The assault on democracy and rationality isn’t just at the federal level.
At the start of every session, the culture warriors in Indiana’s terrible legislature introduce all kinds of wacky and extreme bills. Some of them are so wacky and so extreme that they go no farther. They don’t even get committee hearings.
Of course, lots of perfectly reasonable measures–even obviously excellent ones, if sponsored by Democrats–also go to the bill graveyard.
Media folks who cover the statehouse have learned not to take bills seriously until there are indications that they have some chance of actually passing. That should be our reaction to House Bill 1136, which has received a good deal of publicity and generated significant anguished pushback. H.B. 1136 provides that, if more than 50% of students who live within a school corporation’s boundaries are enrolled in a school that isn’t operated by that school corporation, “the school corporation must be dissolved and all public schools of the school corporation must be transitioned to operating as charter schools.” The bill establishes a new governing board and procedures for dissolving and reorganizing the school corporation.
I tend to lump this bit of legislative nastiness (it’s clearly aimed at urban schools that serve minority and low-income kids) in with the other looney-tune measures that will go to the big bill cemetery in the sky, but it does trigger several of my pet peeves, the most “peevish” of which is lawmakers’ persistent war on public education.
Before I focus on recent evidence bolstering my argument that vouchers are simply a way to evade the First Amendment and allow legislators to send tax dollars to religious schools, I need to focus on a preliminary pet peeve: the public discourse that makes no distinction between charter schools and the private schools that accept vouchers.
Charter schools are public schools. They operate under restrictions that don’t apply to private schools (like the Constitution). Overall–depending upon their sponsorship and management–their performance has been positive. That’s overall, but–just as with traditional public schools–there are exceptions. (Most of the problems, according to what I’ve read, have come from charters managed by private, for-profit companies.)
Voucher-accepting private schools are another matter entirely, as I have repeatedly documented.
In an article titled “On a Mission From God: Inside the Movement to Redirect Billions of Taxpayer Dollars to Private Religious Schools,” the report focused on the religious underpinnings–and successes–of the voucher movement. The article highlighted three conclusions.
The Ohio Model: Rarely seen letters show how the voucher movement started in the 1990s as a concealed effort to finance urban parochial schools and expanded to a much broader push.
Helping the Affluent: An initiative promoted as a civil rights cause — helping poor kids — is increasingly funneling money to families who already easily afford private school tuition.
The Voucher Deficit: Expanding programs threaten funding for public schools and put pressure on state budgets, as many religious-based schools enjoy new largesse.
I really urge you to click through and read the entire hair-raising report, which documents the real purposes of educational vouchers: they are tools meant to enrich religious institutions and the well-to-do, and undermine separation of church and state.
The risks of universal vouchers are quickly coming to light. An initiative that was promoted for years as a civil rights cause — helping poor kids in troubled schools — is threatening to become a nationwide money grab. Many private schools are raising tuition rates to take advantage of the new funding, and new schools are being founded to capitalize on it. With private schools urging all their students’ families to apply, the money is flowing mostly to parents who are already able to afford tuition and to kids who are already enrolled in private schools. When vouchers do draw students away from public districts, they threaten to exacerbate declining enrollment, forcing underpopulated schools to close. More immediately, the cost of the programs is soaring, putting pressure on public school finances even as private schools prosper. In Arizona, voucher expenditures are hundreds of millions of dollars more than predicted, leaving an enormous shortfall in the state budget. States that provide funds to families for homeschooling or education-related expenses are contending with reports that the money is being used to cover such unusual purchases as kayaks, video game consoles and horseback-riding lessons.
Strategists behind this effort started with targeted programs that placed needy kids in parochial schools. Then they fought to expand the benefits to far richer families — “a decadeslong effort by a network of politicians, church officials and activists, all united by a conviction that the separation of church and state is illegitimate.”
