Skokie

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The New York Times (#WHOA) probes ACLU's move away from First Amendment liberalism

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The New York Times (#WHOA) probes ACLU's move away from First Amendment liberalism

I don’t know about you, but The New York Times was the last place that I expected to see a long news feature about disturbing trends at the American Civil Liberties Union away from its proud history of First Amendment liberalism.

I am sure that some ACLU insiders must have felt the same way, especially in light of recent headlines about the rising power of a generation of woke journalists at the Times. The pot calling the kettle black?

But there was no way around the contents of that dramatic double-decker headline the other day:

Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis

An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important.

As the headline states, the emphasis in this report is about free speech. Maybe it was too much to ask Times editors to see the same illiberal trend developing in ACLU work defending the First Amendment clause protecting religious freedom, without “scare quotes.”

But we will take what we get because of the influence that the Times has in other newsrooms and even in some influential corners of elite academia.

The story opens with an event celebrating the career of lawyer David Goldberger, who played a key role in the famous 1978 case when the ACLU defended the free speech rights of Nazis to march in Skokie, Ill., the home of many Holocaust survivors. Read this long passage carefully:


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The New York Times 'reports' on an old mantra: Free speech for me, but not for thee

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If you are a journalist of a certain age, as well as an old-guard First Amendment liberal, then you remember what it was like trying to get people to understand why you backed ACLU efforts in 1978 to defend the rights of a neo-Nazi group to march through Skokie.

Clearly this march was going to cause pain and emotional suffering, since that Chicago suburb included many Holocaust survivors. But First Amendment liberals stood firm.

If you grew up Southern Baptist in the Bible Belt, it was also hard to explain why you thought Hustler magazine had the right to publish a filthy, sophomoric satire of the Rev. Jerry Falwell, including a fake claim that he had committed incest with his mother in an outhouse.

That case went to the U.S. Supreme Court. As a New York Times report at the time noted, this Hustler piece was clearly satire and the First Amendment wasn't supposed to protect people from feeling offended or even abused by voices in the public square.

The central legal issue is whether, in the absence of the kinds of false statements purporting to be fact on which libel suits are based, a public figure like Mr. Falwell should be able to win damages from a publication that intentionally causes emotional distress through ridicule, tasteless or otherwise.

Several Justices suggested they were grappling with a conflict between the freedom of the press to carry on a long tradition of biting satire, and what Justice Antonin Scalia called the concern that ''good people should be able to enter public life'' without being exposed to wanton abuse in print.

I remember, back then, liberals saying they would be quick to defend the First Amendment rights of conservatives who spoke out on tough, tricky and even offensive issues.

This brings me to one of the most Twitter-friendly stories of this past weekend, a Times report that ran with this rather blunt headline: "Weaponizing the First Amendment: How Free Speech Became a Conservative Cudgel." It's amazing how little religious content is in this report, in light of waves of religious-liberty fights in recent years.

If you are looking for the thesis statement or statements in this article -- which I think was meant to be "news," not analysis -- here it is: 

... Liberals who once championed expansive First Amendment rights are now uneasy about them.



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Your depressing 'think' podcast: Faith, hate and details that mattered in Charlottesville

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Warning: This post is going to be rather depressing, especially for (a) old-school journalists, (b) religious believers seeking racial reconciliation and (c) consistent, even radical, defenders of the First Amendment.

I really struggled as host Todd Wilken and I recorded this week's Crossroads podcast (click here to tune that in) and I think you'll be able to hear that in my voice. From my perspective, the media coverage of the tragic events in Charlottesville, Va., descended into chaos and shouting and the public ended up with more heat that light, in terms of basic information.

The key question, of course, is what did these demonstrations/riots have to do with religion?

That's where this post will end up, so hang in there with me.

But let's start connecting some dots, starting with a shocking headline from the op-ed page of The New York Times, America's most powerful news operation. Did you see this one?

The A.C.L.U. Needs to Rethink Free Speech

As a First Amendment liberal, that made me shudder. The whole idea is that the ACLU is struggling to defend its historic commitment to free speech -- even on the far right. In the context of Charlottesville, that leads to this (in the Times op-ed):

The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.
After the A.C.L.U. was excoriated for its stance, it responded that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” Of course that’s true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.
While admirable in theory, this approach implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression.

The key, of course, is that the rally descended into violence.

 


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Are fights over the First Amendment Defense Act about the First Amendment, or what?

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If you follow the history of cases involving freedom of speech, freedom of association and freedom of religion, you know that First Amendment liberalism can get pretty messy. Yes, follow First Amendment liberalism to its logical conclusions and you will end up with some pretty rough stuff, like American Civil Liberties Union lawyers backing the rights of neo-Nazis to march through a Chicago suburb full of Holocaust survivors.

More recently, in the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case, the U.S. Supreme Court ruled -- on a 9-0 vote -- that doctrinally defined organizations have a right under the Free Exercise clause to select their own leaders and workers linked to ministry, broadly defined.

Ah, but what if a doctrinally defined group -- let's say an on-campus fellowship group in a law school -- wanted the right to discriminate against potential leaders who refuse to advocate the group's beliefs on marriage and sexuality? What if a Catholic school wanted to dismiss a religious-studies teacher who married his or her same-sex partner, in violation of 2,000 years of Catholic doctrine?

Like I said, things can get messy.

You can see these First Amendment issues lurking in the background in mainstream news coverage of legislation that is being proposed to protect religious believers and religious organizations in the wake of the 5-4 decision Obergefell decision backing same-sex marriage. Here's an interesting test: In coverage of the proposed First Amendment Defense Act, how quickly does the mainstream coverage you are reading mention the actual name of the bill? How clearly does it define its purpose?

This passage from a recent New York Times piece illustrates these struggles:

Legislation granting protections for tax-exempt organizations and individuals objecting to same-sex marriage on religious or moral grounds is gathering momentum in the House. The bills, drafted by Representative Raúl R. Labrador, Republican of Idaho, and Senator Mike Lee, Republican of Utah, already have 130 co-sponsors. ...


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