The Wall Street Journal renewed its opposition to all things union in a recent editorial, complaining about a proposed rule change that the National Labor Relations Board (NLRB) hopes will make union elections more efficient.
On February 5, the NLRB announced a series of proposed rule changes that streamlines labor organizing, including a new rule that could eliminate long delays that hinder employees' ability to vote up or down on union representation.
In a February 10 editorial, the WSJ framed the new rules as an attack on employers, arguing that a change in election timing could "unbalance" employers' First Amendment rights. This is far from the first time the WSJ has taken an unfair dig at unions and their members, but this time the editorial board's defense of an employer's right to badmouth unions during an election managed to completely ignore how unfair anti-union sentiment has flourished under the old system.
The WSJ also mischaracterized the NLRB's previous attempt to change the rules in 2011 as "failed," even though it later admits that the court that heard the case did not overturn the rule on substantive grounds, but rather because of procedural concerns. Specifically, because the Republican appointee to the NLRB in 2011 made good on his threat to "block" the rule by refusing to vote, the court ruled he had successfully denied the board of its required quorum.
Right-wing media jumped to defend businesses' right to game the system and fire employees merely to avoid the obligation of providing them with health insurance.
On February 10 the IRS announced that it would delay the health insurance employer mandate for medium-sized businesses employing between 50 and 99 people until 2016. Smaller businesses -- those with 49 employees or fewer -- are not required to provide all workers with health insurance. To prevent employers from simply firing workers in order to avoid the obligation to provide health coverage in the next couple years, the IRS included a safeguard: If these businesses fire workers, they must show they did so for "bona fide business reasons" in order to be eligible for the delayed mandate.
In other words, as Washington Post's Wonkblog explained, "'It's simply so they don't game the system,' one senior administration official told reporters on a phone call this afternoon. 'They have to certify they're not doing that and not dropping their coverage.'"
Preventing employers from firing workers merely in order to game the system may seem like common sense, but not to conservative media. Outlets like Fox News immediately lambasted the safeguard as "Orwellian," while The Wall Street Journal blamed the health care law for forcing businesses to fire employees:
Either Obamacare is ushering in a worker's paradise, in which case by the White House's own logic exempting businesses from its ministrations is harming employees. Or else the mandate really is leading business to cut back on hiring, hours and shifting workers to part-time as the evidence in the real economy suggests.
On the February 10 edition of Fox's The Kelly File, Fox News' Megyn Kelly scoffed at the idea that employers shouldn't be permitted to fire workers merely to avoid giving them health insurance:
KELLY: That is the government telling you, employers, 'you will not fire a single person, you will not lay off a single person if you want to take advantage of our gift, and you have to certify under penalty of perjury to the IRS that you didn't do that, that no layoff was due to Obamacare.'
Wow, so now, if a small business employer wants to lay off a person under pain of perjury he has to convince people at the IRS that he's not doing it because of Obamacare.
Wall Street Journal editor James Taranto claimed that cases of "'sexual assault' on campus" that involve alcohol are really victimless crimes in which both parties are equally guilty.
In his February 10 WSJ column, Taranto baselessly argued that men are often unfairly accused in sexual assault cases on college campuses, particularly when both men and women involved in the case were drinking (emphasis added):
What is called the problem of "sexual assault" on campus is in large part a problem of reckless alcohol consumption, by men and women alike.
If two drunk drivers are in a collision, one doesn't determine fault on the basis of demographic details such as each driver's sex. But when two drunken college students "collide," the male one is almost always presumed to be at fault. His diminished capacity owing to alcohol is not a mitigating factor, but her diminished capacity is an aggravating factor for him.
As the Foundation for Individual Rights in Education notes, at some campuses the accuser's having had one drink is sufficient to establish the defendant's guilt ... In theory that means, as FIRE notes, that "if both parties are intoxicated during sex, they are both technically guilty of sexually assaulting each other." In practice it means that women, but not men, are absolved of responsibility by virtue of having consumed alcohol.
While it is true that reckless alcohol consumption can play a role in encouraging damaging behavior, and that male and female college students (particularly underage students) could probably benefit from learning to moderate their drinking for a variety of reasons, Taranto's accusation that women who drink -- and then are forced to have sex against their will -- are not only equally at fault for their assault but are guilty of an equivalent crime takes victim blaming to a new and dangerous low.
