Tag Archives: First Amendment

Restraining Power

The growing concerns about social media–especially platforms’ moderation of users’ posts–are just the most recent and visible examples of an older conundrum: how do we define and restrain the misuse of power?

When the U.S. Constitution was drafted, concerns about the infringement of individual rights focused almost entirely on government, because only government entities had the power to prescribe and proscribe individual behaviors and punish those who failed to conform. Accordingly, the Bill of Rights restrained only government (initially, only the federal government, which was seen as a greater threat than the state and local units of government that were included in its prohibitions after passage of the 14th Amendment.)

To state the glaringly obvious, in the 200+ years since passage of the original Bill of Rights, a lot of things have changed.

Governments aren’t the only entities exercising considerable authority over our lives–major corporations, a number of them global in scope, not only influence government but engage in negative behaviors that directly affect millions of people, from polluting the environment to exploiting third-world labor. Scholars have belatedly come to question whether the Bill of Rights shouldn’t be applied more broadly–to restrain all entities large enough or powerful enough to invade individual rights.

I have absolutely no idea how that might work.( It probably wouldn’t.) /That said, we are at a point where we absolutely must contend with the inordinate power exercised by private, non-governmental organizations, and especially by Facebook, Twitter, et al.

Robert Reich addressed that problem in a recent essay for the Guardian.

Twitter and Instagram just removed antisemitic posts from Kanye West and temporarily banned him from their platforms. It just goes to show … um, what?

How good these tech companies are at content moderation? Or how irresponsible they are for “muzzling” controversial views from the extreme right? (Defenders of West, such as the Indiana attorney general, Todd Rokita, are incensed that he’s been banned.) Or how arbitrary these giant megaphones are in making these decisions? (What would Elon Musk do about Kanye West?)

 Call it the Kayne West paradox: do the social media giants have a duty to take down noxious content or a duty to post it? And who decides?

As Reich quite accurately notes, these platforms, with their huge size and extraordinary power over what’s communicated, exert enormous sway over the American public. And they are utterly unaccountable to that public.

Two cases pending before the Supreme Court illustrate the underlying dilemma:

One case involves Section 230 of Communications Decency Act of 1996. That section gives social media platforms protection from liability for what’s posted on them. In that case, plaintiffs claim that social media ( YouTube in one case,Twitter in the other) led to the deaths of family members at the hands of terrorists. In another case, the plaintiffs are arguing that the First Amendment forbids these platforms from being more vigilant. That case arises from a Texas law that allows Texans and the state’s attorney general to sue  social media giants for “unfairly” banning or censoring them based on political ideology.

It’s an almost impossible quandary – until you realize that these questions arise because of the huge political and social power of these companies, and their lack of accountability.

In reality, they aren’t just for-profit companies. By virtue of their size and power, their decisions have enormous public consequences.

Reich is betting is that the Court will treat them as common carriers, like railroads or telephone lines. Common carriers can’t engage in unreasonable discrimination in who uses them, must charge just and reasonable prices, and must provide reasonable care to the public.

But is there any reason to trust the government to do a better job of content moderation than the giants do on their own? (I hate to imagine what would happen under a Republican FCC.)

So are we inevitably locked into the Kanye West paradox?

Or is there a third and better alternative to the bleak choice between leaving content moderation up to the giant unaccountable firms or to a polarized government?

The answer is yes. It’s to address the underlying problem directly: the monopoly power possessed by the giant social media companies.

The way to do this is apply the antitrust laws – and break them up.

My guess is that this is where we’ll end up, eventually. There’s no other reasonable choice. As Winston Churchill is reputed to have said: “Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.”

It’s hard to disagree. And actually, a far more aggressive approach to anti-trust would solve more problems than those we are experiencing with social media…

 

 

 

RFRA For The Rest Of Us…

Indiana’s ACLU has filed a second challenge to the state’s ban on abortion, and this is a challenge focused squarely upon the blatant hypocrisy of the U.S. Supreme Court’s  purported concern for “religious liberty.”

