8 min readApr 22, 2017



Untitled, Mixed Media Pen and Ink/Watercolor, 13" x 12", Richard J Van Wagoner, Circa 2005, Courtesy of Van Wagoner Family Trust**


Before I comment on the Speech Clause, I must mention Chaffetz’s announcements that he will not seek reelection in 2018 and may not complete his current term, most likely disappointing 209,589 voters in the gerrymandered Third Congressional District, Speaker Ryan and, of course, Trump who was relying on Chaffetz not to do his job as Chair of the House Oversight Committee. Knowing the connection between the Chaffetz Embarrassment and my decision to blog, a colleague asked if I would cease and desist now that Chaffetz is a quitter.


Chaffetz is only slightly more embarrassing than others who, from time to time, pop up and out of their dark, dank holes. Call it “Utah Delegation Whack-a-Mole.” More importantly, however, 2018 is on the horizon, and fallout from the “total disaster” and embarrassment and danger that is Trump provides more than enough reason to persist. Much of what we do is motivated by wanting to feel better. Or not to feel. I gave up the booze, so it’s down to trying to ignore the monsters in the room or writing about them. I gave up trying to ignore them. So I write.

In earlier posts, I suggested possible neologisms of chaffetz. ONE WAY OR ANOTHER, WE’RE CHAFFEZTED,

One additional suggestion might be along the following lines:



verb, tran.

Abandoning high moral duties one has sought, been bestowed, accepted and received through trickery, deceit or manipulation. (See also violation of oath of office, breach of fiduciary duty, gerrymander, palin (to palin, the act of palining)).


Untitled, Mixed Media Pen and Ink/Watercolor, 8.5" x 8", Richard J Van Wagoner, Circa 2005, Courtesy of Van Wagoner Family Trust**

Congress shall make no law . . . abridging the freedom of speech . . . .

The Speech Clause encompasses wondrously simple ideas to assure and preserve self-governance in an ordered society: severe restrictions on government’s ability to interfere with or impair transparency, a free market and open exchange of ideas, assemblage, religious belief and practice. As with most constitutional provisions those rights and the government’s restrictions on impairing those rights are not absolute and the United States Supreme Court often serves as the final arbiter on where the lines are drawn.

As mentioned in last week’s post, the few words that comprise the First Amendment have generated some of the most rigorous, divisive and consequential debates in American jurisprudence. Given Trump’s repeated conceptual massacres of and steadfast tyrannical attacks on these founding principles, I plan to comment on each of the First Amendment Clauses in future posts: press, assembly, religion, petitioning the government to help right wrongs and be heard on issues of concern. Last week I mentioned the Establishment and Free Exercise (religion) Clauses but only briefly. I’m sure I’ll get back to them. Today is speech.



UC Berkeley has become the most recent ground zero for First Amendment intolerance, despite that University’s storied history of peaceful activism, albeit left of center. Two groups invited Ann C (C stands for Coulter) to speak at the University, the Young America’s Foundation and the University’s Young Republicans. The University canceled the speech based on a claim of “very specific intelligence” that Ms. C might be in “grave danger.” The University was pressured into changing its position, offering to allow Ms. C to speak at a time when fewer students will be around to hear her. The student groups are threatening to sue claiming the time, place and manner restrictions on her speech violated fundamental constitutional principles.

The “intelligence” included threats by leftist activists, Antifa, who are threatening to block Ms. C from speaking at the University, whatever it takes. In one of the most anti-First Amendment rants I have heard in recent times, one Berkeley graduate who organized By Any Means Necessary, a national group involved in previous demonstrations that turned violent, said: “Our basic thing is to send a loud and clear message that this is not acceptable on our campus. . . . We will not tolerate anti-immigrant bigotry or bigotry of any kind, which is the only thing she’s here to do.” Of course, this anti-First Amendment rant is protected speech, the same as flag burning or refusing to stand during the National Anthem, so long as it does not create an imminent threat of violence or incite people to certain illegal activity or does not constitute a true threat to others’ safety.