Taranto's victim-blaming approach furthers his attempts to disingenuously redefine the problem of sexual assault as a problem of alcohol. The problem of sexual assault on college campuses, as elsewhere, is entirely a problem of sexual assault, in which a victim does not consent to sexual relations with the aggressor. Studies have shown that alcohol consumption doesn't cause sexual assault, nor does it serve as a defense. According to a literature review from the National Institutes of Health:
The fact that alcohol consumption and sexual assault frequently co-occur does not demonstrate that alcohol causes sexual assault.
[M]en are legally and morally responsible for acts of sexual assault they commit, regardless of whether or not they were intoxicated or felt that the woman had led them on previously. The fact that a woman's alcohol consumption may increase their likelihood of experiencing sexual assault does not make them responsible for the man's behavior, although such information may empower women when used in prevention programs.
The right-wing bubble seems impervious to both experts and fact-checkers when it comes to economic truth and the Affordable Care Act.
This week the Congressional Budget Office (CBO) released its updated economic forecast for the years 2014 to 2024. Right-wing media quickly pounced on its projection that the supply of labor would voluntarily decline by about 2 million workers over the next three years due to the ACA, twisting the findings to accuse the ACA of destroying 2 million jobs. Such misinformation from the conservative bubble was predictable, as the Economic Policy Institute (EPI) put it on February 4:
Opponents of the ACA will try to paint these CBO estimates as evidence that the ACA has "killed jobs" or something like it. That's flat wrong. What the ACA has done is expand the menu of options available to Americans about how to obtain decent health insurance without having their income fall to poverty levels. That menu used to include one option--"go to work for a large employer."
Indeed, subsequent fact-checkers and experts discredited the right-wing media's spin -- As The Washington Post's FactChecker plainly said, "No, CBO did not say Obamacare will kill 2 million jobs," echoing Chairman of the Council of Economic Advisors Jason Furman who explained that "CBO's analysis itself is about the choices that workers are making in the face of new options afforded to them by the Affordable Care Act, not something about firms destroying jobs."
But it appears it will take more than facts and experts to penetrate the right-wing echo chamber.
Fox News doubled down on its misinformation on the February 6 edition of Fox & Friends, with an on-air graphic that framed the increased worker flexibility as "Obamacare to cut 2M jobs":
The Wall Street Journal editorial board claimed to "pars[e] this supply-of-labor reasoning" in a February 5 editorial by refusing to acknowledge the distinction between labor supply and job availability:
For years liberals have lamented the jobs crisis and underemployment to castigate Republicans as mean-spirited for opposing more "stimulus" and more weeks of unemployment benefits. But if pervasive joblessness is an economic and social scourge, why celebrate a program that is creating more of it?
Liberals are also trying to spin the CBO report as an endorsement of ObamaCare's alleged health security. Mr. Furman cited the phenomenon known as "job lock," in which people don't switch employers or start their own business to preserve fringe benefits. But job lock is really about employment flexibility, rather than the government extending subsidies so people don't need or want jobs.
A National Review editorial on February 6 characterized the fact-checks as "hilarious," claiming that the ACA was "taking a blowtorch to the work force" and creating a "crater" of lost economic value while mocking the administration:
But the administration still does not seem to be able to get its collective head around the fact that American workers are not just hungry mouths that have to be filled with paychecks: They are people who provide economically valuable goods and services. Those 2.5 million out of the work force may be happier at their leisure, but the economy as a whole will be substantially worse off without their contributions. We could, in theory, simply have the federal government deliver checks to every household and allow each and every one to follow his bliss as he sees fit, but the shelves of the grocery stores soon would be empty. The depth of the Obamacare crater in the labor force isn't some abstract unemployment rate, but the lost value of the work those Americans would have done.
Plugging their ears on the CBO's determination also blinded right-wing media to the CBO's suggestion that the projected changes in the labor supply would increase opportunity for unemployed workers:
If changes in incentives lead some workers to reduce the amount of hours they want to work or to leave the labor force altogether, many unemployed workers will be available to take those jobs--so the effect on overall employment of reductions in labor supply will be greatly dampened.
The Wall Street Journal has repeatedly blamed environmental regulations for California's current water crisis while touting a House GOP plan that would upend restoration efforts along the San Joaquin River without solving the state's crisis.