In a series of cases, the Court has handed down decisions favoring Christian fundamentalist doctrines that are at odds with the beliefs held by more liberal Christian denominations, let alone by adherents of other religious traditions. Justice Alito, who authored the decision in the Hobby Lobby case as well as Dobbs, has clearly signaled his belief that his particular definition of “religious belief”  deserves priority–and he now has four other theocratically-inclined colleagues who agree.

Alito’s definition of “religious freedom” as freedom for state-level lawmakers to impose conservative Christian dogma on Americans who hold very different “sincere beliefs,” is inconsistent with both constitutional jurisprudence and common sense. It’s “freedom for me, but not for thee”–and a not-so- tacit endorsement of the MAGA Republican claim that the United States is a “Christian nation” that should be dominated by their particular version of Christianity.

Ironically, the ACLU has filed this lawsuit under the state’s RFRA law–a law originally ballyhooed by those same Christian Warriors.

“Indiana’s RFRA law protects religious freedom for all Hoosiers, not just those who practice Christianity,” said Ken Falk, ACLU of Indiana Legal Director. “The ban on abortion will substantially burden the exercise of religion by many Hoosiers who, under the new law, would be prevented from obtaining abortions, in conflict with their sincere religious beliefs.”

The complaint points out that the new law violates the beliefs of the Muslim, Unitarian Universalist and Episcopalian faiths, as well as those who follow Paganism. (Rather obviously, it also violates the liberties of  the growing numbers of non-religious Americans.)

As I have previously argued,  a very large number of Americans believe that “liberty” is defined as the right of all citizens to follow the doctrines of their particular religions. When applied to the issue of abortion, any rational understanding of liberty means that people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it are equally free to follow their beliefs.

A free country–a country that takes liberty seriously–does not empower legislators to  decide what prayer you say, what book you read, who you marry, or whether and when you procreate. Perhaps the most eloquent statement of that constitutional principle was that of Justice Jackson in West Virginia Board of Education v. Barnette. In a much-quoted portion of his decision, Justice Jackson wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Justice Alito’s decision in Dobbs essentially reverses Jackson’s 1943 definition of the meaning and  intended operation of the Bill of Rights–a definition that has been endorsed by the courts for decades. Jackson’s definition has been taught in the nation’s law schools and is firmly embedded in the popular culture. In America, We the People make lots of decisions about our governance.  We vote on who will represent us in our various legislative bodies, and–depending upon the state– participate in referenda and recalls.

We don’t vote on fundamental rights.

As any first-year law student (or anyone who took any of my  Law and Public Policy classes) will confirm, the Bill of Rights is taught as a “counter-majoritarian” document. That means that, while a majority of voters can influence innumerable policies, that majority does not get a vote on whether it is permissible to deny other Americans the fundamental rights protected by the Bill of Rights.

We don’t get to vote on our neighbors’ First Amendment right to the free exercise of their religion.

A contrary decision by Indiana Courts would confirm Alito’s profound departure from and disrespect for the essential purpose of the Bill of Rights–and his obvious contempt for people who hold religious beliefs contrary to his own.

It would also highlight the hypocrisy of those Hoosiers who defended RFRA on the grounds that it protected “sincerely held” religious beliefs.

 

 

Religious Chutzpah

Regular readers of this blog will have noticed that–ever since the Supreme Court’s decision in DobbsI’ve been harping on the evisceration of a doctrine called “Substantive Due Process,” also known as the right to privacy. Without going back through the jurisprudence that established that doctrine, let me just paraphrase it: government must respect citizens’ right to make our own decisions about how to live our lives, so long as  those decisions aren’t harming others.

