America's North Shore Journal

Supporting the Ninth Amendment

No free speech for you

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Free speech is under attack in upstate New York. It is offensive speech. It is crude, rude, racist speech. And it is entirely protected from government interference by the First Amendment to the U.S. Constitution.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.

In March, an activist who writes the Davy V blog, brought certain Facebook posts to the attention of authorities in the city of Rochester, New York, and the neighboring town of Irondequoit. The posts appeared on the private Facebook pages of Rochester 911 Deputy Director Stephen Cusenz and Irondequoit police officer Detective Jim Frascati.

One of Detective Jim Frascati's Facebook posts

One of Detective Jim Frascati’s Facebook posts

One of Detective Jim Frascati's Facebook posts

One of Detective Jim Frascati’s Facebook posts

The first comment on the last image seems to be the one that got Stephen Cusenz in trouble.

WHEC states this about Frascati’s posts:

The posts attributed to Frascati were allegedly made on a personal Facebook page and had nothing to do with the Irondequoit Police Department.

Time Warner News reports this about Cusenz’s Facebook activity:

The posting in question is a response Cusenz reportedly left on a post made by an Irondequoit officer, who is also being investigated for racially insensitive posts on Facebook.

Cusenz’s Facebook activity has cost him five days without pay and mandatory “diversity and inclusion training”, according to Rochester Homepage, which posted the press release.

(Wednesday, March 25, 2015) – The City of Rochester has issued a five-day suspension without pay for the Deputy Director of Emergency Communications.

After conducting an internal investigation into allegations that the Deputy Director posted inappropriate comments on a social media page, the Emergency Communications Department determined he did in fact make the post.

Although the post was made on his personal account and outside of his work hours, the Department determined that, as Deputy Director, he would be held accountable for his professional and personal actions at a higher level than other “rank and file” employees. Additionally, the Deputy Director will be required to take diversity and inclusion training prior to returning to work.

The City of Rochester Emergency Communications Department is a well-respected and inclusive organization. Department employees are trained to be professional at all times and to respect the diversity of their fellow workers and all of the residents they protect and serve at the 9-1-1 Call Center.

Since this matter is of a personnel nature, no further comment or statement will be issued.

WHEC reported on April 9 that the Irondequoit Town Board had authorized Supervisor Adam Bello to terminate the employment of Detective Jim Frascati at his option.

Irondequoit’s town supervisor is taking steps to fire that officer after the town board approved a proposal to give him the power to do so. The board gave Supervisor Adam Bello the option to end Detective Jim Frascati’s employment with the department and Bello says he intends to do that.

Both men will probably file lawsuits. As a taxpayer in Irondequoit, I will be helping to pay Detective Jim Frascati’s winnings, which could amount into the hundreds of thousands of dollars. I am complaining about that, and the clear lack of understanding of the Constitution displayed by the Irondequoit Town Board and Supervisor Adam Bello.

In 2010, the then director of the ACLU 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.

Do the Facebook posts rise to the level of hate speech? It doesn’t matter.

  • Terminiello v. Chicago (1949)

    [F]reedom of speech…,” Justice William O. Douglas wrote for the 5-4 majority, is “protected against censorship or punishment, unless shown likely to roduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest … There is no room under our Constitution for a more restrictive view.”

  • Brandenburg v. Ohio (1969)

    Writing for the unanimous Court, Justice William Brennan argued that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

  • National Socialist Party v. Skokie (1977)

    County authorities attempted to block the Nazi march, but their efforts were overturned by the U.S. Supreme Court in a terse ruling.

  • R.A.V. v. City of St. Paul (1992)

    After a teenager burned a makeshift cross on the lawn of an African-American couple, the St. Paul Bias Motivated Crime Ordinance—which prohibited symbols that “[arouse] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender”—came into effect. In a unanimous ruling written by Justice Antonin Scalia, the Court held that the ordinance was excessively broad.

  • Virginia v. Black (2003)

    In a 5-4 ruling written by Justice Sandra Day O’Connor, the Supreme Court held that while cross-burning may constitute illegal intimidation in some cases, a ban on the public burning of crosses would violate the First Amendment. “[A] State may choose to prohibit only those forms of intimidation,” Justice O’Connor wrote, “that are most likely to inspire fear of bodily harm.”

  • Snyder v. Phelps (2011)

    In an 8-1 ruling, the U.S. Supreme Court upheld Westboro’s right to picket. While acknowledging that Westboro’s “contribution to public discourse may be negligible,” Chief Justice John Roberts’s ruling rested in existing U.S. hate speech precedent: “Simply put, the church members had the right to be where they were.”

Bluntly, being offended is your God-given right under the U.S. Constitution. The government is prohibited from protecting your delicate feelings. Grow a pair. Pull up your big girl panties. Lots of people are assholes and you are just going to have to deal.

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