2013 was California's driest year since 1849, and now the state is experiencing a record-breaking drought. ThinkProgress reports the drought is so dire that "17 communities across the state are in danger of running out of water within 60 to 120 days." In an attempt to preserve what little water the state has left, the California Department of Water Resources has had to cut water allocations entirely to 29 local agencies, forcing them to look elsewhere for water. Farming and fishing industries are among the most impacted by this water crisis.
In response, House Republicans are expected to pass emergency legislation on February 5 which seeks to redirect water to California's Central Valley while reducing the amount of water currently dedicated to fish, wildlife, and habitat restoration under Endangered Species Act protections. According to the GOP, the bill will alleviate the "man-made California drought."
The Wall Street Journal echoed the House Republicans' accusation in a pair of editorials, writing that with the water shortage "Californians are getting another first-hand lesson in the high costs of green regulation" that "puts green indulgences above human welfare." The editors praised the Republican proposal, writing, "What the House legislation really does is prioritize the interest of farmers over fish."
Abandoning any pretense at understanding civil rights precedent or the bipartisan-supported Voting Rights Act (VRA), The Wall Street Journal condemned as "racial mischief" Congress' recent attempt to update this historic law pursuant to the Supreme Court's recent and explicit instructions.
In last year's bitterly split opinion of Shelby County v. Holder, the conservative justices of the Supreme Court gutted the most effective part of the Voting Rights Act - the "preclearance" formula by which jurisdictions with an incorrigible record of voter suppression must submit election changes to federal review before implementation. In his majority opinion, Chief Justice John Roberts invited Congress to "draft another formula based on current conditions."
On January 16, Congress did just that and submitted bipartisan legislation to update the previous formula, which itself was an overwhelmingly bipartisan effort signed into law by former President George W. Bush. In a February 3 editorial, however, the WSJ declared this legislation comparable to the efforts of "Jim Crow era Southerners" and declared "Congress should let it die":
Never underestimate Congress's ability for racial mischief. In the Jim Crow era Southerners blocked civil-rights progress. Now, 50 years after the Civil Rights Act of 1964, the liberal goal is to give national politicians more power to play racial politics in a few unfavored states.
Democrats and the strange bedfellow of Wisconsin Republican James Sensenbrenner have introduced a bill to revise Section 4(b) of the 1965 Voting Rights Act that the Supreme Court struck down last year. Chief Justice John Roberts wrote that the Act's coverage formula no longer made sense in light of current racial realities, and the new proposal isn't much better.
The good news is that the bill, sponsored by Democratic Rep. John Conyers and Senator Pat Leahy and endorsed in his State of the Union by President Obama, specifically exempts voter ID laws from the actions that could be counted as a demerit against the state's voting-rights record. That's a repudiation of Attorney General Eric Holder's politically motivated campaign against voter ID, and perhaps that's why Mr. Sensenbrenner came on board.
But that concession isn't worth the broader political intrusion that the new proposal would allow. The Voting Rights Act's current provisions still provide ample federal enforcement when local politicians limit minority rights. Federal preclearance was an extraordinary exception to the Constitution's command of equal treatment under the law, and the country's racial progress shows it is no longer needed. Congress should let it die.
The WSJ may be puzzled, but there is nothing "strange" about the fact that conservative Rep. James Sensenbrenner (R-WI) is leading Republican support for the latest renewal of the VRA. Support for the VRA and its preclearance mechanism - including the formula for determining covered jurisdictions - has historically been strongly bipartisan.
Sensenbrenner was the GOP's legislative leader the last time the VRA was reauthorized in 2006, when Congress passed updates to the preclearance formula by majorities of 98-0 in the Senate and 390-33 in the House. As former President Ronald Reagan had done before him with the 1982 reauthorization of the VRA (another bipartisan effort, also involving Sensenbrenner), Bush publicly and proudly signed into law the 2006 preclearance mechanism that Republicans (many still in Congress) overwhelmingly supported. The current bill is specifically crafted to repeat such long-standing bipartisan support, and House Majority Leader Eric Cantor has stated that his "experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all ... I'm hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected."
The WSJ not only botches civil rights law history, it also botches the substance of the new amendment.