Louisiana just passed a manifestly unconstitutional law requiring the posting of the Ten Commandments in public school classrooms. History really does repeat itself. I’ve addressed similar efforts multiple times over the years.
Here’s one from 1996.
I suppose it was only a matter of time until Indiana became embroiled in one of the more recent church-state controversies: the movement to post the Ten Commandments on the walls of courtrooms and government buildings throughout the country. It began in Alabama with a judge who defied clear Supreme Court rulings (nothing like a judge who decides that in his courtroom, laws he doesn’t like just won’t be followed). The governor of Alabama has taken an Orville Faubus approach to two Federal Court rulings requiring the judge to follow the law and remove the Commandments, and a few months ago there was a memorable rally in favor of the judge’s position which was enlivened by the presence of several hundred “bikers for Christ.”
Here in Indiana, the Hendricks County and Grant County Commissioners have voted to post the Commandments in their respective county courthouses. The officials are clearly aware that their actions are illegal, since the Resolution passed by each of them begins with a defiant declaration that the Supreme Court is wrong about separation of church and state.
Proponents of posting the Commandments offer a number of reasons: America needs to return to God; the Commandments aren’t really religious, but moral; and separation of church and state isn’t really in the Bill of Rights, but was invented by the satanic ACLU. Easily the most straightforward explanation was the one offered by J.D.Clampitt ( I am not making his name up), a Hendricks County Commissioner. “When Christians were in the minority,” Mr. Clampitt explained, “we were thrown to the lions. Now that we are the majority, it is time for us to be the lions.”
Mr. Clampitt makes explicit what most other members of the religious political extreme would deny: that the persistent attempts to eviscerate the First Amendment are part and parcel of an agenda that is far more menacing than the right wing’s lurid fabrications about the “gay agenda.”
Of course, a gay agenda does exist, just as a religious right agenda does. It may be instructive to compare them.
Gays want the right to be treated like everyone else. Gays and Lesbians want their job security to depend upon job performance rather than sexual identity; they want to marry and establish families that are recognized by government as such. They want to file taxes and receive government benefits on the same basis as everybody else.
The political religious extremists, however, want to be treated UNequally. Ironically, they are the ones demanding “special rights”– the right to have their beliefs endorsed by government, to have their religious tenets imposed by law (one need look no further than their insistence that their position on abortion and their disapproval of homosexuality be the law of the land). In Orwell’s famous phrase, they want to be “more equal” than others.
They want–as Clampitt readily admitted–to be the lions.
And here are a few paragraphs from one in 1997.
A new organization based in Auburn, Indiana, called the “Christian Family Association” argues that the Supreme Court has consistently misconstrued the First Amendment.
According to the Supreme Court (and generations of historians and legal scholars) the Establishment Clause of the Bill of Rights prohibits government–and only government–from sponsoring or endorsing religious beliefs. The Free Exercise clause protects religious expression from government interference. While the First Amendment originally applied only to the federal government, the Fourteenth Amendment applied the Bill of Rights to state and local governments as well.
The Christian Family Association claims that the refusal of government to prioritize Judeo-Christian religious views discriminates against them. In effect, they argue that their right to free exercise is violated unless there is explicit government endorsement of their religious beliefs. Most reasonable people would distinguish between government neutrality in matters of belief and acts of religious discrimination.
Some proponents argue that the Ten Commandments are not religious, but form a part of our general moral framework and should thus be viewed solely as an historic document. The text–as a clergyman friend of mine recently noted–refutes any such reading. “Thou shalt have no other Gods before me,” “You shall not make for yourselves an idol…for I the Lord your God am a jealous God,” “Thou shalt not take the name of the Lord thy God in vain..,” “Remember the Sabbath day to keep it holy,” are not generalized moral tenets.
Given the Hoosier ascendance of Christian Nationalists like Micah Beckwith, Jim Banks and Todd Rokita, I wouldn’t be surprised to see a similar effort mounted here once again.
Americans have always engaged in disinformation. Political foes have historically disparaged each other; activists of the Left and Right have used pamphlets and newspapers, then radio and television, to spread bile and bigotry. Those of us committed to the principles of free speech have argued that–whatever the damage done by propaganda and lies (Big and small), allowing government to censor the marketplace of ideas would be a greater danger.
Nevertheless, It’s impossible to ignore the fact that today, technology–especially the Internet–has vastly increased the ability to disseminate lies, misinformation, disinformation and propaganda, and I suspect I am not the only free speech purist who worries about the growth of widely-used sources that enable–indeed, invite and encourage– inaccurate, malicious and hateful communication.
Elon Musk’s takeover of Twitter (now “X”) is a prominent example. Musk dispensed with the site’s previous content moderation policies, invited Trump to return, and recently welcomed back the far-right Austrian who received donations from and communicated with the Christchurch terrorist before the 2019 attack. Since Musk purchased the social media site, such far right users have proliferated.
The founder of the so-called Identitarian Movement, Martin Sellner, who preaches the superiority of European ethnic groups, was banned from Twitter in 2020 under the former management along with dozens of other accounts linked to the movement amid criticism over the platform’s handling of extremist content.
The problem became especially acute following Hamas’s Oct. 7 attack on Israel when the platform was flooded with antisemitic and anti-Muslim misinformation. It’s like watching a once-nice neighborhood go to seed, with well-maintained houses turning into ramshackle drug dens.
That deterioration of the neighborhood has been confirmed by organizations tracking digital bias:
The Center for Countering Digital Hate reported a surge of extremist content on X since Musk took over in 2022 and fired most of the platform’s content moderators. The center found tweets decrying “race mixing,” denying the Holocaust and praising Adolf Hitler. The thin-skinned tech mogul responded by filing suit; early indications are that the federal judge hearing the case is skeptical of X’s claims.
The focus of Boot’s article wasn’t on the Free Speech implications of bigotry spewed by widely-used social media platforms, but on the fact that taxpayers are essentially subsidizing this particular cesspool.
What galls me is that, as a taxpayer, I wind up subsidizing X’s megalomaniacal and capricious owner, Elon Musk. His privately held company SpaceX is a major contractor — to the tune of many billions of dollars — for the Defense Department, NASA and the U.S. intelligence community. He is also chief executive of Tesla, which benefits from generous government subsidies and tax credits to the electric-vehicle industry.
Musk needs to decide whether he wants to be the next Donald Trump Jr. (i.e., a major MAGA influencer) or the next James D. Taiclet (the little-known CEO of Lockheed Martin, the country’s largest defense contractor). Currently, Musk is trying to do both, and that’s not sustainable. He is presiding over a fire hose of falsehoods on X about familiar right-wing targets, from undocumented immigrants to “the woke mind virus” to President Biden … while reaping billions from Biden’s administration!
Musk is a “front and center” example of the conundrum posed by “Big Tech.” His obvious emotional/mental problems make it tempting to consider him a singular case, but his misuse of X in furtherance of his narcissism is simply a more vivid example of the problem, which is the ability of those who control massive platforms to distort the marketplace of ideas to an extent that has previously been impossible.
I have absolutely no idea what can or should be done to counter the threat to democracy, civic peace and reality that is posed by social media platforms and propaganda sites masquerading as “news.” Wiser heads than mine need to fashion regulations that require responsible moderation without infringing upon the genuine exchanges of opinion–even vile opinion– protected by the First Amendment. Figuring out how to walk that line is clearly beyond my pay grade.
One thing that government can do, however, is refrain from financing people who, like Elon Musk, are using our tax dollars to create division and foster bigotry. The First Amendment may protect his cesspool from sanctions, but it certainly doesn’t require financial support. As Boot concludes, Musk
can espouse views that many Americans find abhorrent, or he can benefit from public largesse. He can’t do both — at least not indefinitely.
The current wave of book banning efforts I referenced a few days ago reminded me of an essay I wrote about the importance of intellectual freedom some twenty-five years ago, for an ALA publication. I dug it out, and decided the observations were still valid–and, unfortunately, even more relevant. So– with apologies for both the length and self-citation– I’m sharing it.
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Not too long ago, I had a conversation with a librarian involved professionally with issues of intellectual freedom. “Sometimes,” she said, “I get so tired of it. I wonder why I continue to fight.” I’ve thought about that conversation several times; if I could do an instant replay, I think I would tell her that I know why she keeps at it. It’s because it is so important.
I spent six years as Executive Director of the Indiana affiliate of the American Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.
If that statement seems extravagant, consider both the ideological basis of liberal democracy and the nature of contemporary threats to that tradition.
Our national history would have been impossible without the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.
Current assaults on that worldview come primarily, although certainly not exclusively, from communitarians of both left and right. Michael Sandel, Mary Ann Glendon and others complain that the American emphasis on individual rights has gone too far, that it is time to readjust the balance between individual liberty and the “common good.” The “common good” is presumably to be defined collectively; that is, by the majority.
There is enormous appeal to this argument. In a world that seems increasingly complex, impersonal, and litigious, a world over which individuals have less and less control, the notion of “community,” like “family,” offers nourishment and empowerment. Who does not long, in some part of her psyche, for a warm family, friendly neighborhood and supportive tribe, where one is valued and/or unconditionally accepted, and where everyone shares the same life goals and values? Freud suggested that the need to lose oneself in a collective identity is the most ancient, persistent and universal force operating on the human species. The problem, of course, is that majorities can be every bit as tyrannical as solitary despots, and there is no guarantee that my family’s values will be the ones that prevail, or that my tribes’ folkways will be the ones that are followed. The fundamental issue in every society is where to strike the balance between human liberty and communal norms. Ultimately, the debate comes down to a conflict between libertarian and collectivist visions of the good life.
In this war over competing worldviews, intellectual freedom is the battlefront. Discussions of the First Amendment often proceed as if the expressive freedom provisions are separate from the religious liberty clauses. They aren’t. In fact, the First Amendment rests upon a magnificent unifying premise: the integrity and inviolability of the individual conscience. The First Amendment is really an integrated whole, protecting our individual rights to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences. It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.
Our whole experiment with democratic governance rests on that foundation. As Alexander Mieklejohn famously observed, a nation that is afraid of an idea–any idea–is unfit for self-government. Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.
Those who oppose free expression rarely, if ever, see themselves in opposition to the western liberal democratic tradition. Most of the people who want to ban the book or painting, who want to protect the flag or the Virgin Mary from desecration, are simply acting on their belief in the nature of the public good. Censors see unrestrained freedom as a threat to the social fabric, while civil libertarians believe the greater danger consists in empowering the state to suppress “dangerous” or “offensive” ideas. Censors see no reason to protect expression of low value–no point in protecting the marketplace for the exchange of shoddy goods. They have enormous difficulty understanding the difference between protection of the principle of free speech and an implicit endorsement of the offensive material at hand. And they have little or no appreciation for the argument that once one hands over to the state the authority to decide which ideas have value, no ideas are safe.
I spent my years at the ACLU battling the usual, recurring attempts to control what others might read, hear or download. I attended a public meeting in Valparaiso, Indiana, where an angry proponent of an ordinance to “clean up” local video stores called me “a whore.” I was accused of abetting racism for upholding the right of the KKK to demonstrate at the Statehouse. I was criticized for failure to care about children when I objected to a proposal restricting minors’ access to library materials. In each of these cases, and dozens of others, the people who wanted to suppress materials generally had the best of motives: they wanted to protect others from ideas they believed to be dangerous. To them, I appeared oblivious to the potential for evil. At best, they considered me a naïve First Amendment “purist;” at worst, a moral degenerate.
My introduction to the politics of free speech really came several years before my stint at the ACLU, when I was retained as local counsel to the plaintiffs in American Booksellers v. Hudnut. The case involved a challenge to an ordinance drafted by Catherine MacKinnon, a law professor, and Andrea Dworkin, a feminist author. Both are well known crusaders against pornography, which they define quite differently than the law defines obscenity, and which they argue is more harmful to women than to men. Their ordinance attempted to define as action (rather than expression) sexually explicit materials depicting the “subordination of women.” Such “action” was then treated for legal purposes as sex discrimination. (“When I use a word,” said Humpty Dumpty, “it means exactly what I say it means!”) MacKinnon and Dworkin had shopped their proposal around the country without much success before they found eager proponents in Indianapolis.
While the Courts would make short work of the ordinance, the politics of its passage was an eye-opening experience. Bill Hudnut was, and remains, a close personal friend; I had been the Corporation Counsel (chief lawyer) in his administration. To this day, despite lengthy conversations, he does not see the implications of the ordinance he signed. Bill had been an active Presbyterian minister before assuming office, and simply was appalled by materials that he felt degraded women. When MacKinnon and Dworkin enlisted a local female Councilor on behalf of their pet project to “protect” women, he was supportive. The Councilor has not been identified with women’s causes either before or after her sponsorship of the ordinance. She has, however, been supportive of efforts to restrict children’s access to videos in the public libraries, and has generally been an ally of the religious right. Her alliance with MacKinnon and Dworkin, widely considered to be “radical feminists,” was surreal.
On the evening the vote was taken, busloads of people from fundamentalist churches filled the Council chambers. To the eternal credit of Indianapolis’ women’s organizations, there was no support from local feminists. Only three people had been given permission to speak against passage–me, as a courtesy shown to a former member of the administration; Bill Marsh, a professor of Constitutional law who was then Vice-President of Indiana’s ACLU; and Sam Jones, the Executive Director of the Urban League. Even Councilors who had great qualms about the ordinance were unwilling to stand against the sea of faces from area churches. (The trouble with representative government, as a friend once bitterly remarked, is that it is representative.) One after another, uncomfortable Councilors rose to “explain” their votes; my favorite came from a longtime friend, who said that —while he had “great respect for Mrs. Kennedy’s legal opinion”–he wanted the record to show that he was “against pornography.” The crowd cheered approvingly.
Most of those who voted for the ordinance knew it stood virtually no chance in court. They were willing to spend some tax dollars to defend it, in order to avoid the pain of opposing the righteous folks who had taken the time and trouble to attend the meeting. And the courts did as expected; Judge Sarah Evans Barker issued an eloquent, ringing endorsement of the principles of free speech in her District Court opinion striking down the measure. The Seventh Circuit and Supreme Court each affirmed, and the case has since become a staple in courses on Free Speech and Constitutional Law.
In many ways, American Booksellers v. Hudnut is a perfect example of what the Founders feared when they warned of “the tyranny of the majority” and the need to guard against popular passions. The majority of citizens saw the debate in very simple terms, as did my Councilor friend: one is either for or against “pornography.” Quibbles about what pornography is, concerns about vagueness or over-breadth, were dismissed as lawyer weaseling; like Potter Stewart, they might not be able to define pornography, but they knew it when they saw it.
For civil libertarians, of course, the issue was very different. We were not arguing for the value of pornographic speech–although we were more open to the possibility that pornographic expression might, in fact, have some value. The issue was–and is–our right to decide for ourselves what books we shall read, what ideas we shall consider, what opinions we shall hold, free of government interference. Once the state asserts a prerogative to determine which ideas we may entertain, the balance has shifted from the right of the individual to the power of the government. At that point, citizens no longer have rights, but privileges that may be revoked whenever the political winds shift. For me as a civil libertarian, the issue is not which books I read; the issue is who decides which books I read?
The western democratic tradition literally depends upon the answer to that question.
Those of us who understand the nature of the debate over intellectual freedom in this way must contend with a formidable deficit in citizenship education. Both at the ACLU and at IUPUI, where I currently teach law and public policy, I have encountered widespread ignorance of the most basic elements of the American constitutional system. We desperately need to improve understanding of the theory of limited government and individual rights –not so that people will necessarily come to the same conclusions I reach, but so that we can at least argue about the same issues.
People try to remove materials from library shelves or the corner video store because they find the materials offensive. They try to prevent Klan marches because they disagree strongly with the hateful message of the Klan. Their arguments are against these particular ideas. They are not generally trying to strengthen the power of the state, nor intending to circumscribe the exercise of personal moral autonomy. Civil libertarians see those outcomes as inevitable consequences of censorship, however, and so those are the issues we address. In a very real sense, it is a case of culture warriors talking past each other.
People like my librarian friend, who see the fundamental relationship between the marketplace of ideas and self-government, who recognize the holistic nature of individual rights, simply must keep trying to make those connections visible to the general public. We must all work to raise the level of familiarity with the underlying principles of the Constitution and the Bill of Rights. We must agitate for more and better government instruction in our schools, and we must insist on more honest discourse from our political leaders and the media. We must constantly reinforce the lesson that the proper response to a bad message is not government censorship, but free citizens offering a better message.
Somehow, we must get the general public to understand that when we use the power of the state to decide what citizens may read or view, we aren’t censoring smut, or protecting children, or prohibiting blasphemy, or respecting the flag. We are undermining the values that lie at the very core of our national identity.
In a comment a couple of days ago, Sharon referenced a truly appalling situation in Floyd County, Indiana. She’d received a request for a donation from the Indiana Sheriff’s Association. The newsletter accompanying the request profiled a program instituted by the sheriff of Floyd County: Residents Encountering Christ. The newsletter described a 3 day retreat, reporting that Sheriff Bush “went in and talked to inmates, sharing his faith and encouraging them in theirs. In all, 41 inmates were baptized during this event. Local news media took note of the program’s success.”
As Sharon wrote, “I’m not sure which I find more appalling, that a law enforcement officer uses his position of power to proselytize to inmates or that local ‘journalists’ consider baptisms achieved under these conditions to be ‘a success.'”
I am equally appalled.
Law enforcement officers assume an obligation to abide by the Constitution. There is a very lengthy string of legal precedents confirming the lawlessness–and cluelessness– of Sheriff Bush’s behavior.
That cluelessness extended to the news coverage.According to the local News and Tribune (paywall),
On July 24th, 41 Inmates at the Floyd County Jail that volunteered to take part in Residents Encounter Christ (REC) were baptized. What a powerful moment to witness!
One has to be truly naive–or blissfully unaware of the reality of power relationships–to believe that inmates “volunteered.” (As numerous women can attest, when someone with authority to make your life miserable “requests” some “accommodation,” it’s hard to refuse.)
There is absolutely no legal argument supporting Sheriff Bush’s appalling conduct. Numerous Supreme Court opinions have echoed Justice Black’s words in Engel v. Vitale:
The constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.
That case considered the constitutionality of a rule promulgated by the New York State Board of Regents, authorizing public schools to hold a short, “voluntary” prayer at the beginning of each school day. The Court held that state laws permitting prayer “must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs.”
It is true–and very troubling–that the current Supreme Court has eroded previous First Amendment jurisprudence. But even those regrettable decisions don’t come close to making Sheriff Bush’s activities permissible. Perhaps someone should share these paragraphs from Justice Black’s decision with the Sheriff.
By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power.
The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say – that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.
Sponsorship of religious activity by a government official is unconstitutional.
Floyd County has a Sheriff who is either ignorant of the Constitution or willing to ignore it. In either case, he’s unfit for public office.
