Far be it from me to sit in judgement on the Supreme Court, but then playing armchair judge is a pastime for most of America. And the case of American Legion v. American Humanist Association practically begs for review (pardon the pun), particularly with so many individual opinions being written in spite of the 7-2 ruling (to be honest I wasn’t aware the Court could even issue anything other than a 5-4 ruling anymore). In this case I think the Court got it exactly wrong largely based on those express opinions as reported in the Washington Post, which I will be referencing throughout this piece, so feel free to call me out if there is some nuance of legal thought I am overlooking by not reading the entirety of their opinions. However I do believe the underlying premise is sound.
The initial argument is basically that a cross on public land favors a specific religious point of view, which is unconstitutional. The mental gymnastics that the justices who voted to allow the cross to stay had to go through are particularly astounding, and the fact that so many of them took so many paths to get there shows that there really isn’t any clear logic or reasoning to support it, unlike the opposition argument. Note that this in itself does not indicate they are wrong; there can be several good arguments in favor of something, and reasonable people can disagree about which one is the best. However the fact is that none of the arguments put forward by the justices are good or even sufficient arguments, particularly as a matter of practical law when considering that they will be used as precedent in other cases.
What sort of cases? Consider for a moment the issue of Civil War memorials. While many of these memorials may not have a religious component, some may, and all of them are subject to First Amendment challenges (either by those who want to tear them down or those who want to keep them up). Let’s consider the justices opinions in terms of these memorials:
Justice Alito, from the main opinion (WP):
“For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Alito was joined in deciding that the cross may remain by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Elena Kagan, Neil M. Gorsuch and Brett M. Kavanaugh.
Take out “the Cross” and replace it with “the monument” and this passage would apply equally well to every Civil War memorial in the country. I know from personal experience it would apply to the entirety of Monument Avenue in Richmond, VA.
Justice Gorsuch, according to the Washington Post, “would have dismissed the case because he believes the “offended observer” has no legal standing to sue.” So if you’re offended by Civil War memorials… tough titty.
“Breyer said he was persuaded by the specifics of the case: that crosses are specifically linked to World War I sacrifice and that the cross had stood for 94 years without controversy.” (WP) Oh, good. Because the Civil War happened before WWI, and many of those monuments stood even longer than that without controversy. Because, y’know, a lack of controversy in the past totally trumps any present controversy. Or future controversy. Just ask Dred Scott.
To be fair, a couple of justices did give me hope of nuance, even if I didn’t love the way they decided. “Kagan praised Alito’s ruling, but said she refused to join it in full “out of perhaps an excess of caution.” “Although I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis,” she wrote. Kavanaugh said that the decision allows the cross to remain on public land but does not require it. Maryland officials could make other arrangements, he said, such as transferring the land to a private group.” (WP) From reading these comments, I’m almost persuaded to believe they might be thinking about the same sort of issues I am. Of course I might be flattering myself (wouldn’t be the first time), but it is nice to see a bit of judicial restraint even in the face of a poorly decided issue.
I understand that reasoning by analogy is flawed, but I am only using an analogy to highlight my point, not to establish it. And the point is this: decisions coming out of the Supreme Court, particularly ones that have a sizable majority such as this one, set a strong precedent for the entire country. I am a fan of stare decisis and history as much as the next Court watcher, but even more I am a fan of an awareness of the future and what it might hold. While nobody can predict that with even a reasonable modicum of accuracy, it’s not too hard to draw reasonable conclusions from the present, and a bit of restraint in current decisions could yield significant room to maneuver in future cases.
I was talking with my friend Keri of HeelsFirstTravel.com (which I’ve mentioned before, and who’s been a guest blogger for me as well, but still check them out because they rock), and it seems there was a troll who popped up in the comments section of her blog the other day. I’m not going to dignify the comment by repeating it here, but suffice to say it was inappropriate.
I know there are those who would say that trolling is part of the internet, and that we have to accept it as part of doing business. I’ve even said as much myself. But maybe I’m getting a little quixotic in my old age, because I’ve decided it’s time we take back the internet. I’m tired of the trolls and the sleazebags dominating the internet. I’m tired of feeling like I can’t go into what amounts to the public square without having to worry about seeing the verbal (or sometimes literal) equivalent of someone throwing feces. I’m tired of not being able to invite people into what amounts to my digital home without fear they’re going to track filth all over the metaphorical rugs.
