Is this a free speech issue? (Update)

A Kansas Representative, Rep. Valdenia Winn, D-Kansas City , is being investigated by the Kansas Legislature for using inflammatory language during a education-committee debate on House Bill 2139, which would make revoke tuition reimbursement for illegal immigrants (presumably Dreamers).

“I have dreaded this day because this is a racist, sexist, fear-mongering bill that I would like first to apologize to the progressively-minded people of Kansas who are appalled that we are turning back the hands of time…um…regarding to, and I am going to use strong language, Jim Crow tactics, and once again making Kansas a laughingstock.”

 

Quoting the paper LJ-World.com posting:

At that point, Rep. John Barker, R-Abilene, interrupted to object, saying: “She just referred to this committee as racist.”

“I said supporters,” Winn replied. “I am not saying anything, but you know what, you can do anything you want, but I am going to say what I have to say because if the shoe fits, if the shoe fits, it fits. But this is an example of institutional racism, not individual racist, institutional racism because it deals with societal structural changes.”

Winn, a black woman, could face expulsion from the legislature; only the fourth time in the Kansas House’s history that they’ve conducted such an investigation. Talking Points Memo details the consequences she faces and the stacking of the committee running the hearing.

So what do you think:

1. If the Kansas House censures or expels Winn, is that a violation of her free speech?

2. Should she have been more delicate in her phrasing?

3. Would there have been any way to point out institutional racism that would have been well received by the majority of Republicans?

I should note that the bill in question has been tabled; so perhaps Winn’s inflammatory remarks hit their target.

Update: On June 19 (that’s yesterday,) the same original reporter, Peter Hancock, reports on Winn’s upcoming hearing, Kansas representative faces hearing over ‘racist’ remarks. The hearing is 8:30 in the morning on June 26; the last day of the legislature, so they would only recommend an action, which would be taken up by the next legislature. Such a recommendation would require a majority of the committee, made of three Republicans and three Democrats.

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70 thoughts on “Is this a free speech issue? (Update)

  1. 1. If the Kansas House censures or expels Winn, is that a violation of her free speech?

    I would say yes. She is theoretically being punished by the government (as opposed to, say, a nongovernmental employer, although I’m not sure if state legislators are exempt from providing for free speech for their members. Lawyers?) for saying something unpopular. There can be no claim that her words were treasonous or carried any other existential threat.

    2. Should she have been more delicate in her phrasing?

    No, immigration policy in the United States is flagrantly nativist and revanchist. It is known. More people, more legislators should speak honestly about the joke that it is and the shame it brings to our otherwise kick-ass nation.

    3. Would there have been any way to point out institutional racism that would have been well received by the majority of Republicans?

    Maybe. I give the Bush family credit for trying. Perhaps for naturally defensive and paranoid Republicans, the message needs to come from one of “their own”.

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  2. A lot of legislatures have in-house rules to keep debate civil and this includes not using directly inflammatory language. I am not aware of any successful free-speech case against these rules. This is not to say that debate doesn’t get heated or angry but you can’t do direct attacks like Winn did.

    The closest analogue I can think of is that the NY Times does not allow op-ed writers to attack other op-ed writers. This leads to a humorous game of “Paul Krugman is definitely not arguing with David Brooks”. This translates as “Paul Krugman is definitely arguing with David Brooks.”

    An example:

    http://nymag.com/daily/intelligencer/2015/05/krugman-definitely-not-arguing-with-david-brooks.html

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  3. A lot of professions revolve around polite disagreement especially law and legislature. Whether this should exist or not is another story. You aren’t supposed to call opposing counsel a “fucking moron” in law. You are supposed to say something like “Your honor, with all due respect to opposing counsel’s argument, I politely disagree….” This translates as “Your honor, opposing counsel is a fucking moron.”

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  4. Arresting representatives for stuff they say on the floor is something that the Fathers explicitly forbade in the Constitution.

    Of all of the things for Kansas to not emulate, this was a stupid one to not emulate.

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    • You can hit em with a cane. Throw a shoe at em. But you CAN’T have em arrested. That’d be anti-democratic.

