THE LIBERTARIAN ENTERPRISE
Number 403, January 28, 2007
"Americans do not have a government suited to a free people."
Speaking of Freedom. . .
Special to The Libertarian Enterprise
It never ceases to amaze me how many people will say one thing but do another. For politicians, of course, that's almost a job requirement. More and more often these days, the same seems to be true of certain religious leaders. Unfortunately, though we typically condemn these people for their hypocrisy, we are ever more frequently engaging in some harmful double standards of our own. The case in point: Freedom of speech and religion, something long cherished by most Americans, is becoming ever more endangered, sadly with the all too enthusiastic backing of the much-touted majority.
The Founding Fathers incorporated the First Amendment into the Bill of Rights in part because they'd been left with such a bad taste in their mouths by their British overlords. Political dissent and criticism were frowned upon, and "unofficial" religions discriminated against. Complaints about either fell on deaf ears, and attempts to unify their voices were typically silenced with quick and sometimes ruthless efficiency.
As a result, the First Amendment quite clearly says that the government must respect free speechincluding (especially including, as far as the Founders were concerned) political speech. It must respect all religions and not endorse any. It must not interfere with citizens who assemble together to express their views, and it must accept petitions from citizens who have complaints. Further, it must honor these things as unalienable. In other words, it doesn't matter what government officials think about what's being said.
What the First Amendment doesn't say (and I've read it; I know) is anything about offensive material. It doesn't suggest that, if what you say upsets me, I have the right to see you muzzled. It doesn't say that if your religion doesn't agree with mine that I have the right to forbid you from talking about yours or honoring yours. Nowhere does it suggest that my political opinions should be forcibly silenced even if they happen to be critical of the government or its policies. And it most assuredly doesn't say that, in cases of disagreement where politics, expression, or religion is concerned, we'll hold a vote and the majority will get its way!
In recent years, some revised interpretations of the First Amendment have been foisted upon us by various and sundry government authorities. This comes as no real surprisethose in power tend to want more power. In fact, that simple and utterly predictable facet of human nature is precisely why we have a Constitution ratified to limit government authority in the first place. So, having some small amount of common sense yourself, you'd think that we might look at the Constitution to deal with the issue accordingly. You should be right. Unfortunately, you're not.
It doesn't seem to matter that the First Amendment (as well as most others) has been repeatedly determined to be an individual right; some politicians are imposing majority rule. And since the viewpoint does happen to coincide with that of the majority (at least for the moment), the politicians are getting away with it.
There's a church in Kansas (The Westboro Baptist Church) with a rabidly anti-homosexual agenda and which is led by a man named Fred Phelps. I don't like Reverend Phelps. In fact, I'd just as soon spit on him as smile and say hello. Among other things, Reverend Phelps blames America's tolerance for homosexuality for the deaths of American soldiers in Iraq. To hammer home his point, his followers have been holding up really hurtful and nasty signs along the streets and outside the churches when military funerals are held.
Whether I like it or not (and make no mistake, I don't), the members of The Westboro Baptist Church are entitled to their opinion. Further, they're entitled to express that opinion. In fact, they're doubly entitled to expression since their funeral activities comprise both a religious stance and a political protest. But the First Amendment notwithstanding, a few weeks ago President Bush signed into law a measure that will prohibit protests at or near military funerals.
Congress and the President were strongly supported by a majority who found Fred Phelps and his congregation to be both hateful and offensive. Although I'm frankly reluctant to defend the indefensible, the fact is that Congress was wrong. I believe that the majority had already found a perfectly goodand constitutionalway to deal with these funeral protests. A group of motorcycle riders took it upon themselves to show up at the funerals, too. The bikers would line up as a buffer between grieving friends and families and the protesters. They'd offer up their own tribute to the fallen soldiers, and make clear their opposing viewpoint.
Without government involvement, this entire scenario was a terrific illustration of how the First Amendment protects even the most unpopular of speech. Instead, the matter has evolved into an example of the government stifling speech. And not only did we let the government stifle an instance of political and religious speech, we urged it to do so.
Another way that many of us engage in political speech is to involve ourselves with candidate or issue campaigns. Of course, the primary purpose of any campaign is to get the word out. We need to tell others why our candidate is the best for a given office; we need to tell others why the other candidate is less so. We must convince others to vote our way on an issue by publicizing the reasons we hold our own viewpoint. And just as in any other kind of marketing campaign, we emphasize our message by repetition; just as in any other kind of advertising, success lies, at least in part, within familiarity and immediacy.
Campaign finance reform legislation named after its two primary authors and sponsorsSenators John McCain (R-AZ) and Russ Feingold (D-WI)mitigated that particular form of political speech substantially. Though the Supreme Court held that McCain-Feingold wasn't unconstitutional (I personally consider that decision to be in error, but I'm not a lawyer who can twist and turn even the Constitution into things it does and doesn't say), it also said that the application of the law might still be appealed. Recently, that's just what happened.
A federal appeals court panel looked at a case brought by the Wisconsin Right to Life group, and decided 2-1 that it was okay to run issue advocacy ads all the way up to election day. This is, as far as I'm concerned, the only pro-free speech decision that could have been made. But the dissenting judge said something that, despite his overruling, is frightening: He proposed that individual ads be examined for their intent before determining a particular ad was okay to run. Imagine what such government control might mean, and consider how that control would be achieved. Then, too, think for a moment about how officials might determine "intent!"
Campaign finance reform was initiated, of course, because most of us thought it would be a good idea. McCain-Feingold was just a bad solution to a legitimate problem. Even with its flaws, the law got plenty of support from the majority because the majority was sick to death and tired of unethicalor even the appearance of unethicalcampaign expenditures as well as the very real perception of influence peddling in exchange for donations. President Bush, who campaigned saying he'd never sign such a law (rightfully so) because of its threat to free speech, ended up quietly signing it after it was made clear that he was in the minority.
In the case of campaign finance reform, the majority was right in that reform was needed; but the majority's demands that even an imperfect law be imposed rather than delaying any further controls was a big mistake, one which we've only begun to see the consequences of making.
Meanwhile, religious freedom remains at risk from the majority of Christians in this country.
Because some fundamentalist Christians complained, the National Park Service actually has a book in its gift shop at the Grand Canyon that suggests the canyon isn't the result of thousands of years of erosion, but rather the quick and catastrophic deluge of the Biblical Great Flood! The Park Service is supposed to educate, not obfuscate. Worse, despite complaints, the book is still (as far as I'm aware) in the gift shop. I suspect that's out of fear of complaints or boycotts from Christians; I'm certain it isn't because anybody there actually thinks the book is relaying any factual information!
At the same time, the push for the teaching of "intelligent design" (read "creationism") in public schools may have quieted, but it's not gone away. Just this year, some citizens in the state of Ohio elected to the State School Boardyes, by a majority, of coursea woman who subscribes to the notion of creationism. There's no question whatsoever that this woman has every right to believe whatever she likes during the course of Sunday School or worship services. She can teach her children to follow in the footsteps of her own faith if she likes. But whether the majority of citizens in her part of the state like her and her ideas or not, such a woman has no business at all in determining the science curriculum for public school students!
All too often, intelligent design proponents claim they're merely asking for "equal time" for their "theory." The problem, of course, is that creationism isn't a theory (look it up). The other problem is that, even if we pretend that creationism is a theory (it's still not), that makes other creation mythologies theories, too, and the Christian fundamentalists certainly won't have any of that being taught in public schools! Since we're once again talking about majorities, the minorities lose out. (Actually, when we talk about the teaching of intelligent design, we all lose out, but that's a topic for another day.)
The First Amendment should be right there in Ohio, Pennsylvania, New York, and everywhere else there are questions of religious teaching in public schools.
Perhaps the most obvious and egregious abuse of "majority rule" where religious issues are concerned today has to do with the idea of gay marriage. I'm not personally for gay marriage. Then again, I'm not against it, either. When I was young, I was taught that marriage was a sacrament administered by my church. Now, it's been awhile since I attended Sunday School, but I'm thinking that marriage remains a sacrament administered by a church, synagogue, mosque, or temple. As such, it seems to me that any decisions concerning gay marriage ought to be made by a church, synagogue, mosque, or temple.
Today's problems, of course, started long ago when marriagelong a religious matterbecame in addition something requiring government sanction. To sweeten the pot, the authorities offered payment in the form of tax savings and other advantages to which non-spouses were not entitled. The majority jumped at it. And now, because a majority seems opposed to gay marriage, those churches which have decided (as is, by the way, their unalienable right) to perform such unions may effectively be told to whom they can and cannot offer sanctioned sacraments. Massachusetts is only the latest of many states ready to permit a majority to determine a religious issue.
In each state where the majority has voted to prohibit gay marriage, the majority is happy. What the majority isn't talking about is the precedent of direct interference in religion by government. They may not recognize that that's what they're doing, but I suspect the truth is far more nefarious: they don't care. Obviously, because the majority doesn't care, the infringements will continue. And anyone who thinks the infringements will stop with gay marriage or even religion is wrong. In fact, even more nefarious infringements are well underway.
Hate speech is prohibited in many places, but is unevenly enforced at best (bizarrely, a majority mandate ensures minorities benefit far more than do majoritiesanti-Christian crimes are rarely considered hateful, and crimes deliberately targeting white people have, in my memory, been prosecuted as hate crimes a grand total of once). Provisions in the USA PATRIOT Act can be (and I suspect already have been, and more than once) construed as prohibiting speech that disagrees with American policies.
Churches are on the forefront of those opposing legislation currently being considered that could make it all but impossible via intrusive and burdensome government regulations to start or promote grassroots political efforts. Censorship is still broadly active on college campuses despite some localized protests, and is all too often supported by the majority of students who prefer never to be offended over any real freedom. (Update: The Senate has stripped the provision providing grassroots group regulation from the ethics bill. It remains to be seen how the House will handle its version of the legislation.)
Sure, the majority also threatens many other of our unalienable rights. Those who fear guns (clear majorities in many major metropolitan areas) would take away the right to self defense; the vast majority who have nothing to hide would give away our Fourth Amendment and privacy rights in exchange for feeling a little safer for a little while. But without the freedom to speak out against any and all of these violations of the Constitution, the only people who would know about them are the victims. And by the time the majority of us find ourselves become victims along with themand we willit will be too late to say anything even if we still can.