Let me be clear: I’m certainly not advocating for governmental interference. Not only would that go against all of my core principles, the chilling effect that would have on speech vastly outweighs any benefits we might garner from it. Besides, the truth is there are places and times that I myself enjoy kicking back and acting the fool. I have one friend whose Facebook page I troll regularly. Note the keyword there: friend. As in “I actually know him in real life”. Given the chance I would say the same things and worse to him, and he’d say the same and worse to me. It’s part of our friendship dynamic. I’m also part of a group that shares awful (and I do mean awful) videos from around the internet. The kind that should come with a warning label that reads “watch this at your own risk – better yet don’t.”
So what am I calling for? I guess the best equivalent would be community policing, or neighborhood watch. A public shaming of those who do such things, not on the internet (because that only feeds their egos and drives them to do it more) but a real-life shaming. When guys (and let’s face it, it’s mostly guys who do this, but if girls do it they deserve their share of real-life hate as well) start bragging about their latest online escapades, let’s start letting them know it’s not funny, it’s not cool, it’s just sad and pathetic. They may go to their dark little corners of the internet to nurse their grudges among their like-minded ilk, but frankly that would be an improvement. Let them congregate amongst themselves in a self-imposed exile and leave the rest of us to enjoy our own company.
It’s the moral equivalent of making fart sounds in church. A few people might laugh nervously, and a couple immature goofs might get a chuckle out of it, but most of us just sit there in uncomfortable silence and hope they go away. (Not that I consider the internet to be a church, but it’s an analogy. Work with me. I swear it’s apt.) It’s time we all stand up in the metaphorical pews and denounce them for the fools and hecklers that they are, and chase them back under the bridges where trolls properly dwell.
I’m going to go out on a limb and assume I’m going to offend some folks with this post, most likely some of the same people I offended when I addressed my issues with feminism, but I’d like to state for the record that I am not blaming feminism for this one. I am blaming cowardice and stupidity. If you are offended by anything I have to say in this post, I will gladly address your concerns, but I wanted to get that out there first.
So I recently found out that the University of North Carolina – Chapel Hill has removed the word “freshmen” from official documents to adopt more “gender inclusive language”. Point of fact, according to the linked article the policy change occurred in 2009, but then I don’t stay abreast of every action I find idiotic in the world, just the ones that come knocking on my doorstep. It’s not even that I find this terribly shocking in and of itself, since this isn’t the first time I’ve heard of something like this happening, it’s the fact that something like this is still happening in 2009.
Look, I love the English language, and I get as much as anyone that words have power. I use them every day, in my job and in my hobby (you’re reading the latter right now, if I haven’t offended you too much already). But there has to be a point at which we say that while words have meaning, there is such a thing as reading too much meaning into words. I realize the deconstructionists out there will disagree with me, as will certain others, but where do we draw the line?
I cite as an example, and the reason I say “why is this still a thing?” the exact same joke I made when this whole question of language use first came to my attention… back in 1993. That’s right, about twenty years ago. At the time I was joking about the word “humankind”. Obviously this word is offensive, as it contains the word “man” and is meant to refer to all homo sapiens. Therefore we should change it to hupersonkind. However even this is offensive, as it contains the word “son”, which is still gender discriminative, as well as making assumptions about family roles. That simply won’t do. We should therefore make it into “huperchildkind”. The word “kind” may remain as it is an affirmation, and something we should all strive toward being.
Ridiculous? I should say so. And that was my point. Any attempt to change a word simply because it contains within it a masculine form which, within the established rules of the English language is the gender-neutral form, is just that: ridiculous. I’m not aware of attempts to change European languages that default to masculine and feminine forms for inanimate objects, although if those exist I would consider them equally silly. The rules of language may be arbitrary, but they exist and we follow them because they work. Taking offense where none is intended or necessary is just looking for excuses to be angry at the whole damn world for not bending to your whims, and frankly there are better windmills to tilt at.
This is not to say I oppose all attempts to make language gender-neutral. While I abhor such ludicrous neologisms as “actron”, I freely accept the interchangeable use of the gender-neutral term “actor” being applied to men and women who ply the same trade, and a magician is equally as talented (or not) regardless of gender. There are also times and places where gender differences are useful in one’s title; or perhaps you are one of the folks who don’t care if you are served by a masseur or a masseuse. None of these, however, are relevant to the issue above; that is simply a matter of cowardice and stupidity, blindly flailing about in a craven attempt to please all and offend none. The end result is often the exact opposite.
Words matter. They have power. They have meaning. They can be used for so many things, to create joy or sorrow, to enlighten or spread ignorance and fear. So long as we give in to the forces who would take away our words in the name of cowardice and stupidity, all we have left is
“Thou shalt not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh his name in vain.”
Okay, even I can’t misinterpret or twist this one. It’s pretty much straightforward. I’m not even going to demand a strict interpretation of “JHVH” as the name of God being the only thing that can’t be taken in vain, because that’s just being silly. So in what ways does the Third Commandment affect the broader tapestry of our society? I see it as being in three ways. First, in those who embrace the ideology of the Judeo-Christian framework but then don’t live up to it in the laws they support; second, in those who make any sort of oath using a Torah, Bible, or other holy book derived from the Commandments and then violating that oath; and third in potential conflicts between the Third Commandment and the First Amendment.
For those who subscribe to this particular set of ideals, even without looking more broadly than the Commandments themselves I think there’s a fair bit of potential for conflict. Setting aside any jokes about politicians and adultery, there’s still plenty of arguments to be made. The weakest is regarding taxation, which some have argued is equivalent to theft. I’m not looking to make that argument here (although I may when I get to the Eighth Commandment), but I am putting it out there for consideration. More importantly there’s the question of all the people and politicians who make a big show of their faith and yet also make a big show of support for the death penalty. I’m not sure exactly how they square that with the Sixth Commandment, but that’s another one I’ll discuss further when I get to it. For now, I’m just asking questions.
As far as the taking of oaths, I know it was a requirement at some point to swear on the Bible when taking the stand or taking office, although I’m not sure if that was law or tradition with the force of law, nor am I sure if that is the case anymore. If a non-believer were to take an oath using the Bible, is that a violation of the Third Commandment? What about the many, many times that people have taken oaths, whether it be of office or simply when taking the stand in court proceedings, and then broken those oaths, but they were believers? I assume those are cases where the Commandment was broken. But what if they had no intention of breaking the oath at the time they took it?
Or what if they didn’t want to use the holy book because they felt it was in some way disrespectful? I mean no disrespect to anyone when I say invoking the Bible, the Torah, or the Quran would not influence my feelings about an oath, except perhaps to make me uncomfortable taking it in the first place since I see no reason to mix religion with public matters. But for believers, if there is a stigma, does it attach to the person who took an oath under duress or to the person who created the duress?
Finally, on the subject of non-believers, duress, and taking the lord’s name in vain, we have the issue of the First Amendment and how it intersects with the Third Amendment. Please note that I didn’t just say “free speech”, I very deliberately said “the First Amendment”. The issue here is one of freedom of religion as much as it is one of free speech and of the press. When we still censor the use of the phrase “god damn” on the chance that someone might be offended, and even more extreme forms of language and self-expression are suppressed with a ruthlessness that some third-world dictators might admire, there can be no question that there is an intersection between free speech and freedom of religion. But where do we draw the line? The presumption of “public airwaves” is that they are owned by the public as a whole, and not by any one segment of the public. So the question then becomes, do we appeal to the lowest common denominator of lasciviousness or the lowest common denominator of righteousness? Think carefully before you answer, because while your answer may be rooted in a desire not to hear someone use “Jesus Christ” as a curse, it may also mean not allowing someone to display an image of Mohammad either. “Freedom of religion” does not equate to “freedom of YOUR religion”.
This has been a particularly loud year for the “get money out of politics” crowd. Certainly the Citizens United decision didn’t do much for them, but I have to admit I’ve never understood the big push to get money out of politics in the first place. Setting aside jokes about an honest politician being one who stays bought, the reasoning behind trying to get money out of politics seems to be, as I understand it, that rich people will simply buy influence and we lesser folk will simply be ignored.
I’d like to explore how that works two ways. First, let’s consider a world in which we don’t allow anyone to donate at all to political campaigns. After all, money doesn’t equal speech, right? So no need to let anyone donate to any candidate. But then does that mean candidates only get to spend their own money? How does that stop rich people from just buying elections directly? Unless we want to stop them from spending their own money to express their own personal views, and that’s a case where I don’t think I’m conflating money with speech, I’m conflating “speech” with “speech”.