      I agree, actually. I mean, I don’t wish any violence to this woman, but a white guy hitting her with a cane would definitely get her point across better than anything she could possibly say. Having her arrested is pretty dern close to that. Sanitized, acourse. Without all the [honest!] personal violence and all. :)

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  5. “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”

    Article I, Section 5, Clause 2 of the United States Constitution

    I bet a lot of states have analogues and they can and are used as political weapons.

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      • Yes; she specifically said she was speaking to her supporters. The people who voted for her, and the district she represents.

        ETA: and it’s not like our knowledge that institutional racism exists should shock anybody, either.

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      • It is not a First Amendment issue because legislatures are allowed to adopt rules to keep debate civil. For the Federal government, this power is the Constitution itself. I imagine similar provisions are in state constitutions. It is a free speech issue because it involves punishment for speech.

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        • So what you’re saying is if it’s not a first amendment issue, then it’s not a free speech issue.

          Aaaand it’s not a first amendment issue. (I’ll let you modus the ponens. :)

          But how can it not be a first amendment issue if the thing the legislature objects to is her speech?

          Adding: I mean, it wasn’t her tone, or her aggressive unruliness, or that she caned an old white dude…

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            • The problem here, is the Legislature’s own history; stuff like shooting illegal immigrants from helicopters and praying for the President’s death. If they feel free to say things like that, if those aren’t ‘inflammatory,’ and calling a bill that removes right of in-state tuition that the state granted to immigrant children who are here illegally; and to have a person who represents a district that might have a high population of kids in that position?

              Again, we’re talking about a right the state had granted, and was revoking — to in-state tuition at state colleges. For kids who’d gone to the state’s public schools before college.

              She apologized, to her constituents, that she was unable to sway the Education Committee, of which she was a member, from recommending a law pass that created institutional racism. Which it does; particularly for people who have been here illegally since they were children. Their lives are already enormously complicated; and you know the crap our president got when he used his executive authority to try and cope with this enormous fustercluck of cruelty.

              So my problem is the double standard; it’s okay to call for shooting this kids out of a chopper, but it’s not okay to say that removing a tuition subsidy isn’t institutional racism?

              I’m sure they’ve got rules; and the history of enforcement might, in and of itself, reveal a pattern of institutional racism, and that is a constitutional matter.

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                • There is no end of delicious irony that pundits paid to pontificate and the right’s media markets are trying to spin this as a mental health issue.

                  And ACA would make mental health care available to a lot of people who do bad things. In a place like South Carolina, which refused the Medicaid buy-in, that would help a lot of people who might suffer PTSD traumas from having their church shot up or their flag taken down.

                  Here’s the South Carolina Institute of Public Health’s report on the uninsured.

                  A significant racial disparity in health care coverage exists. In the U.S., 13.1% of white individuals and 17.3% of African Americans are uninsured (ACS, 2012a). In South Carolina, 15.0% of white individuals and 19.2% of African Americans are uninsured (ACS, 2012a).

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    • Probably ‘issue’ was too broad word wrt to the 1A. There’s obviously a legitimate discussion to be had about whether it’s a First Amendment violation; if such a discussion is within the realm of reasonableness then one might then say it’s therefore an “issue.” But I doubt it’s a violation, because of the rule that legislatures can govern there members as they see fit.

      But probably the First Amendment impacts those rules at some level. And I hadn’t considered the content discrimination that mentions in comments (not in the OP).

      So I would edit to say that it may well be a First Amendment issue broadly understood; I still doubt it is a violation.

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  6. 1. If the Kansas House censures or expels Winn, is that a violation of her free speech?

    No, I don’t think so.

    2. Should she have been more delicate in her phrasing?

    I originally wrote “No” for this one but am reconsidering. If it were me in her shoes holding her opinions, I’d have tried to argue against the merits of the bill and argue that it was merely bad policy.

    And maybe I would add something about the message the bill would send to certain communities and how it might be interpreted.

    That said, I’m not a representative, and she is. She probably knows the game better than I do.

    3. Would there have been any way to point out institutional racism that would have been well received by the majority of Republicans?

    No.

    —–
    Obligatory: Why is this in OtC?

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    • Well, one very good context here would be the context,

      I would presume she’d already argued those things, or tried to, and been shut down; that this was a statement made out of frustration after she’d been shut down and probably had to listen to a lot of disturbing stuff from the other people on the committee.

      The TPM link has one of the people who filed the complaint, (two were black,):
      Rep. Tony Barton (R), one of the two signers of the complaint who is African American, objected to the comparison,

      “The difference is this is slander,” Barton told TPM. “She slandered me personally. I am a sponsor of the bill and slander is far different than just making a controversial statement, and I take that personally.”

      Now maybe he has a point. But I know that people who face racism often support racist things; just like some of the worst misogynists are women. (It’s women who tend to require FGM on other women; women who perform the surgery, for instance. Or Michelle Dugger.) So this doesn’t surprise me. And I can imagine a lot of people hearing it, out of context, would find it too inflammatory; they don’t have the knowledge of the things said in the committee hearing meeting to judge her level of frustration; she’s obviously flustered here, struggling to find the correct words for the wrong she clearly sees.

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      • zic: I would presume she’d already argued those things, or tried to, and been shut down

        Yes, that does seem likely. My best answer to your question #2 is actually “I don’t know.”

        Incidentally, the part I think got her in more trouble wasn’t the quote that you pasted, it was this one:

        “I want to apologize to the students and parents whose lives are being hijacked by the racist bigots who support this bill, because this bill is an act,”

        That moves from calling the bill itself racist to those who support the bill racist, which I think is a difference that matters.

        At any rate, I wouldn’t have said what she said, but I’m not really state representative material. Maybe she needed that to get where she was in the first place.

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        • This is a good catch, and something that to me, really is going too far, though expulsion from the legislature in response also seems like going too far.

          Did Shirley Chisholm ever say things like this? Did John Lewis, or Ron Dellums, or Charles Rangel? Can you imagine Eleanor Holmes Norton saying this?

          And it isn’t just that its offensive, it’s that it seems to me to be bad strategy, in that this style of rhetoric is unlikely to result in any positive gains.

          And being that she’s a legislator, that’s her job.

          It’s not that I don’t understand the frustration, hurt and anger behind that, but we hold people in public office to a higher standard of behavior.

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          • The double standard here really bothers; old white dudes can say intemperate things because, you know, they just lost their cool a little and it’s okay. Praying for the President to die soon is okay. Calling for shooting immigrants from helicopters like a Sarah Palin wolf hunt is okay. He just lost his cool, we can forgive that.

            But calling a racist bill racist; suggesting that it’s supporters are acting out of racial animus?

            We get to the whole psychology of peaceful protests here; where you surrender your right to defend your physical body and your families’ bodies, and where one bad actor or instigator blows the whole thing up. We place a similar demand on the leaders and thinkers of minority groups; white dude can say intemperate things and he’s just being an a-hole; but sub-group leader’s actions and words are inflammatory because . . . they point out actions of white dudes?

            I dunno; I think we hold some people in public office to a higher standard, just like we hold some protesters to a higher standard.

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            • zic: Praying for the President to die soon is okay. Calling for shooting immigrants from helicopters like a Sarah Palin wolf hunt is okay.

              Well, it’s not OK if there are rules against it. And I think it’d be hard to craft rules that would make Winn’s comments a violation and such other comments fair game.

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                • Mike Schilling: Win was criticizing member of the body she belongs too

                  I’m not taking anyone’s side other than hers, but there is perhaps something to this idea in general. Back on my post about the tu-quoque fallacy, there was a discussion about Caitlyn Jenner (of course there was!) In it, Brian Murphy called Veronica a not-very-nice word. When the comment was deleted, Brian asked:

                  So it’s ok to say CJ isn’t really a woman, but a little profanity gives you the vapors? That’s a real enlightened community you have here at the LoOG.

                  I wouldn’t really want Caitlyn Jenner to be called a not-very-nice word on this site, but doing so would be far less destructive than calling a fellow commenter the very same thing. Calling people who aren’t here bad words is bad, but it’s not in the same league as us calling each other bad words. I’m having difficulty expressing why it is exactly, but I think it has to do with how difficult it is to recover from someone saying “you are a banana loaf” as compared to “President Obama is a banana loaf.” The former necessarily stings more.