Untitled, Pencil on Paper, 9" x 12", Richard J Van Wagoner, 1997, Courtesy of Van Wagoner Family Trust**

I will not get into the more complex discussion of what is known as a “forum analysis” in legal speak, except to say this. Berkeley is a State-owned and -operated institution of higher learning. The United States Constitution applies to State-owned entities. Presumably Berkeley exists for the primary purpose of education which comes only with the free exchange of ideas, opinions, points of view, rigorous debate. Presumably other Berkeley campus and student groups have invited and are free to invite speakers of interest to them. Presumably, with very few limitations, Berkeley has designated itself as an open public forum for expressive activity. Presumably the University attempts to maintain a posture of content-neutrality, meaning it will not attempt to limit or restrict student-invited guest speakers based on what they have said elsewhere or might say on campus.

Untitled, Pencil on Paper, 9" x 12", Richard J Van Wagoner, 1997, Courtesy of Van Wagoner Family Trust**

In response to reports about UC Berkeley’s cancellation of Ms. C’s appearance for safety concerns, I posted a few thoughts about the national trend toward university students shrouding their willingness to learn in confirmation bias and political or other comfort zones. As more facts came out concerning the controversy surrounding the Ms. C invitation, its cancellation and the University’s conditional un-cancellation, the discussion generated a number of very thoughtful responses. Many of the comments targeted Ms. C, her hate speech and bigotry, and a general lack of any redeeming qualities worth considering.

I consider myself progressive. I deplore Ms. C, what she says and what she stands for. I also deplore applied partisanship where the core principle at risk is fundamental to preserving our democratic form of self-governance. The Speech Clause falls into this category. When groups seeking to exercise their First Amendment rights — especially groups on the margins — encounter threats intended to destroy or otherwise silence their peaceful resistance, demonstrations or protests, the answer is not to cancel the event. For such an act of extreme censorship — which happens to be the very outcome those who oppose such speech are seeking — is tantamount to capitulating constitutional principles to terrorist threats. Terrorism wins. The Constitution loses. Rather, the answer is to assure the event goes forward by doing everything possible to keep the peace, an assurance less interested in the content of any particular expressive activity than in the preservation of expressive activity itself. If necessary, as a friend suggested, call out the f&*#ing National Guard, but protect the speech. Offensive speech is protected. Hate speech is protected. If the speech offends you, speak. The preeminent constitutional importance of this bedrock principle demands it as your right.

Even our newly sainted former Supreme Court Justice Scalia defended the First Amendment’s role in protecting unpopular speech (popular speech does not face government oppression):

The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.

The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.

The United States Supreme Court decided Snyder v. Phelps in 2010 in favor of Phelps who, along with his Westboro Baptist Church, protested at military funerals about the sinful tolerance of homosexuality in the United States, particularly in the military. Near the funeral for Matthew Snyder, slain in the Iraq war, Phelps and his ilk held signs declaring “God Hates Fags,” “Thank God for Dead Soldiers,” “God Hates the USA/Thank God for 9/11,” “Don’t Pray for the USA.” Albert Snyder, the slain soldier’s father, sued Phelps and was awarded more than $10 million by a jury for Phelps’ outrageous, offensive speech near and during Matthew’s memorial service. The judge later reduced the award to $5 million. The Fourth Circuit Court of Appeals reversed the decision holding that this clearly offensive speech was protected by the First Amendment.

The ACLU submitted an amicus (friend of the court) brief to the United States Supreme Court in favor of protecting speech, especially speech on the margins. The ACLU Executive Director Steve Shapiro told NPR:

The First Amendment really was designed to protect a debate at the fringes. You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.

The Supreme Court held that a jury’s finding of outrageousness could not overcome the special protection afforded the speech under the First Amendment. Seven justices concurred in the majority decision, authored by Chief Justice John Roberts. Chief Justice Roberts concluded that other facts that could have taken the picketing outside First Amendment protection were not present.

Justice Alito, the lone dissenter, said what many people believe, some of whom commented on earlier posts this week:

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. . . . In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.

If you find yourself in the Alito camp on this one (or if you don’t), please head down to Berkeley when Ms. C is scheduled to speak. Demonstrate, resist, protest, march, say wildly offensive things to and about her, but please do not incite violence.

*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to

**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in are hers




Criminal defense and First Amendment attorney.