And what about the newspapers? Do we silence them as well? Do the editorial boards get to keep endorsing the candidates of their choice? Or do they have to rely on silly work-arounds, perhaps offering “report cards” for each candidate on the issues, making it clear that one candidate gets straight “A”s and another nothing but failing marks, but we’re not endorsing anyone! Either way, what’s to stop the wealthy or corporations from buying the newspapers and TV networks (like they haven’t already) and pushing the agenda of their choice (sounds like a pretty foxy idea, wish I had thought of that…)?
So if we can’t shut out the rich and the news, do we only shut out “the lower classes”? That’s what we’ve been trying to avoid, isn’t it? Then perhaps the alternative is to simply allow anyone who wants to donate to contribute as much money as they want, but we put it all into one big pot of money, and then the money gets distributed evenly to anyone who wants some. Aside from the question of “who’s a legitimate candidate” (that’s like defining legitimate rape), even if you managed to answer that you’d end up with money from a dedicated feminist supporting Todd Akin and money from a neo-Nazi going to support Al Sharpton. Public financing of campaigns is basically the same idea only worse: people don’t even get to decide if they want to play (or pay) at all.
The other problem with the “big pot o’ money” approach is the issue of bundling for impact. Sure politicians care what you say, as long as your opinion comes wrapped in a check, and the bigger the check the bigger your opinion, which is what started us down the whole path in the first place. If you don’t believe that, then you should have no problem with rich people and corporations donating as much as they want to any politician at any time, because it doesn’t matter. If you do believe it, then you are faced with the issue of lots and lots of little people trying to get their voices heard individually… or gathering together as one to have some real impact. Sure, the rich people can do the same thing, but they don’t need to, or at least, they don’t have as much need to. So what you end up with is a classic Catch-22: either money doesn’t influence politics, in which case we don’t need laws to stop money from being in politics, or money does influence politics… in which case we don’t need laws to stop money from being in politics. When you hear a politician calling for “getting money out of politics”, it’s usually one of two major choices: an incumbent who benefits over challengers from “campaign finance reform”, or some “outsider candidate” who is having trouble raising money. Like anything else, check the incentives before you go thinking this is altruism or any sense of “for the public good”.
Ever since I can remember, money and politics have gone together like sex and teenagers: “it’s a problem”, “it’s an epidemic”, “it’s ruining our society”, and as far as I can tell from my own limited experience, it’s a non-issue. As best as I can tell the real fear isn’t that people will make a choice they didn’t want to make, or (like this never happened) an uniformed choice, the real concern is that people will make the wrong choice. By what standard? Well, that’s really a matter of opinion, isn’t it? When I hear someone calling for campaign finance reform, what I most often hear them really saying is “other people are idiots but I’m not.”
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Boy, that’s a mouthful, ain’t it? And it covers so much ground in so little space. Enough ground to keep us arguing over exactly what even one clause means over two hundred years later, and there are three distinct clauses that cover three, arguably very different, aspects of life. So why do all of these fall in the same amendment? And what does it all mean, anyway?
For me personally, it’s not just a matter of “these are the most important things, so let’s put them all first.” The entirety of the Bill of Rights was adopted at the same time, so there’s no reason to say any one amendment is more important than the others, and it’s kind of curious to try to mash together a bunch of unrelated ideas and hope they hold together (unless you think the Founding Fathers were the world’s first DJs. Come to think of it… dibs on that name.) There’s a common thread there, if you look past the surface and consider what the purpose of each of those acts is, and what their deeper meaning is and was at the time of the founding of our country.
I believe the First Amendment is about freedom of thought and the expression thereof. To be able to think or believe something is essentially meaningless in a society without the legal capability to express that belief, and each of those clauses covers one of the primary means by which people of the time communicated with each other. Whether from the pulpit or in the pews, by voice or the printed page, or even simply gathering in the town square and letting their voices be heard, these were the ways that people could let their thoughts and beliefs be known. So what are the implications for our modern society of that interpretation?
For starters, I believe that a strict literalist reading is just silly. To restrict the realm of free speech only to the items identified by a two hundred year old document is to assume that not only were the Founding Fathers great authors and statesmen, they were also prognosticators able to see the advances of technology yet to come and said, “Verily, that internet looks most interesting, but mayhap we best restrict the freedom of expression only to those technologies that exist in our day and age, lest we somehow bungle the whole experiment. Harrumph, harrumph.” (Because that’s exactly how they talked.)