Decisions about procreation are hardly the only areas protected from government overreach by the Bill of Rights. Your choice of religious conviction and my choice not to be a believer are both protected–mostly by the religion clauses of the First Amendment, but also by a right to privacy that keeps government from dictating so personal a choice. Religious liberty is based upon that same respect for the integrity of the individual conscience.

However, the current Court seems intent upon elevating the rights of believers over the rights of the rest of us.

Just this last term, the Justices permitted a theatrically pious coach to pray on his school’s fifty yard line, and ruled in favor of a Christian group wanting to raise its flag at Boston’s City Hall.

The Hill has reported on a pending lawsuit  encouraged by earlier Roberts Court cases that weakened the wall between church and state.

A Texas lawsuit that hopes to eliminate mandated health insurance coverage of birth control, HIV medication, sexually transmitted disease (STD) testing and more has quietly been pushing forward through the court system and could eventually end up in front of the U.S. Supreme Court.

In the case of Kelley v. Becerra, two plaintiffs from Texas argue that the current structure of the Affordable Care Act (ACA) mandates health insurance providers to cover certain preventative care they argue they do not need and that conflict with their religious beliefs — specifically, contraceptive coverage, STD testing and HIV medications Truvada or PrEP.

One of the lawsuit’s arguments leans on the Religious Freedom Restoration Act, which states governments should not substantially burden religious exercise without a compelling justification. Plaintiffs argue this right has been violated as both are Christian and unwilling to buy health insurance that subsidizes, “abortifacient contraception or PrEP drugs that encourage homosexual behavior and intravenous drug use.”

The lawsuit also takes issue with how the ACA defines preventative care, a decision-making process that has been assigned to various groups, including the Advisory Committee on Immunization Practices, the Preventative Services Task Force and the Health Resources and Services Administration.

If these religious zealots prevail–and they probably will at the District Court level, since they’ve filed the case in the courtroom of the radical Texas judge who previously ruled that the ACA was unconstitutional–health insurers would no longer be required to cover preventive care with no copay. They could either opt out of offering those services altogether, or begin charging for them.

Currently,most health insurance plans include coverage of preventative care like birth control and HIV medicines. Plaintiffs complain that their options for plans without those elements are few and far between, denying them freedom to exercise their religious beliefs.

Health care providers have raised alarm bells over Kelley v. Becerra, like the American Medical Association (AMA), alongside 20 other medical trade groups, which stressed how popular the preventative care measure of the ACA has been — with an estimated 151.6 million people receiving free preventative care in 2020 alone.

An adverse ruling would mean millions of Americans would lose access to “vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia, and hearing, as well as well child visits and access to immunizations critical to maintaining a healthy population,” wrote the AMA.

A coalition of 20 attorneys general has also filed an amicus brief in Kelley v. Becerra arguing–among other things– that public health outcomes have significantly improved since the ACA’s preventative services provision was implemented.

Let’s give the plaintiffs the benefit of the doubt, and accept that these provisions–provisions that have improved the health of millions of Americans– are contrary to their “sincerely held” religious beliefs. Do they not have options other than denying critical health care to Americans who are currently benefitting from access to preventative care? Couldn’t they establish a “faith-based” insurance company that would cater to their needs? (Such a company would have a strong argument for being exempted from the federal requirements they insist are inconsistent with their religious doctrines.) Or they could opt to self-insure.

Instead, they argue that their religious “rights” trump the health of millions of Americans  who currently have free access to cancer screenings, birth control and childhood vaccinations. (Google chutzpah.)

If they prevail, thank the current “Christians” on the Supreme Court.

 

 

 

The Library And The Culture War

Over the years, I have come to admire two professions above most others: social workers and librarians. The social workers I’ve come to know are simply wonderful human beings–compassionate, caring and non-judgmental. (If we admire traits we personally lack, that would explain my awe about that “non-judgmental” thing…) The librarians I know are dedicated protectors of the First Amendment, and absolutely fearless defenders of our right as individuals to access whatever information interests us.

