data show that African-American defendants have availed themselves of the Stand Your Ground defense more frequently than have Anglo defendants. According to press reports, 55 percent of African-American defendants have successfully invoked the Stand Your Ground defense in prosecutions compared to a 53 percent rate in the Anglo population. This is not about politicking, this is not about inflaming racial tensions, although some might try to use it to do that, this is about the right of everyone to protect themselves and protect their family.
The press report Cruz referred to is likely a July 16 article from conservative website The Daily Caller that used Florida Stand Your Ground data to assert that "African Americans benefit from Florida's 'Stand Your Ground' self-defense law at a rate far out of proportion to their presence in the state's population, despite an assertion by Attorney General Eric Holder that repealing 'Stand Your Ground' would help African Americans," while reporting the same figures cited by Cruz.
Washington Post columnist Charles Lane recycled erroneous Fox News claims about California's new TRUST Act, which details how state officials can constitutionally participate in federal immigration policy.
On October 21, Lane provided misleading talking points to right-wing media on the topic of an appellate judge's recent admission that strict voter ID has proven to be voter suppression. A week later, the exchange was reversed, with Lane repeating debunked misinformation on the TRUST Act previously broadcast by Fox News host Bill O'Reilly.
In his most recent column, Lane falsely claimed that the TRUST Act was "in tension" with the Supreme Court's decision in Arizona v. United States, which reaffirmed long-standing Supremacy Clause precedent that forbids state law from conflicting with federal immigration law. Like O'Reilly's confused analysis before him, this is a conflation of the unconstitutional attempts of Arizona to usurp federal immigration powers with the separate - and unchallenged - constitutional justification behind the TRUST Act. From the October 29 edition of the Post:
California's new law limits cooperation with the federal Secure Communities program, under which the fingerprints of arrestees that local police routinely send to the FBI also get routed to U.S. Immigration and Customs Enforcement (ICE).
When ICE registers a "hit" against its database, it tells the state or local jail to hold the individual for up to 48 hours so that federal officials can pursue deportation if appropriate. Between March 2008 and September 2011, Secure Communities led to more than 142,000 deportations.
California's new law forbids police to detain anyone under Secure Communities unless the individual has been convicted of or formally charged with certain serious crimes such as murder or bribery -- but not, say, misdemeanor drunk driving.
It's the mirror image of a provision of Arizona's immigration law that essentially required Arizona police officers to check with ICE about everyone they arrested. The Obama administration opposed that as unwanted and unnecessary meddling in federal decision making -- but it was the only aspect of Arizona's crackdown that the Supreme Court upheld.
So: If the Supreme Court says that one state (Arizona) may pester federal immigration authorities with more information about detainees than they asked for, can another state (California) deny the feds information they might seek?
But the surviving provision in Arizona's troubled immigration law (SB 1070) mentioned by Lane involved communication between state and federal officials, whereas the TRUST Act delineates immigration detention powers. These are two entirely separate areas of enforcement underpinned by separate legal justifications.
Contrary to Lane's argument, that is not a "mirror image."
Media coverage of the Senate hearing on the controversial Stand Your Ground self-defense law should not ignore the role the law played in the acquittal of George Zimmerman, research indicating the negative consequences of the law, and that a hearing witness who favors Stand Your Ground has had his research widely discredited by academics.
The Wall Street Journal criticized a recent class-action opinion but completely misrepresented its holding, all while falsely accusing a group of federal appellate judges of "ignoring Supreme Court precedents" in a series of decisions that would allow consumers to hold huge corporations liable for selling defective products.
The WSJ, hardly the first right-wing media outlet to support pro-business legal reforms that would make it nearly impossible for consumers to sue large corporations, painted the appellate courts' decision to allow the class actions to proceed as inappropriately partisan, despite the fact that a diverse group of judges agreed that the suits were appropriate. It also rather egregiously misunderstood the ruling in the Scott v. Family Dollar case, which did not, as the WSJ asserts, "grant class certification" to the plaintiffs.