Next, note that “Congress shall make no law respecting an establishment of religion“. That means that any law like prayer in schools, hanging of Commandments, or anything else that is an official state recognition of religion is out. This also covers pathetic dodges like attempting to make religious shrines “secular” monuments. By the same token, any attempt to restrict people from “the free exercise thereof” is also banned, so stopping folks from displaying a manger scene on their own property is as unconstitutional as banning a sign that says “God hates fags.” You don’t have to like it or agree with it, but it cuts both ways. That’s the way I read it.
Also, while it’s been said before, I think it’s worth noting and reinforcing that the First Amendment is not there to protect popular speech. That’s easy; if the majority of people like what you have to say or believe, and in particular if the people who trod the halls of power are comfortable with what you are saying and how you say it, then you have nothing to fear in terms of what you say or do being restricted. It is the unpopular speech, the vile speech, the speech we would prefer not to have to endure in our comfortable lives that most needs protection. Whether it is jerks who claim military service they never gave or idiots who deny the Holocaust, we need to protect and allow all speech. Let us not forget that there was a time in our country’s history when speaking out against slavery, or in favor of equal treatment for people of all ethnicities or genders, was equally offensive in polite society and the halls of power.
Finally, and this is the big one, expression is merely the final extension of thought. To give freedom of expression without freedom of thought is like saying “Any customer can have a car painted any color that he wants so long as it is black” (thank you Henry Ford.) Being given the choice between “yes” and “yes, please” is no choice at all. Likewise, hate crime legislation is wrong on two points: first, it presumes we can know the true thoughts and motivations of another person. Honestly, I don’t know why I do the shit I do half the time. I’m supposed to understand why other people do things? And even if I did, the First Amendment gives us the right to believe what we want. You don’t have to like it, and you don’t have to agree with it. If the way someone expresses those beliefs is a crime, then let them be punished in accordance with the crime they committed, but not for the thoughts in their head.
Unless we’re okay with making thoughts a crime.
Recently the FCC got slapped, although not spanked (and certainly not tied up and paddled on primetime television) by the Supreme Court. Well, yippee. I know I should be more excited by this, especially considering my vast love for the First Amendment in all its forms, but the truth is this ruling was about as mamby-pamby as any I’ve ever heard out of the Supreme Court, which considering it was a unanimous ruling in a strongly divided court isn’t much of a surprise. Still, at least we got a little something, which is to say a small shred of common sense in government: hey look, you can’t just decide post facto that something is indecent and levy fines here but not there for the same activity.
But why shouldn’t we be grateful for the FCC? I mean, after all, won’t somebody please think of the children? If it weren’t for the FCC, public television might look more like cable, what with the sex, violence, and bad language. And we all know nobody actually wants to watch shows like The Sopranos, Sex in the City, True Blood, or anything like that. And even if there were a few sick bastards out there who did, the rest of us would be helpless in the face of their Vast Media Empire. It’s not like we could, I dunno:
- change the channel
- turn the TV off
- go read a book
- play outside
- go for a walk
- build a model
- play a board game
- call a friend
- go to the theater
- look at lolcatz on the interwebs
- read a blog
So yeah, we’re pretty much stuck looking at the same handful of channels, making sure we all have the same culture. One might even call it “popular culture.” Not because it’s all that popular, but just because everyone is familiar with it, and because it appeals to the lowest common denominator, and it never challenges us. If we didn’t have that, if our entertainment somehow became fractured, we might not all have the same basic outlook on things, and what would that do to our society? Our politics? Our country?
We might all start finding things that appeal to our deepest beliefs rather than the muddy middle, and then we’d have to go one of two ways. The one would be a cultural and political revolution, but in a good way: we would have to honestly start to engage with one another, and stop pretending that father knows best, admit eight isn’t enough, and we just can’t leave it to beaver. We would need to go to a place where everybody doesn’t know your name, and start to lean each other’s’ names, as well as each other’s hopes and dreams and deepest beliefs. Then we would need to work out our conflicts in a meaningful way, and not just try to force our own ideas of what’s right and wrong on each other, either through blatantly through the political machine or subtly through the mass media.
The other would be a disaster: some sort of bipolar system in which we become horribly polarized, swinging back and forth politically and socially until the entire system cracks apart from the stress because we keep talking past each other instead of talking to each other. But that could never happen, right?