The traits of both professions are obviously anathema to the White Christian Nationalists who control today’s GOP . Those culture warriors are especially intent upon controlling what other people can read, and that single-minded devotion to cultural control brings them into fairly regular conflict with librarians and the mission of the nation’s libraries, so I suppose I shouldn’t have been shocked by a recent headline from The Guardian: US library defunded after refusing to censor LGBTQ authors: ‘We will not ban the books.’

A small-town library is at risk of shutting down after residents of Jamestown, Michigan, voted to defund it rather than tolerate certain LGBTQ+-themed books.

Residents voted on Tuesday to block a renewal of funds tied to property taxes, Bridge Michigan reported.

 The vote leaves the library with funds through the first quarter of next year. Once a reserve fund is used up, it would be forced to close, Larry Walton, the library board’s president, told Bridge Michigan – harming not just readers but the community at large. Beyond books, residents visit the library for its wifi, he said, and it houses the very room where the vote took place.

“Our libraries are places to read, places to gather, places to socialize, places to study, places to learn. I mean, they’re the heart of every community,” Deborah Mikula, executive director of the Michigan Library Association, told the Guardian. “So how can you lose that?”

What was the library’s sin? It refused to remove materials about sexual orientation from its shelves–materials that the residents asserted were “grooming” children to adopt a “gay lifestyle.”

The controversy in Jamestown began with a complaint about a memoir by a nonbinary writer, but it soon spiraled into a campaign against Patmos Library itself. After a parent complained about Gender Queer: a Memoir, by Maia Kobabe, a graphic novel about the author’s experience coming out as nonbinary, dozens showed up at library board meetings, demanding the institution drop the book. (The book, which includes depictions of sex, was in the adult section of the library.) Complaints began to target other books with LGBTQ+ themes.

One library director resigned, telling Bridge she had been harassed and accused of indoctrinating kids; her successor, Matt Lawrence, also left the job. Though the library put Kobabe’s book behind the counter rather than on the shelves, the volumes remained available.

“We, the board, will not ban the books,” Walton told Associated Press on Thursday….

The library’s refusal to submit to the demands led to a campaign urging residents to vote against renewed funding for the library. A group calling itself Jamestown Conservatives handed out flyers condemning Gender Queer for showing “extremely graphic sexual illustrations of two people of the same gender”, criticizing a library director who “promoted the LGBTQ ideology” and calling for making the library “a safe and neutral place for our kids”. On Facebook, the group says it exists to “keep our children safe, and protect their purity, as well as to keep the nuclear family intact as God designed”.

I’m sure the person who wrote that had spoken to God personally about the threat. (That’s sarcasm. I admitted I’m judgmental…)

Apparently, libraries across the country are facing a surge in similar demands to ban books. The American Library Association has identified 729 challenges to “library, school and university materials and services” just in the last year–and an estimated 1,600 challenges or removals of individual books. That figure was up from 273 books the year before.

“We’re seeing what appears to be a campaign to remove books, particularly books dealing with LGBTQIA themes and books dealing with racism,” Deborah Caldwell-Stone, head of the ALA’s office for intellectual freedom, told the Guardian last year.

There is certainly “grooming” going on, but those responsible aren’t trying to sell small children on the glories of homosexuality, or destroy what’s left of the nuclear family. The real “grooming” has been done by hate-mongers like Alex Jones, the late and non-lamented Rush Limbaugh, Tucker Carlson and his fellow-travelers on Fox News–aided and abetted by fundamentalist churches and  various Rightwing organizations.

The GOP’s groomers play to the racism, misogyny and homophobia of their White Christian Nationalist base, encouraging them to direct their hysterical fear of cultural change at the nation’s libraries.

In this fight, my money is on the librarians.

 

Performative Religion Versus The Real Thing

Calling something “performative” is a nicer way of identifying what’s phony–of calling out the posturing of politicians pretending to care about governing, and especially “Christians” pretending they are acting out of genuine faith.