The Wall Street Journal endorsed billionaire venture capitalist Tom Perkins' inflammatory suggestion that a "[p]rogressive Kristallnacht" may be soon be directed against the rich and dubbed subsequent criticism of the Nazi comparison "Perkinsnacht."
In a January 24 letter to the editor, Perkins hyped a supposed "progressive war on the American one percent" and compared it to Nazi Germany's Kristallnacht, asking: "Kristallnacht was unthinkable in 1930; is its descendant 'progressive' radicalism unthinkable now?" In the following days, Perkins' letter received widespread criticism.
A January 29 Journal editorial -- headlined "Perkinsnacht" -- dismissed criticism of Perkins' Nazi reference as "unfortunate, albeit provocative," and claimed that Perkins' critics had proved his point: "the vituperation is making our friend's point about liberal intolerance -- maybe better than he did."
The Wall Street Journal isn't the first right-wing media source to throw support behind Perkins. On January 29, conservative columnist Michelle Malkin characterized the reaction to Perkin's letter as evidence of a "bullying epidemic" and "wealth-shaming" by "the grievance industry." Fox Business contributor Charles Payne went further, arguing that Perkins "may be a couple of years ahead of the curve."
The Wall Street Journal misleadingly attacked President Obama's decision to boost the minimum wage for federally contracted workers as an "ostentatious display of President Obama's intention to end run lawmakers and even the law," ignoring the fact that previous presidents set precedent for this type of action.
In his January 28 State of the Union address, President Obama announced plans to issue an executive order that would require "federal contractors to pay their federally-funded employees a fair wage of at least $10.10 an hour." As he said, "if you cook our troops' meals or wash their dishes, you should not have to live in poverty."
The Wall Street Journal's editorial board responded to the president's announcement with the suggestion that Obama was acting like a "king" who "seems to think is a [sic] Democracy of One, or shall we say The One." The editorial attacked the president's plan as "the latest ostentatious display of President Obama's intention to end run lawmakers and even the law" and went on to deny the fact that increases in the minimum wage carry economic benefits or have any bearing on the "economy and efficiency" of the federal contracting process.
But the Journal ignored the fact that Obama isn't the first president to issue this type of order. Presidents John F. Kennedy and Lyndon B. Johnson took similar action to increase equal opportunity and nondiscrimination standards for federal workers. As The New York Times Taking Note blog reported:
Other presidents have used executive orders to upgrade labor standards for employees of federal contractors, including President Kennedy, who required federal contractors to have companywide equal employment opportunity plans, and President Johnson, who prohibited racial discrimination and other bias in hiring by federal contractors.
The non-partisan research center Demos has pointed to executive orders that "have mandated that companies working on behalf of the American people are upholding high standards of employment practices" and further detailed presidential precedent:
From the 1931 Davis-Bacon Act to Executive Order 11246 of 1965, and a host of other laws and executive actions, our laws have mandated that companies working on behalf of the American people are upholding high standards of employment practices. Yet as the nature and prevalence of federal contracting, lending and grant-making have changed, and some laws have been weakened, working people have fallen through the cracks.
In the past, presidents have used their authority to improve job opportunities for Americans working or seeking to work for federal contractors. For example, starting in 1941, successive administrations issued executive orders to fight employment discrimination in the contracting workforce. This effort culminated with President Lyndon Johnson's signing of Executive Order 11246, mandating equal employment opportunity and affirmative action for all individuals working for federal contractors. An executive order to raise and enforce workplace standards for contractors, grantees, and other private companies that do business with the federal government would follow this powerful and effective precedent.
Furthermore, the Journal's claim that a minimum wage increase would hurt businesses and doesn't affect the "economy and efficiency" of federal contracting flies in the face of the hundreds of economists around the country, including numerous Nobel Laureates, who have come out in support of such a plan.
Increases in the minimum wage have not been shown to significantly damage the job market. In fact, businesses that have chosen to boost employee wages have reaped economic benefits. As the Harvard Business Review found, "[i]n return for its generous wages and benefits, Costco gets one of the most loyal and productive workforces in all of retailing, and, probably not coincidentally, the lowest shrinkage (employee theft) figures in the industry [...] Costco's stable, productive workforce more than offsets its higher costs." According to the Economic Policies Institute:
[T]he weight of evidence now showing that increases in the minimum wage have had little or no negative effect on the employment of minimum-wage workers, even during times of weakness in the labor market. Research suggests that a minimum-wage increase could have a small stimulative effect on the economy as low-wage workers spend their additional earnings, raising demand and job growth, and providing some help on the jobs front.