From the October 24 editorial:
Elections have judicial consequences, and nowhere is that more evident than on the Fourth Circuit Court of Appeals, which last week brushed off a Supreme Court class-action ruling like a lapful of cracker crumbs. The case has damaging consequences for business and highlights a growing trend of lower-court rejection of High Court precedents.
In Scott v. Family Dollar Stores, 51 current or former managers allege that the low-cost retail chain uses "subjectivity and gender stereotyping that causes disparate impact to compensation paid to female store managers." A Fourth Circuit panel by 2 to 1 overturned a lower court ruling and granted class certification despite clear rules set down in 2011 by the Supreme Court in Wal-Mart. v. Dukes.
This latest ruling continues a troubling trend of lower appellate courts ignoring Supreme Court precedents, perhaps on the assumption that the Justices can't take every case. Think of it as a war of attrition against lover-not-a-fighter Chief Justice John Roberts.
Similar behavior was in evidence recently in the Sixth Circuit's Whirlpool v. Glazer and the Seventh Circuit's Sears v. Butler over whether to certify class actions among consumers with allegedly moldy washing machines. In Sears, Judge Richard Posner clearly disregarded the Supreme Court's certification guidelines. The High Court vacated those judgments and remanded them in light of their ruling in 2013's Comcast v. Behrend, but the lower courts simply reinstated their prior decisions. Both cases are now bidding for another High Court hearing.
The Family Dollar majority was made up of Obama appointee Barbara Keenan and Clinton recess-appointee Roger Gregory, who was later renominated by George W. Bush as an olive branch to Senate Democrats. Democratic Presidents have appointed 10 of the 15 active Fourth Circuit judges, including six by President Obama.
Consider this disdain for precedent a preview if Mr. Obama gets a new majority on the Supreme Court. Chief Justice Roberts and his colleagues need to deliver some remedial instruction in class-action law and legal hierarchy.
As an initial matter, the October 16 decision in the Family Dollar case explicitly states (in the first paragraph of the opinion) that the court had issued its ruling "[w]ithout resolving the class certification issue," and remanded it "for the district court to consider whether, based on our interpretation of Wal-Mart, the proposed amended complaint satisfies the class certification requirements of [the Federal Rules of Civil Procedure]."
Even if the WSJ had analyzed the Family Dollar case correctly, its characterization of the recent class-action cases as a "troubling trend" indicative of "disdain" for the law is odd -- especially given the fact that the judges who wrote these decisions were appointed or nominated by Democratic and Republican presidents alike.
Discredited gun researcher John Lott falsely claimed that "over 99 percent" of individuals who fail background checks to obtain a gun are law-abiding citizens, despite convincing evidence that the vast majority of denied individuals are prohibited by law from owning a gun.
On his October 26 appearance on CNN's New Day Saturday, Lott made untrue charges on background checks that are characteristic of his work. He often advocates for weaker gun laws by manipulating statistics about firearms and by touting his discredited research that purports to prove looser rules concerning the carrying of guns in public reduces crime.
Lott, a contributor to FoxNews.com, will testify before an October 29 Senate Judiciary Committee hearing on the controversial "Stand Your Ground" self-defense law while representing his new organization Crime Prevention Research Center (CPRC). Lott has previously mischaracterized "Stand Your Ground" in order to defend the law that played an important role in the acquittal of George Zimmerman on charges that he unlawfully killed Florida teenager Trayvon Martin. CPRC's secretary is National Rifle Association board member Ted Nugent who caused controversy by calling Martin a "dope smoking, racist gangsta wannabe," and used the Martin case to make disparaging remarks about the African-American community and endorse racial profiling.
On October 23, I attended the Institute for Legal Reform's (ILR) 14th Annual Legal Reform Summit to listen to right-wing columnist Peggy Noonan and a gang of corporate lawyers frighten each other into believing that there's an approaching tsunami of frivolous lawsuits.