I recently encountered two unrelated examples of that calling out. The first was an editorial from Religion News Service, referencing the just-argued Supreme Court case of the football coach who insisted on praying on the 50-yard line.

That coach, Joe Kennedy (absolutely NO relation!), sued a school district in Washington state after it prohibited him from leading public prayers immediately following games. The editorial didn’t focus on the constitutional argument; instead, the author pointed out that  genuine believers are ill-served by public expressions in secular settings.

This — more than any legal reasoning — is the judgment believers are called on to make. In the exercise of liberty, we can recall the words of St. Paul: “’All things are lawful,’ but not all things are helpful. ‘All things are lawful,’ but not all things build up.” 

Ostentatious public prayers do not edify. If anything, they detract from serious Christian devotion. As with street-corner preachers who are well within their right but convince no one, Kennedy’s public postgame prayers were likely little more than a sideshow. The law may broadly permit it, but Christianity does not require it.

The essayist pointed to scriptural evidence that “Christ himself not only does not require showy, potentially coercive public prayers — he teaches against them.” Kennedy’s prayers, he notes, “may have provided psychological uplift to him, but they were not meaningful exercises in Christian faith and devotion.” And he worries that “emboldened conservative justices” will “open the door to more nominal, cultural Christianity. It seems that in the era of former President Donald Trump and his judges, that’s all so-called conservative Christians really want.”

Research by political scientists and religion scholars alike has documented the use of precisely that “cultural Christianity” by White Christian Nationalists intent upon retaining their status as the “real Americans.” Their panic about “replacement” and loss of cultural hegemony is producing ugly accusations of “grooming” by LGBTQ citizens, and other despicable charges defended as protected expressions of religious piety.

Which brings me to the really excellent example of how genuinely religious people can and should respond.

Michigan State Senator Mallory McMorrow describes herself as a “straight, white, Christian, married, suburban mom.” She had been accused by a GOP colleague of being a “groomer,” the latest right-wing slander against anyone who supports the rights of LGBTQ children. Rather than ignoring the accusation, or walking back her support, she grounded her position in her own faith.

  “I want every child to feel seen, heard, and supported,” she said, “not marginalized and targeted if they are not straight, white, and Christian.”

As the author of the linked article pointed out, 

To understand the power of McMorrow’s words, you have to understand that “straight, White and Christian” is the default cultural and political setting in this country. Throw in “male” and you’d have the top of this pyramid. Just ask Tucker Carlson.
 
When you’re none, or not all, of those identities, you’re made to feel it. Your intellect, dignity and value are called into question. Demagogues gin up fear of you for electoral gain. Your very life becomes a political piñata whacked around by people who don’t have to live with the consequences of what they have wrought. Look at the anti-trans legislation littering the land or the “don’t say gay” law in Florida.

Activists who aren’t “straight, white and Christian” have pushed back against bigotry for many generations, and they have secured hard-won advances. But especially in this new front in the United States’ oldest culture war, those voices could use some backup. Enter McMorrow. …

The author makes an important point: McMorrow’s response should be a “blueprint for Democrats who are accustomed to cowering in fear of Republican culture war attacks.”

Too many national Democrats are letting the incipient “groomer” charges go unchallenged or are assuming they’re too ridiculous to gain traction. They’re ridiculous, yes — but that doesn’t mean they can’t gain traction. (Have you seen today’s Republican Party?)

I am not religious, and I have frequently expressed contempt for self-identified “religious” figures who are intent upon imposing their purported beliefs on others. Like Coach Kennedy, their public expressions of piety are purely performative. That said, I have great respect for people who  genuinely look to their religious traditions for lessons on what constitutes moral and ethical behavior, and for guidance on how they should treat their fellow humans.

There was a saying “back in the day” to the effect that the religious right is neither. We need more people like Mallory McMorrow, who are positioned to illustrate what the real thing looks like.