Right-wing media are misinforming about a recent Supreme Court injunction that allows the non-profit charity Little Sisters of the Poor to continue its objection to the Affordable Care Act's (ACA) contraception mandate, as they appeal a lower court opinion that rejected their legal challenge.
In its January 24 order, the Court pointed out that the ruling "should not be construed as an expression of the Court's views on the merits." In other words, the nuns haven't won their lawsuit -- the Court has not issued an opinion regarding whether or not their First Amendment rights have been violated. Interestingly, although the order stipulated that the nuns would no longer have "to use the [original] form prescribed by the Government," in order to register their objection, they still must "inform the Secretary of Health and Human Services in writing that they ... have religious objections to providing coverage for contraceptive services."
But this preservation of the status quo hasn't stopped right-wing media from framing the case as a big win for Little Sisters. In a January 27 segment on Fox's Special Report, host Bret Baier "chalk[ed] one up for David against Goliath." National Review Online at least acknowledged the meaning of the Court's order, but still crowed about the nuns' "big procedural victory." In a recent editorial, The Wall Street Journal went further, not only calling the case a "victory" for Little Sisters, but also a "rebuke to the Obama Administration's bullying conception of religious liberty":
[T]he permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still -- and a rebuke to the Obama Administration's bullying conception of religious liberty.
The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.
The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.
Right-wing media have sunk to new lows in smears against President Barack Obama's nominee to head the Department of Justice's Civil Rights Division, former NAACP Legal Defense Fund (LDF) top official Debo Adegbile, a highly-qualified and widely praised civil rights litigator who has been senior counsel to the Senate Judiciary Committee.
The Wall Street Journal took to its editorial pages to plead with ultra-conservative Supreme Court Justice Antonin Scalia to overturn decades of labor law precedent -- including his own opinion -- that would greatly hinder public-employee unions' ability to advocate for their members.
The Supreme Court has long held that employees in unionized workplaces are required to pay dues even if they're not members, as long as their dues don't go toward the political activity of the union, which would be a violation of non-members' First Amendment rights. Requiring dues payments from non-members helps prevent a "free rider" problem where non-unionized workers receive the significant benefits of unionization without having to pay for it.
On January 21, the Supreme Court heard oral arguments in Harris v. Quinn, a case that could allow home-care workers who voted against unionization to refuse to pay dues. These workers, whom the state of Illinois recognizes as public employees because they're paid with Medicaid funds, argue that the union's efforts to raise wages constitute political activity.
Lawyers for the union and for Illinois counter that unionization has reduced turnover for home-care workers, has nearly doubled wages for those workers, and has saved the state around $632 million. It should be noted that the plaintiffs in this case, despite opposing the union, still accepted the wage increase, all while bringing a lawsuit that has national implications for the labor movement. As NPR's legal affairs correspondent Nina Totenberg reported, a finding for the plaintiffs "could drive a stake through the heart of public employee unions" because unions will still be required by law to represent and advocate for non-members even if they refuse to pay dues.
But the WSJ, never one to pass up an opportunity to attack unions, is predictably pro-plaintiff when it comes to Harris. The editorial board, presumably taking advantage of the fact that the WSJ is one of just two newspapers Scalia reads, pleaded with him (or his clerks) to "restore a first constitutional principle" by finding that paying union dues violates the plaintiffs' First Amendment rights -- something that Scalia has previously declined to do.
The Wall Street Journal published an op-ed by former CNN anchor Campbell Brown that misleadingly accused teacher unions of "making it more difficult to protect children from molesters" and failed to disclose that Brown's husband is a board member of an anti-teacher union organization.
The Protecting Students from Sexual and Violent Predators Act of 2013 from Rep. George Miller (D-CA) passed in the House of Representatives in October 2013. Politico reported that the bill will "require school employees, applicants and contractors to pass a comprehensive background check that includes a check of the FBI fingerprint database, standardizing national background check policy. It would forbid school districts from knowingly transferring employees who have engaged in sexual misconduct, and it would allow districts to share background check information."