The theme of this year's summit was "Healing the U.S. Lawsuit System," with panels ranging on topics from class action litigation to the spread of "U.S. style litigation" abroad, and speakers representing multinational corporations and some of the biggest law firms in the country. The keynote speaker for this event was conservative Wall Street Journal columnist Peggy Noonan. It was not entirely clear why Noonan was selected for this task -- though she is a reliable conservative ally, she hasn't written extensively on tort reform. In fact, she didn't make much of an attempt to tie her remarks into the theme of the event at all. Instead, she spent most of her speech complaining about Obamacare (problems with the healthcare website are "deeply IT-related. Deeply, federally, IT-ly related"), and making suggestions on how the Obama administration might "enhance its mystique" (don't go on TV so much). The closest she came to talking about tort reform was when she told a joke about a lawyer whose arm fell off after getting hit by a truck (the lawyer, naturally, was more concerned with losing his Rolex than his arm).
The ILR, an off-shoot of the U.S. Chamber of Commerce, is deeply troubled by the apparent onslaught of "frivolous lawsuits," and its stated goal is to "restore balance, ensure justice, and maintain integrity within the civil legal system." For ILR, this means advocating for federal and state-level "reforms" that make it more difficult for consumers to access civil justice and make it easier for corporations to avoid liability. The Chamber seems particularly disturbed by lawsuits, which is why, 15 years ago, it founded ILR. According to ILR President Lisa Rickard, back then "jackpot jurisdictions dominated the landscape," but thanks to reforms proposed by ILR, there have been positive changes in some of the nation's "worst jurisdictions."
For a group so concerned with lawsuit abuse, none of the attendees seemed disturbed by the fact that the Chamber itself brings a significant amount of lawsuits every year -- not just against the federal government, but regular people who just happened to piss them off. During Chamber President Tom Donohue's speech, he admitted that the Chamber has sued the federal government 170 times this year alone -- that works out to about three lawsuits a week. Despite all those (completely non-frivolous, I'm sure) lawsuits, Donohue insisted, "what we're doing is right. What they're [plaintiffs' lawyers] doing is wrong." Donohue continued, "What we do protects corporations from advancing their interest without being sued for trying to do their best" but still insisted that the Chamber "support[s] the truly wronged from being compensated." Donohue didn't stop there. "This is a war of attrition," he said. "The group with the most money will come out on top, and it better be us."
The National Review Online is trying to push back on the mea culpa of a judge who now thinks strict voter ID does in fact impermissibly discriminate, maintaining its long-standing position as a supporter of election changes that have been widely denounced as blatant forms of voter suppression.
In 2007, well-known and respected conservative Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit upheld a voter ID law in Indiana that was the first in a wave of increasingly stricter restrictions on the right to vote passed by Republican-controlled legislatures. Affirmed by a splintered Supreme Court, as the sole high-profile legal decision on the sort of unnecessary and redundant voter ID laws that are now widely promoted by the GOP, Crawford v. Marion County Elections Board has been incessantly trumpeted by right-wing media as the legal underpinning for their obsession with election changes that are documented to suppress the vote.
Now that Posner has bluntly admitted he was wrong and the evidence shows that strict voter ID is "now widely regarded as a means of voter suppression rather than fraud prevention," NRO is resorting to smearing the judge's integrity and intelligence.
Legal contributor Hans von Spakovsky, the repeatedly discredited champion of photo voter ID laws as the alleged "solution" to the virtually non-existent "problem" of in-person voter fraud, responded to the news of Posner's recent admission by claiming the judge had "been taken in" by the "Left's well-oiled propaganda machine." NRO's in-house legal expert, Ed Whelan, asserted that a switch in judgment by the judge was "weak" and praised a Washington Post columnist who attacked the judge as unethical for speaking publicly.
Von Spakovsky's attempt to rebut Posner's revelation by pointing to increased turnout in communities of color was a rehash of his continued failing of Statistics 101. As has been explained to von Spakovsky and others by statisticians, academics, and congressmen, just because more persons of color are voting now as the country grows more diverse doesn't mean that overly restrictive voting changes aren't suppressing the vote.
Not only is this confusing causation with correlation, but suppressing the vote also occurs when it becomes harder to do, not just when it is blocked entirely. The federal judge who blocked Texas' strict voter ID law because 600,000 to 800,000 citizens do not have easy access to the supporting documentation needed for the new identification requirements held that "a law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote."