Category Archives: Constitution

Lying As Free Speech

I really have to stop reading the news. It’s bad for my mental health.

Just recently, I’ve learned that Wisconsin’s Republican legislature plans to reverse April’s election of a state Supreme Court Judge–who won by eleven points–by impeaching her. (Grounds to be concocted later…)

DeSantis appointed the co-founder of Moms for Liberty to the state’s ethics commission.

Elon Musk threatened to sue the Anti-Defamation League for reporting on the steep rise of anti-Semitic content on “X.” Musk claims that it is the ADL’s reports, not his wack-a-doodle management of the platform formerly known as Twitter, that is responsible for the steep drop in companies willing to advertise on the site.

And I see that Florida–which has been waging war against “woke” (i.e. accurate) education–is being joined by Oklahoma in authorizing the use of PragerU propaganda in public school classrooms.

The Guardian recently provided an in-depth look at PragerU.

A rightwing media outlet promoting climate-crisis denialism and other “anti-woke” staples to young students and adults via social media has become a fundraising Goliath, raking in close to $200m from 2018 to 2022 with big checks from top conservative donors, tax records reveal.

Founded in 2009 by the conservative talkshow host Dennis Prager, the eponymous Prager University Foundation is not an accredited education organization. But via online media its PragerU Kids division has become a key tool in spreading false claims to young people with short videos aimed at undercutting widely accepted science that climate crisis disasters are accelerating due, largely, to fossil-fuel usage.

PragerU’s influence in pushing false narratives about climate change and other far-right shibboleths such as airbrushing the brutal reality of American slavery gained ground when the Florida board of education in July gave the green light to using its videos and other materials in classrooms, a move that PragerU is trying to capitalize on in Texas and other states. On Tuesday, Oklahoma’s school system also approved the use of PragerU’s materials.

On its website, PragerU claims to be the “world’s leading conservative non-profit, focused on changing minds through the creative use of digital media.”

In other words, through lying. They call it “edutainment.”

The site’s funders include the Right-wing’s “usual suspects”–  oil and gas billionaire brothers Farris and Dan Wilks ($8m over the past decade), the Lynde and Harry Bradley Foundation, the National Christian Charitable Foundation and (predictably) the Dick and Betsy DeVos Foundation

PragerU cartoons and videos include one about Christopher Columbus and the discovery of America, which has Columbus explaining that slavery isn’t so bad.

“Slavery is as old as time, and has taken place in every corner of the world, even amongst the people I just left. Being taken as a slave is better than being killed,” the cartoon Columbus said. “I don’t see the problem.”

Other PragerU videos about the climate crisis make various false claims: they depict solar and wind power as environmentally dangerous, liken environmental activists to Nazis and claim recent record-breaking heat is just part of the natural weather cycle.

What truly drives me up the wall is the emerging “conservative” argument that the First Amendment protects such unconscionable lying.

In an extraordinary display of chutzpah, Representative Jim Jordan, Republican of Ohio, and fellow Republicans on the House Judiciary Committee have accused Democrats of violating the First Amendment rights of election deniers.

In a report titled “The Weaponization of CISA: How a ‘Cybersecurity’ Agency Colluded With Big Tech and ‘Disinformation’ Partners to Censor Americans,” they argue that

the First Amendment recognizes that no person or entity has a monopoly on the truth, and that the “truth” of today can quickly become the “misinformation” of tomorrow. Labeling speech “misinformation” or “disinformation” does not strip it of its First Amendment protection. As such, under the Constitution, the federal government is strictly prohibited from censoring Americans’ political speech.

These people have no shame….

These civil libertarian claims of unconstitutional suppression of speech come from the same Republican Party that is leading the charge to censor the teaching of what it calls divisive concepts about race, the same party that expelled two Democratic members of the Tennessee state legislature who loudly called for more gun control after a school shooting, the same party that threatens to impeach a liberal judge in North Carolina for speaking out about racial bias, the same party that has aided and abetted book banning in red states across the country.

The linked column focuses upon the GOP’s hypocrisy, but that hypocrisy’s effectiveness relies on Americans’ widespread ignorance about the operation of the First Amendment.

Free Speech doesn’t allow you to engage in defamation or commit fraud with impunity; it doesn’t allow  science teachers to substitute creationism for evolution.

It does, however, protect the ADL from Musk’s anti-Semitic  threats….

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Why I Love David French

I make it a point to read anything I come across from David French, whose writing I love because it is both eloquent and thoughtful–and admittedly, for the same reason most of us like writers: he shares my own beliefs and concerns. (Come on–admit it. We all prefer the folks we consider wise because they agree with us.)

In a recent essay for the New York Times, French focused on one of my longstanding and primary obsessions: the American public’s lack of civic literacy, and the consequences of that pervasive lack.

French used what he aptly termed the the “Articulate Ignorance of Vivek Ramaswamy” as his jumping off point, using reactions to Ramaswamy’s glib ignorance as an example of the way “in which poor leadership transforms civic ignorance from a problem into a crisis — a crisis that can have catastrophic effects on the nation and, ultimately, the world.”

French refers to the research that I have often reported on this site:

Civic ignorance is a very old American problem. If you spend five seconds researching what Americans know about their own history and their own government, you’ll uncover an avalanche of troubling research, much of it dating back decades. As Samuel Goldman detailed two years ago, as far back as 1943, 77 percent of Americans knew essentially nothing about the Bill of Rights, and in 1952 only 19 percent could name the three branches of government.

That number rose to a still dispiriting 38 percent in 2011, a year in which almost twice as many Americans knew that Randy Jackson was a judge on “American Idol” as knew that John Roberts was the chief justice of the United States. A 2018 survey found that most Americans couldn’t pass the U.S. Citizenship Test. Among other failings, most respondents couldn’t identify which nations the United States fought in World War II and didn’t know how many justices sat on the Supreme Court.

Unlike my periodic rants on the subject, French isn’t sharing these statistics to bemoan public ignorance. He wants to make a different argument, namely

that the combination of civic ignorance, corrupt leadership and partisan animosity means that the chickens are finally coming home to roost. We’re finally truly feeling the consequences of having a public disconnected from political reality.

Simply put, civic ignorance was a serious but manageable problem, as long as our leader class and key institutions still broadly, if imperfectly, cared about truth and knowledge — and as long as our citizens cared about the opinions of that leader class and those institutions.

French reminded his readers of the time that Gerald Ford’s gaffe about Soviet domination of Eastern Europe made a huge difference in that campaign. As he says:

Note the process: Ford made a mistake, even his own team recognized the mistake and tried to offer a plausible alternative meaning, and then press coverage of the mistake made an impression on the public.

Now let’s fast-forward to the present moment. Instead of offering a plausible explanation for their mistakes — much less apologizing — all too many politicians deny that they’ve made any mistakes at all. They double down. They triple down. They claim that the fact-checking process itself is biased, the press is against them and they are the real truth tellers.

He follows up with several examples of Ramaswamy’s blatantly, factually incorrect (and actually ridiculous– but articulate!) statements–and the reaction of the GOP, which  “deemed him one of the night’s winners.”

He sums it up:

The bottom line is this: When a political class still broadly believes in policing dishonesty, the nation can manage the negative effects of widespread civic ignorance. When the political class corrects itself, the people will tend to follow. But when key members of the political class abandon any pretense of knowledge or truth, a poorly informed public is simply unequipped to hold them to account…

A democracy needs an informed public and a basically honest political class. It can muddle through without one or the other, but when it loses both, the democratic experiment is in peril. A public that knows little except that it despises its opponents will be vulnerable to even the most bizarre conspiracy theories, as we saw after the 2020 election. And when leaders ruthlessly exploit that ignorance and animosity, the Republic can fracture. How long can we endure the consequences of millions of Americans believing the most fantastical lies?

I told you so…..

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Clarifying The Stakes

I have often remarked upon the dramatic changes during my lifetime in what people consider “conservative.” I’ve speculated about the causes, pointed to the inconsistencies and hypocrisies of the contemporary GOP, and speculated that the current “conservative” movement (note quotation marks) is basically an intellectually incoherent expression of MAGA’s underlying fear and racism.

The fear and racism are certainly there, but recently I came across an essay in Persuasion that described an all-too-coherent philosophy underlying the current assault on the American Idea. 

Broadly speaking, there are two different kinds of contemporary American conservatism. The more familiar—traditional conservatism—holds that the founding principles and institutions of the American polity remain sound but have been distorted by waves of progressive activism that have eroded our commitment to individual liberty and limited government. The task is to preserve these fundamentals while restoring their original meaning and function. 

The second kind of conservatism claims that America was flawed from the start. The focus on individual rights comes at the expense of community and the common good, and the claim that government exists to preserve individual liberty creates an inexorable move toward moral anarchy. These tendencies have moved us so far from traditional decency and public order that there is little of worth left to “conserve.” Our current situation represents a revolution against the forces—religion, strong families, local moral communities—that once limited the worst implications of our founding mistakes. The only remedy for this revolution is a counter-revolution. Instead of limited government, we need strong government capable of promoting the common good and defending moral common sense against the threat posed by unelected elites.

This proposed counter-revolution has little to do with conservatism as traditionally understood. It seeks not to limit the flaws in our founding principles but to replace them. Specifically, it is a revolt against liberalism, the political theory rooted in the Enlightenment that inspired the Declaration of Independence. This New Right is unabashedly anti-liberal, at the level of philosophical principle as well as political practice.

The essay distinguishes between different kinds of anti-liberalism. Fascism, for example, finds legitimacy in the “culture and spirit of a specific people.”  Then there is what the essay calls integralism, defined as a distinctive form of religious anti-liberalism that originated within Catholicism.

It arose many centuries before the emergence of liberalism, as a justification for the integration of Catholicism and political power that began under the Roman emperor Constantine and was completed in 380 by emperor Theodosius I, who embraced Christianity not only as his personal religion but also as the religion of his realm. At the end of the next century, Pope Gelasius I formalized the Catholic understanding in his famous distinction between priestly and royal authority. In matters concerning religious practice and ultimate salvation, Gelasius argued, political authorities are required to submit to the authority of the Church. 

The essay proceeds to outline the history of this melding of church with state, and its eventual decline, thanks to the Protestant Reformation, the Enlightenment, and the French Revolution. While MAGA voters are highly unlikely to have heard of integralism, its resurgence among intellectuals on the Right is clearly influencing and shaping our current culture war. “Integralism” is at the root of current attacks on the very basis of the Enlightenment liberalism that undergirds America’s Constitution and Bill of Rights.

Liberal philosophy distinguishes between public and private, and prohibits government from invading the zone of personal autonomy. Liberals may argue about where the line between public and private should be drawn, but they agree that the distinction exists and–more importantly– that it is morally fundamental.

Integralists “reject freedom of religion, and they are prepared to use government power in the name of public morality to control what liberals consider private and individual decisions.” They reject the goal of a legal or public culture that is neutral– that accommodates different beliefs about morality and/or religion.

That philosphical approach explains a lot.

For Integralists, culture war is the only war: seeing neutrality as a myth, they see the battle as Manichean, a war between advocates of personal autonomy and defenders of (their version of) traditional morality. 

This explains one of the most confusing aspects of Republicans’ U-turn from their former commitment to limited government. These “common good constitutionalists” want a government with the power to impose their version of the good society on everyone.

If political power always shapes culture, as increasing numbers of traditionalists are coming to believe, they will conclude that they must seize and use this power—if necessary, without the limits they have long advocated.

It’s a war between fundamental–and irreconcilable–world-views. One is consistent with American constitutionalism; one is unambiguously not.

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Another Looming Threat

Is it time to re-examine some aspects of the U.S. Constitution? Undoubtedly. Is it incredibly difficult to amend that document in today’s polarized political environment? Yes. Does the undeniable accuracy of those observations support the growing movement to convene a Constitutional Convention?

Absolutely not.

Every so often, a reader will remind me that there is a stealth movement by far-Right activists to call such a convention–a reminder that makes the hair on the back of my neck stand up, because the goals of those ideologues are entirely inconsistent with the values of the U.S. Constitution and Bill of Rights.

A recent article from the Intelligencer explained who those activists are and what they hope to achieve.

On a recent spring morning outside the Pennsylvania State Capitol, a group of activists gathered to terminate the Constitution. Around 100 people drove in to Harrisburg from all over the state, showing up clad in white T-shirts and buttons depicting an American flag that nests COS, short for Convention of States, in the star area. Claiming endorsements from the likes of John Eastman, Sean Hannity, and Ron DeSantis, COS is a deep-pocketed right-wing movement that is quietly campaigning for states to call a constitutional convention, the first since 1787. “The government is out of control,” said Roy Fickling, a construction-industry retiree sitting on the balustrade. “It’s the only way to stop them.”

Just after 9 a.m., Rick Santorum waded into the crowd to deliver a speech about the “complete destruction” of America and the urgent need for a convention to radically amend the nation’s supreme law. “This is an existential fight,” said the Republican former Pennsylvania senator who is now a COS senior adviser. “It’s not about politics. The people on the left do not want the same America as you do. This is about good and evil.” The crowd applauded. He then went on to talk about trans issues. “The reality is this is a moment where we need patriots, just like we did in 1776.”

This effort is marketed as a move to cure what these activists see as the most pressing problems of the nation: ballooning debt and a “tyrannical” federal government.

Article V of the Constitution lays out two amendment mechanisms. The first is the one with which we are familiar. It has been used successfully 27 times. Congress passes an amendment by a two-thirds vote in each chamber, and three-fourths of the states ratify it. The second process has never been used; it requires two-thirds of the states to pass resolutions calling for a convention where delegates from the states can propose amendments.

To anyone disheartened by congressional gridlock, Article V may seem like a seductive idea. While proposed amendments would theoretically also have to be ratified by 38 states, that is cold comfort to the legal scholars who see calling a convention as a constitutional crisis waiting to happen. “The only precedent is the Philadelphia convention from 1787, and they ended up junking the Articles of Confederation and writing a whole new constitution,” said David Super, a professor at Georgetown Law. So far, COS has won 19 states of the 34 necessary to force such a convention.

The last century saw three major Article V movements, two of which reached 33 and 32 states.

While the idea may seem too outlandish to catch on, so did others. The independent-state-legislature theory made it all the way to the Supreme Court. The Second Amendment was once viewed by legal scholars as a clause regulating militias.  Abortion was a constitutional right for half a century.

We live in unsettled times…

The article identifies Meckler–the head of COS– as part of a “vast web of billionaire-funded right-wing efforts pushing radical movements to consolidate power under the guise of populism.”

The article is lengthy, delving into the background of Meckler, who comes across as a talented con man. It documents his transformation from moderate Left to hard Right–a transformation that made him useful to right-wing donors and led in turn to COS.

Meckler pitched the idea to the American Legislative Exchange Council, a clearinghouse for conservative policy, which became a key proponent, and COS began racking up state resolutions in the South and endorsements from Marco Rubio, Mike Huckabee, and James O’Keefe. In 2016, COS hosted a mock convention, where over 100 state lawmakers adopted amendments that would, among others, repeal the income tax and allow a vote of 30 state legislatures to nullify federal laws. Critics of COS “actually said something truthful,” Meckler told Mark Levin, another supporter. “They said, ‘This is intended to reverse 115 years of progressivism,’ and we say, ‘Yes, it is.’”

The Convention of States is just one more threat–as if we needed another!– to the American Idea….

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Hamilton County And An Age-Old Story…

Back in 1995, when I was still at Indiana’s ACLU, I wrote a column about a “recurring fantasy” of mine, which I described as follows: a caveman discovers that he can produce drawings of the animals he hunts on the walls of his cave. Excited by the possibilities of his art, energized by the creative act, he produces a drawing–only to have it rubbed angrily off the cave wall by someone in his tribe who declares that the depiction of animal genitalia is indecent.

The first artist encounters the first censor, and a dynamic is born that is with us still!

Here in Indiana, there has been a takeover of the Hamilton County library board by some current descendants of my imagined angry tribesman. (Hamilton County is one of the “doughnut counties” surrounding Indianapolis, which occupies all of Marion County.)The new board immediately moved to “protect” children by requiring the library staff to review all of the books available to teenagers in the Young Adult section (at an estimated cost to the taxpayers of $300,000 ). Reports are that, out of the 1,859 physical books examined thus far, 1,385 have been moved from the Young Adult section to the Adult or General section.

One of the book moved was John Green’s best-selling “The Fault in Our Stars,” and Green sent–and publicized– an appropriately outraged message to the Board, triggering a national outcry, and a local petition to “Stop Censorship at Hamilton East Public Library.” (When I last looked, that petition had garnered some 3500 signatures.) As I write this, the turmoil has resulted in the (welcome) replacement of the library board’s president, a strong supporter of “protecting” children from reading  about things they can easily access on the internet and elsewhere.

The insistence that this exercise has been in furtherance of “parental rights” is equally ridiculous; a genuine concern for parental rights would respect the rights of all parents to determine what materials their children can access–not the right of some parents to determine what everyone else’s children can read.

No one said these people are smart. Just rabid.

I confess that I have never been able to understand the frantic need of so many of our fellow-citizens to control the habits and behaviors of the rest of us–habits and behaviors that do not affect them.

Nat Hentoff once wrote that the human animal’s urge to censor is stronger than its sex drive. In my days with the ACLU, I dealt regularly with folks who were absolutely convinced that they knew better than you and me what books we should read, what art we should see, and what musical lyrics the government should allow us to hear.

For those of us who believe that ideas matter, that literature and art are intensely important activities through which humans explore ideas, censorship poses a threat to our most important values. The government that can determine which ideas are worthy of consideration– and/or the age at which we should be allowed to consider them– is a government with power over the most important of all human functions–the power of the intellect.

In my long-ago fantasy, the caveman and his critic take their respective arguments to the leader of the cave clan. The censor insists that he and his friends find the drawing indecent, and argues that allowing smut in the cave will debauch the children and undermine the clan’s community standards. Another member argues the case for the artist: a society unwilling to consider all ideas will never leave the caves, will never reach the stars. A society willing to be ruled by the fears of the many will be deprived of the genius of the few.

In my dream, the leader considers the arguments and rules in favor of freedom of artistic expression. Civil liberties are born.

That, of course, was my fantasy. It remains to be seen whether civil liberties–not to mention common sense– will prevail in Hamilton County….Or, for that matter,  elsewhere in Indiana.

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