In a January 17, op-ed for The Wall Street Journal, Brown dismissed the objections of teacher unions such as the American Federation of Teachers (AFT) and the National Education Association (NEA) to the bill as "unconvincing," claiming the organizations' stance is "making it more difficult to protect children from molesters."
Campbell recounted two "horror stories" of sexual misconduct by teachers to paint the legitimate concerns of the AFT and NEA regarding the bill as an attempt by teacher unions to protect sexual predators:
These are sensible measures that are overdue. Yet the two most powerful teachers unions in the country have voiced objections to the bill. Both the National Education Association and the American Federation of Teachers complained about the bill before it passed the House. The NEA claimed in a letter to House members that background checks "often have a huge, racially disparate impact." Randi Weingarten, the AFT chief, warned of inaccuracies in the FBI database and cautioned that teachers would be inconvenienced by potentially long screening delays.
This response is unconvincing. Twenty-five states already use FBI searches in teacher hiring. More important, the bill includes an appeals provision for anyone who believes the results of background checks are mistaken.
However, the AFT, an organization that represents over 1.5 million teachers, does not oppose the bill. In an open letter to the House of Representatives the organization affirmed support for the bill while also addressing legitimate concerns and suggestions for "improving and strengthening the bill."
AFT specifically addressed parts of the bill that they believe need further consideration and deliberation including the possibility that imposing a national protocol could create inefficient duplication processes in states with already rigorous procedures, and that the data in FBI records used for background checks are often incomplete or inaccurate. AFT say they would also like the bill to consider how individuals will be burdened with addressing inaccurate data, and to address the possibility that this bill may cause serious backlogs and delay in the hiring process.
The NEA offered their view "that criminal background checks often have a huge, racially disparate impact. In addition, we are concerned that H.R. 2083, while well intentioned, may run counter to existing state laws requiring background checks." Although background checks have a history of acting as a racially discriminatory tool for companies, Campbell dismissed these points as "unconvincing."
In addition, WSJ did not disclose Brown's possible conflict of interest in writing about teachers' unions - her husband, Dan Senor, sits on the board of StudentFirstNY, an organization that actively opposes teachers' unions.
The WSJ has a habit of failing to disclose their contributor's conflicts of interest when it comes to conservative policies the paper supports. According to a 2012 Media Matters review, WSJ's editorial page published op-eds from 12 writers without disclosing their roles as advisers to Mitt Romney's presidential campaign. In 2012 the paper also did not provide Campbell's background when she wrote a similarly critical op-ed of teachers unions in New York.
Just before the Supreme Court heard oral arguments over a law designed to protect workers and patients at women's health clinics, the Wall Street Journal ignored the history of murder and violence women have faced at the hands of anti-choice activists, instead claiming that the law's "sole purpose" was to criminalize "peaceful" protests.
On January 15, the Supreme Court will hear arguments in McCullen v. Coakley, a challenge which could invalidate a 2007 Massachusetts law that created 35-foot "buffer zones" around local reproductive health center entrances. The law was designed as a response to public safety concerns after patients and staff at Massachusetts clinics faced a pattern of intimidation, harassment, and extreme violence from protestors -- including a fatal shooting of two women.
The Wall Street Journal editorial board's January 14 preview of the Supreme Court arguments did not mention violence once. Instead, the editorial repeatedly characterized anti-choice protesters as "peaceful," framing the law as simply a "chance to advance free speech" and ignored the events leading up to the law's passage to claim that the "real purpose of the state's abortion buffer zones is to limit, and criminalize, peaceful political speech."
But as the Boston Globe's Renée Loth explained, the implementation of Massachusetts' buffer zones law has helped dramatically reduce the level of intimidation that patients entering the clinics are forced to endure (emphasis added):
I was struck by the contrast to the common scene outside the health center in past decades, when antiabortion zealots screamed, chanted, blocked the doors, grabbed at women trying to enter, and photographed license plates. It was a time when women's health centers offering abortions were routinely bombed, burned, or doused with butyric acid. When staffers received letters purporting to contain anthrax. When John Salvi shot and killed two women and injured five others at two women's health centers in Brookline.