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                  • I’ll try!

                    1. Insulting members of your own community, on the assumption acourse that it’s a community, violates the norms upon which community is built.

                    2. Saying that Win violated the norms of her community (by insulting those old white dudes!) presumes that there actually is a set of community norms that can be violated, rather than a set of institutional norms imposed by committee to preserve “comity”.

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                    • Can we at least show where these norms were written down somewhere when we’re discussing something as wacky as censure or expulsion?

                      The fact that we haven’t seen these is really weird to me at this point.

                      I mean, it’d be like we found some videotape of some police officers beating up some adolescents and the defense was “maybe those adolescents did something”.

                      But this isn’t even that. It’s showing what the kids did first and then defending the beating by saying “maybe what those kids did was against the law there” and then going on to argue the importance of following the law.

                      Granted, this isn’t my true opposition because I know that I’d be more than happy enough to say “that’s a stupid law” if someone established that there was a law against this…

                      But establishing that there is a law against this strikes me as a fairly important first step.

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                      • Hey, I was the one that initially brought that up upthread, yeah?

                        I haven’t forgotten. :)

                        This is a different point, seems to me, about community norms and whatnot. ANd the point I’m getting at is that a legislature is not a community in any sense of that word, except on a artificially technical undrstanding. So whatever norms are established or imposed have nothing to do with a norm(al) conception of community norms.

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                        • Oh, I wasn’t arguing with you. I was merely yelling “AND ANOTHER THING”.

                          For what it’s worth, I’m down with there being “community norms” for a legislature and using the community’s social rewards/punishments to incent following them.

                          But when we move from social rewards and punishments to official ones, it’s important to point to the official rulebook.

                          Censure/expulsion is waaaaay beyond not remaking a pot of coffee after you’ve drunk the last one.

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                          • But when we move from social rewards and punishments to official ones, it’s important to point to the official rulebook.

                            Yeah. That. I agree completely. I mean, this is either a runathemill ethics violation (citing provisions A,B,C), or something SERIOUS, ya know? Right now, we haven’t heard any references to A, let alone B or C.

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                          • I think it’s a common rule in legislatures that members can’t directly insult each other. And that’s probably a good thing, if it results in less personal animus and more time spent doing actual work. (Jokes about more politicians insulted and fewer laws passed being win-win taken as read.) I recall a story about Churchill being careful not to call another MP a liar, but instead commending him for his precision in expressing the opposite of the truth.

                            But the usual punishment for that is being reprimanded by the chair and warned not to do it again. Threatening censure or expulsion is (I am free to say it) racist, sexist BS.

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    • GIven your answers to 1 and 3, it seems to me you’re committed to the idea that the Rep would necessarily, and justifiably (assuming, as you do, that speech protections are taken off the table) be sanctioned/expelled for expressing her views.

      Which is weird, no?

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      • And as I pointed out above, she was not addressing the members of the committee; but her supporters; making her thoughts and concerns in representing them part of the public record; the way C-Span might have recorded it.

        I’ll have to do a search and see if there’s a video or transcript available.

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      • Follow up!

        Suppose that a conservative CCer said something dispicable – for example that anyone who claims that abortion protections ought to extend to women who claim to have been impregnated due to rape is bald faced (self-serving!, man-hating!!, abortion-loving!!!) liar since there are Biological Mechanismos that terminate the pregnancy when it’s due to unwanted force.

        Just suppose, contrary to fact, that a person said such a thing.

        Should the CC be able to expel that person for expressing such an ignorant and cynical view of women and abortion advocates?

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      • I understand the answers are seemingly difficult to reconcile. #1 is the one I’m less sure of, to the point that I could pretty easily be convinced it should be answered with a “yes”.

        If I were asked, I would not vote to expel her. It would be the easiest choice in the world to make. Remember that I’m someone who doesn’t think free speech is something that should be enthusiastically embraced rather than something that be complied with grumpily.

        If we are to make the case defending censure, it would be that the rest of the political body itself has it’s own freedom of speech, and they can exercise that right through censure. It would be a situation in which free speech is being used to counter Representative Winn’s free speech.

