George Boardman: Another test of our willingness to tolerate free — but hateful — speech
Observations from the center stripe: batter up edition
I DISMISSED the Giants last year for doing too little to improve their run production, so I’m not saying a word this year…IF MATT Cain returns to form and Tim Lincecum rediscovers some semblance of his form (this is his contract year), the Giants could have one of the best starting rotations in baseball…THE A’s have so many new players this season, you really need a scorecard to figure out who they are. This team truly is a wild card…IF THE show’s producers are looking for a new franchise, they might want to try “Survivor: Oakland A’s,” tracking this year’s opening day roster to find out who’s still on the team next April…GOOD NEWS for the Giants and A’s: Sports Illustrated doesn’t think either team will make the playoffs…A DOZEN pitchers will be working this year under contracts that will pay them $100 million or more over the life of the deal. At least two are worth the money: Clayton Kershaw and Felix Hernandez…BASED ON the weird injuries they suffer, baseball players have to be the clumsiest professional athletes around. Chicago White Sox ace Chris Sale broke his foot unloading his truck, and Tampa Bay reliever Ronald Belisario fractured a shoulder trying to get out of a swimming pool…EARLY IN the season, a lot of attention will be paid to Major League Baseball’s attempt to speed up the game. After the All-Star break, things will slowly return to normal…MLB SHOULD reinstate Pete Rose so he will quit whining, Of course, then he’ll whine about not being in the Hall of Fame…BASEBALL’S REAL magic number is 88, just seven games above .500. That’s usually good enough to make the post season as a wild card team, and as the Giants proved last year, anything can happen after that…
We’ve been given another test to determine how much we truly cherish free speech, and the early returns suggest we have our reservations about this hallowed concept.
The test comes courtesy of Huntington Beach attorney Matt McLaughlin, who has put forth a ballot initiative called the “Sodomite Suppression Act,” authorizing the killing of gays and lesbians by “bullet to the head,” or “any other convenient method.”
Throwing more gasoline on the fire, McLaughlin also proposes that anyone who transmits “sodomistic propaganda” to a minor be fined $1 million, imprisoned up to 10 years, or expelled from the state.
The initiative has landed on the desk of state Attorney General Kamala Harris, who has the ministerial duty of preparing a title and summary for the measure before it moves to the signature-gathering stage.
California courts have ruled in the past that the attorney general doesn’t have the authority to prevent an initiative from moving forward, but that doesn’t mean Harris is just going to rubber stamp it.
Harris has filed a request with Superior Court in Sacramento seeking to be relieved of her ministerial duties, arguing that the proposal is blatantly unconstitutional and illegal, in addition to wasting state resources, generating unnecessary divisions, and misleading the public.
Others have asked the State Bar to review McLaughlin’s fitness to practice law, and a petition to disbar him has received more than 44,000 signatures. This effort isn’t likely to go anywhere; being stupid isn’t enough to get you disbarred in California.
It’s also unlikely McLaughlin’s initiative will ever confront voters. If it is approved for circulation, he’ll have 180 days to collect 365,880 signatures to put the measure on the ballot. Signature collection alone is typically a multi-million dollar effort, with many millions more needed to persuade California’s voters to pass it.
But McLaughlin’s bizarre act has triggered a discussion of how we can reform and improve California’s initiative process. As is usually the case, there are plenty of smart guys who want to curtail the ability of the electorate to make its own decisions, even if they’re wrong.
For just $200 — a cost that hasn’t changed since 1943 — anybody can draft and submit an initiative, an act that has become more popular in recent years as the state Legislature ignores or dodges major issues facing the state. Just 47 initiatives were filed in the 1960s compared to 650 in the first decade of this century.
Naturally, many of these measures come from the political fringe. Some of the more recent ones: Eliminating divorce, requiring public schools to offer Christmas caroling, making criminals of political candidates who lie. Currently circulating is a proposal that requires actors in porn movies to use condoms.
And some of the initiatives that were approved by voters have been ruled unconstitutional, most recently Proposition 8, which took away the right of gay men and lesbians to marry the person they love when it passed in 2008.
Eight states and Washington, D.C., have tried to head off this problem by instituting a precertification review to ensure that only constitutionally sound measures make it onto the ballot. Three of those jurisdictions completely prohibit ballot initiatives that seek to limit specified constitutional rights.
Of course, what is constitutional is subject to redefinition. At various times, the Supreme Court has ruled that even free blacks could not be U.S. citizens and had no standing to sue the government, and “separate but equal” treatment of blacks was legal.
Then there are long-shot legal losers like Clarence Gideon, who established the right to an attorney even if you can’t afford one, and Ernesto Miranda, requiring police to read a suspect his legal rights before interrogation begins.
Go ahead: Tell me how Johnny Roberts and the Supremes are going to rule on the major cases facing the court this year.
Others want to give the attorney general the authority to reject any proposed initiative that is blatantly illegal. McLaughlin’s proposal is an easy call, but the notion of what is or is not “clearly” illegal is not always so cut and dried.
We’re better off avoiding this slippery slope and retaining the current approach that prohibits discretion so that close cases are not derailed by a recalcitrant attorney general. The worse thing we can do is give politicians veto power over the process.
One idea that does make sense is to raise the initiative filing fee, and then reimburse proponents if their initiative qualifies for the ballot within two years. Critics say making the price of entry too high will make it tougher for grass-roots groups to qualify a measure, but the reality is that it costs millions of dollars to pass an initiative in California.
A group that can’t afford a higher fee has no chance of getting its initiative approved anyway, and it would help discourage people from pitching multiple variations of a plan or filing frivolous initiatives.
Otherwise, we should limit the ability of officials who think they know best from thwarting people who are unhappy with the status quo. Democracy can be an exceedingly messy process that works best when we are willing to tolerate thoughts and ideas we abhor.
George Boardman lives at Lake of the Pines. His column is published Mondays in The Union.
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