What's changed, according to many advocates, is the adoption of the Massachusetts buffer zone law, which creates a protected area for patients and employees a fixed 35 feet from the entrances to health centers. The law achieves a delicate balance between the free speech rights of abortion protesters and the rights of women to safely access the center. "It's a very peaceful coexistence," said Martha Walz, president of the Planned Parenthood League of Massachusetts and a coauthor of the 2007 law. "We no longer have that in-your-face harassment. The tension levels are way down. The law is working for everybody."
The violence Loth cites included the infamous Brookline murders of 1994, when two receptionists were killed in a shooting by an anti-choice activist at a Boston-area clinic. The shooter was convicted on five additional counts of attempted murder "in the wounding of five other people."
Such public safety concerns remain a pressing issue nationwide. In fact, the Anti-Defamation League (ADL) called anti-choice violence "America's [f]orgotten [t]errorism" in 2012, emphasizing that buffer zones are necessary because patients and doctors at health facilities that offer abortion services remain targets of violent attacks "from murders to arsons to bombings."
As the First Circuit United States Court of Appeals noted during its previous consideration of the Massachusetts law, "the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned." The court recognized that the law places some restrictions on speech by moving protestors away from the entrances and farther down the public sidewalk, but emphasized the fact that "a diminution in the amount of speech, in and of itself, does not translate into unconstitutionality":
This case does not come to us as a stranger. At the turn of the century, the Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. We rejected serial challenges to the constitutionality of that law.
The plaintiffs again appeal. They advance a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.
Few subjects have proven more controversial in modern times than the issue of abortion. The nation is sharply divided about the morality of the practice and its place in a caring society. But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned. The Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.
In the context of abortion-related demonstrations, the Supreme Court has specifically recognized the interest of clinic patients [in the 2000 case of Hill v. Colorado] both "in avoiding unwanted communication" and "pass[ing] without obstruction." Consistent with this interest, the First Amendment does not compel prospective patients seeking to enter an abortion clinic to make any special effort to expose themselves to the cacophony of political protests. Nor does it guarantee to the plaintiffs the same quantum of communication that would exist in the total absence of regulation. A diminution in the amount of speech, in and of itself, does not translate into unconstitutionality. So long as adequate alternative means of communication exist, no more is constitutionally exigible.
The Supreme Court's decision on McCullen v. Coakley could have a significant impact on women's access to reproductive care nationwide, creating a ripple effect that could impede other states' efforts to maintain the safety of women seeking medical aid. At ThinkProgress, Robin Marty reported on the type of harassment that patients would increasingly face:
Without a buffer zone to protect patients, someone entering the clinic can be trailed from the moment a car door is opened to the moment the person enters the building. Just as bad, they can be followed closely from the moment they pass through the clinic doors until they are safely back inside the car.
Ultimately, if the Supreme Court strikes down the buffer zone in McCullen v. Coakley, every clinic sidewalk could potentially turn into the sidewalk in Louisville, where anti-abortion protesters can openly chase clinic patients, "exorcise" escorts, and block doors -- not with the metal or even human chains they used in the nineties, but with the emotional force of 100 bodies lining the street, shouting that you are a murderer.
That type of "freedom of speech" won't just be condoned; it will be actively encouraged at every clinic in every state in the country. The freedom to determine if you choose to carry a pregnancy to term, however? That could become a thing of the past.
In the wake of revelations that New Jersey Gov. Chris Christie's (R) office carried out a political vendetta against a NJ Democrat by closing lanes on the George Washington Bridge, right-wing media have sprung into damage control mode to protect the prominent Republican governor, using any excuse to distract and deflect attention from the scandal.
On January 8, New Jersey's The Record reported that top aides within Christie's office coordinated in order to create "traffic problems in Fort Lee" by closing lanes to the George Washington Bridge in an alleged act of political retribution against the city's Democratic mayor after he refused to endorse Christie's re-election campaign.
Right-wing media have reacted by attempting to deflect criticism from Christie, praise Christie's handling of the scandal in contrast to perceived scandals in the Obama administration, or ignore the unfolding scandal altogether. That defense of Christie was exemplified in a January 9 editorial from The Wall Street Journal, in which the Journal argued that "Mr. Christie's contrition contrasts so sharply with President Obama's handling of the tax agency's abuse of political opponents and his reluctance to fire anyone other than a military general for anything," and concluded, "If Mr. Christie really didn't know about this cheap exercise in political payback, and nothing new emerges, the incident shouldn't interfere with the Governor's expected presidential run."