        Expulsion, I think is qualitatively different. IMHO, the bar for expelling someone who was elected to her position should be very high and certainly much higher than “we’re offended by what you said.”

        And actually now that I’m writing this, I think maybe the answer to question #1 should be “‘No’, if the consequence is censure, but ‘yes’ if the consequence is expulsion.” She made this remark while “on duty”, but at the same time it’s political speech and she’s a politician. It’s possible, and perhaps even likely that they have rules about what constitutes acceptable and unacceptable speech and she violated those rules, but I think it may be probably that those rules could be struck down given that they would seem to interfere with her speech.

        But IANAL, and not being all that well-versed in this, I am clearly making this up as I go.

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  7. So I went to read the actual bill, and got a 404 error; I cannot find any link to transcripts.

    When you’re reporting on a story, this is when you file a FOIA, requesting the information.

    This is easy to do. Every one of you has the right to do this, too. It is a right you should learn how to exercise, too, just so as you know.

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  8. I would like to point out somethings that didn’t get censured for sommmmmmeeeeee reason. From the TPM story.

    “Irigonegaray points to past controversial comments made by Republicans in the statehouse that received no such response. In 2011, Rep. Virgil Peck (R) suggested undocumented immigrants should be shot from helicopters like feral pigs, and a 2012 email sent by then House Speaker Mike O’Neal (R) to fellow Republicans said they should use a Bible verse with the phrase “Let his days be few and brief” as a prayer for President Obama.

    “Was there a special investigative committee to sanction him? No,” Irigonegaray said.”

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    • And you know… I bet if you were to bring those instances up in the investigatory committee they truly wouldn’t comprehend the hypocrisy. And that’s the true meaning of privilege: to be able to live your life with that level of cluelessness and lack of self-awareness.

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  9. I don’t have time to fully lay out my thoughts on this, but a couple of quick hits:

    – First, the legislator insisting that what she said constituted slander has no clue what “slander” means. HINT: Pure expressions of opinion based on disclosed facts cannot be slander, and calling something or someone “racist” is just about always a pure expression of opinion.

    – Second, I think is closest to being correct here on whether this is a First Amendment issue. If all they do is formally censure her, then that’s just government speech and not a First Amendment issue. But if they vote to expel her, then that would most likely be a First Amendment issue. With all due respect to and , the First Amendment almost certainly trumps the body of the Constitution in terms of Congress’ ability to select its membership to the extent the latter is inconsistent with the former. The First Amendment, remember, was drafted and ratified only after the Constitution itself, so to the extent there are any inconsistencies, the First Amendment automatically controls.

    Even if that weren’t the case, though, the First Amendment of the US Constitution applies against the states under the 14th Amendment, so any state constitutional provisions, rule, or laws that violate the First Amendment are invalid to the extent of that violation.

    Think of it this way – if Congress or a state legislature could use its rights to choose criteria for membership to bar or expel particular viewpoints, then a majority party could, in theory, have a right to expel a minority party altogether and even prohibit that minority party from being elected.

    So if they try to expel her based on her Constitutionally protected speech, I have a very hard time seeing how that would be anything other than a First Amendment violation.

    They might try to say that they’re going after her for the alleged incivility of her speech rather than the content of it, but that argument won’t fly even remotely for several reasons, not least of which is their failure to apply that standard in the past, but also that it’s pretty hard to imagine how one can object on the grounds that a proposed law is racially discriminatory without, y’know, calling it racist.

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    • Think of it this way – if Congress or a state legislature could use its rights to choose criteria for membership to bar or expel particular viewpoints, then a majority party could, in theory, have a right to expel a minority party altogether and even prohibit that minority party from being elected.

      But if I think of it this way, then the problem doesn’t inherently depend on the activity they are prohibiting being First Amendment-protected expression, does it? Surely if legislatures are barred from controlling membership politically in this way, they are barred from doing it by way of prohibiting either activities that are or that aren’t First Amendment-protected alike, wouldn’t they be? So, if the legislature sought to control membership to their political allies by banning the eating of quinoa, then it would be by a principle other than First Amendment protection for eating quinoa that they would be barred from doing so – i.e. perhaps the guarantee of a republican form of government, or just the state laws that say that legislative seats are to occupied by people that win elections for them unless X?

      Or no? Does eating quinoa in that case become First Amendment-protected expression, and the First Amendment remains the only limitation that can be in play in limiting this kind of power play?

      Because if we say that it’s the First Amendment that protects against this kind of thing, how do we determine what the legislature can expel someone for, especially if it’s conduct that is in the neighborhood of speech? Are we taking anything speech-like off the table as something a member can be expelled for? Maybe the answer is yes, and it’s correct – I don’t know at all. Is there something we’re going off of as far as precedent on this?

      (Please read none of these questions as rhetorical.)

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      • If the legislature just simply said “Membership in the Democratic Party shall disqualify one for membership in the legislature,” that would be a clear First Amendment issue, whether in terms of free speech or freedom of association. If they said, “no one who has expressed opposition to the state’s drug laws,” again a clear First Amendment issue. But if they said “no one who eats quinoa,” then there wouldn’t be a First Amendment issue, though there might still be issues under other Constitutional provisions – certainly Powell v. McCormack could be read as suggesting as much (though that dealt with seating an elected official rather than expelling him once seated, which is allowed).

        Regardless, I don’t know of any precedent suggesting that states legislatures can avoid First Amendment protections by relying on the Constitution’s allowance for expulsion by 2/3 vote.

        I do know, since I was involved with such a case, of precedents that the First Amendment applies to quasi-legislative body hearings and that it can limit that body’s ability to crack down on speech it doesn’t like at those hearings. Specifically, such a body cannot gavel someone down and prevent them from speaking at the hearing just because they don’t want to hear it.

        I’d thus be more than a little shocked if it were held not to limit such a body’s right to exclude elected members for mere speech.

        The only way around this is if they can point to a pre-existing, content neutral, policy or practice, then show both that they’ve applied this pre-existing policy consistently in the past and that this member’s speech violated that policy.

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  10. 1. If the Kansas House censures or expels Winn, is that a violation of her free speech?

    No. The House is conducted under its own Rules, which she agreed to by admittance; i.e., she forfeited any “free speech” rights in attending the committee meeting.

    Just as she accepted legislative immunity in being present at the convening of the State House, she accepted its Rules of procedure in doing so.

    2. Should she have been more delicate in her phrasing?

    Not in a position to choose for her.

    3. Would there have been any way to point out institutional racism that would have been well received by the majority of Republicans?

    Citing studies and data sets seems to be the generally accepted standard.

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    • Citing studies and data sets seems to be the generally accepted standard.

      Is there a long history of citing studies and data sets sufficing for the accusation of racism being admitted to by the accusee?

      Can you cite any studies or data sets to confirm this view?

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      • No. In fact, it’s irrelevant as well as fallacious.

        But it’s a good show of what it was exactly that got the legislator into hot water in the first place.

        Had she stuck to the outcome of the proposed bill, that would be one thing. Fully permissible.
        However, she chose not to. She chose to attack the bill itself.

        Can you cite any study showing that racism is a necessary component of any manner of thing resulting in institutional racism?
        If so, then your question might have some validity. If not, then it is merely contentious.

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        • Wait aminute here WillH. All I did was hold yerownself to the same standard your hlding her to: cite some studies or data sets, ya know? How is that contentious? (Oh, I know, believe me…)

          As for the other point, let’s go into the way back machine and look at the institution of slavery itself, with all the accompanying rhetoric about black folk’s character and humanity. That’s not a data set, and it’s not a study, but it does seem to be evidence of racism, yes? Even with all the apologetics about slave owners really caring about their slaves…

          So if racism in the time of slavery can’t be demonstrated, why think that racism in current times can be? I think you’re holding her to a standard that simply cannot be met. Like, in principle.

          Yet, there is racism in these United States, dontcha think? Or maybe you don’t, and think it’s the fault of black folks that they keep ending up in a white man’s jail.

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    • Citing studies and evidence worked really well in the giant health care debate to create a moderate, analytical and thoughtful tone which has certainly continued since then while we analyze the data we’ve got so far. Of course HC is something a bit more concrete and amendable to evidence as opposed to racism.

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