Which brings us to the Obama Administration, which quickly leaked to the media that the U.S. Attorney is investigating the lane closures as a criminal matter. Well, that sure was fast, and nice of Eric Holder's Justice Department to show its typical discretion when investigating political opponents.
This is the same Administration that won't tell Congress what resources it is devoting to the IRS probe, and appears to be slow-rolling it. It has also doubled down by expanding the political vetting of 501(c)(4) groups seeking tax-exempt status. Lois Lerner, who ran the IRS tax-exempt shop and took the Fifth before Congress, was allowed to "retire," presumably with a pension. Acting IRS commissioner Steven Miller resigned under pressure but no other heads have rolled. Yet compared to using the IRS against political opponents
Following the example of the Journal and others, Media Matters has crafted a how-to checklist for conservative media covering the Christie bridge scandal:
Here are other examples of right-wing media appearing to follow this methodology:
The Wall Street Journal editorial board is continuing its long tradition of suspect legal analysis, this time denouncing federal judges for "defying" Supreme Court precedent by allowing class action lawsuits to proceed, despite its previous disregard for well-established law in other areas.
This is an odd posture from the WSJ, especially since they weren't particularly concerned with Supreme Court precedent when they supported overturning portions of the Voting Rights Act, getting rid of affirmative action in college admissions, and fetal "personhood" amendments that would result in a blanket ban of abortion. But perhaps it's not all that surprising that the WSJ editorial board would now hypocritically cling to precedent when it comes to protecting corporate wealth.
In a January 8 editorial, the WSJ complained that appellate court judges -- including conservative Judge Richard Posner -- were "defying precedent" by allowing class action lawsuits against Sears and Whirlpool to proceed. The class members in these lawsuits are seeking damages after Whirlpool washing machines, sold by Sears, developed untreatable mold problems. The federal courts' decision to certify this class of plaintiffs, according to the WSJ, is tantamount to the lower courts telling the Supreme Court to "take a hike":
Must judges follow Supreme Court precedent? Any high school student would say yes -- at least where they still teach civics -- but the High Court now has a chance to reinforce the point.
As early as Friday the Justices will decide whether to hear Whirlpool v. Glazer and Sears v. Butler, which concern whether class-action lawsuits can be certified even if many class members suffered no harm. It's the second time in less than nine months that the cases are seeking a hearing at the Supreme Court, highlighting a growing trend of lower courts defying precedent.
In both cases the classes are structured around consumers who complained of moldy odors in their front-loading, high-efficiency washing machines. Last spring, the Supreme Court vacated decisions by the Sixth Circuit (Whirlpool) and Seventh Circuit (Sears) Courts of Appeals to certify the classes and remanded the cases for reconsideration in light of the Supreme Court's 2013 decision in Comcast v. Behrend, which narrowed the standards for certifying class actions.
Under Section 23(b)(3) of the Federal Rules of Civil Procedure, class actions can be certified only when "questions of law or fact common to class members predominate over any questions affecting only individual members." In Comcast, as in 2011's Wal-Mart v. Dukes, the Justices drew specific parameters for the commonality of the class. If plaintiffs are unable to demonstrate common injury or damages on a classwide basis, the Court said, no class should be certified.
Rather than adjusting their opinions, the Sixth and Seventh Circuits blew past the Court's new guidance and reinstated their previous decisions. The Sixth Circuit panel said Comcast had "limited application" while Seventh Circuit Judge Richard Posner shrugged that Comcast didn't change his reasoning because class actions are the most efficient way to handle the mold complaints.
Even if the washing machine companies were right that most members of the class had no exposure to mold, Judge Posner wrote, so what? If true, "that was an argument not for refusing to certify the class but for certifying it and then entering a judgment that would largely exonerate Sears -- a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment." Message to Supremes: Take a hike.
What the WSJ doesn't mention is that at least 1.3 million consumers called to complain about the mold and smell emanating from their Whirlpool washing machines. In response to complaints, Whirlpool developed and sold a cleaning product called "Affresh" to eliminate the mold problem. According to Slate senior editor Emily Bazelon, Whirlpool earned about $195 million in revenue from that cleaning product, despite the fact that Affresh didn't actually work. Later redesigns to the washers also failed to solve the mold problem. Nevertheless, Sears continued to sell the washers and consumers sued.