Dispatches from the Creation Wars

Fox News and the ACLU.

I’m curious to know if any of my readers has seen the new documentary Outfoxed, about the Fox News Network. I’ve found the Fox News phenomenon fascinating since I first came across the network unwittingly a couple years ago. I remember very clearly flipping channels on cable and coming across Bill O’Reilly as he was giving a “when we come back” teaser. I’d never seen the show, or the network that I could recall, but I had a vague recollection of O’Reilly as having hosted one of the syndicated tabloid TV shows. And here he was again, but instead of telling us to stick around to see an investigative report on Cher’s weight loss secrets or an expose` on Britney’s boob job, he was promising that after the commercial break he would expose the “fascist tactics of the ACLU”. Okay, this I had to see…

When it came back from commercial, O’Reilly was telling the story of a poor put upon school district, in Washington if I recall correctly, that had refused to allow a gay student club to meet on school grounds after school. The ACLU, you see, had written a letter to the principal of the school telling him that under federal law, he could not forbid this club from using school facilities as long as he let other clubs do so. To a sane person, this probably seems perfectly fair, but to O’Reilly….why, this was an outrage. Getting himself all worked up into a lather, he breathlessly cast the school district as David and the ACLU as the Philistine Goliath, “legal thugs” using “fascist tactics” to “intimidate the good people of this community”. Before long he was in full cry, with a heart full of righteous indignation and a head full of steam, and he had help too. He introduced his guest, whose name I forget. The guest was from some legal organization that had long battled the ACLU and he had written a book condemning the ACLU. I kept waiting for someone from the ACLU to be introduced so they could give their side of the story, but that was not going to happen. But in the interests of being fair and balanced, O’Reilly did ask the man if he could be objective in looking at this latest outrage; to no one’s surprise, he said yes.

This introduction began what can only be described as an amusing dance between the two gentlemen. The guest would darkly intone that the ACLU was started by communists (!); O’Reilly would shake his head in disgust. The guest would cast the ACLU as the enemies of God and apple pie and Grandma too; O’Reilly would turn a little redder and begin sputtering that it’s time for “normal people” to stand up to this colossus once and for all. This mutual little wankathon went on for a few minutes, without anyone bothering to address what, it seems to me, would be THE central question that any actual journalist would want answered – were they right? At no point in this little self-righteous circle jerk they were having did either of them even mention that the ACLU was right, that the Equal Access Act forbids schools from discriminating in this manner. Under that law, if a school allows any noncurriculum-related student-run clubs to use school facilities, they must allow all such clubs to meet, regardless of whether the school approves of the club’s message or position. Nor did they bother to mention that this law has also been used, and correctly so, to insure that student-run bible clubs and prayer groups be allowed to use school facilities on an equal basis with other groups.

Demonization of the ACLU is of course quite common on the right. They pick and choose which cases to emphasize to paint the picture that the ACLU is just anti-religion and will do anything that is against Christianity. I’ll give you a perfect example of this dishonesty at work. Pat Robertson has an organization called the ACLJ – the American Center for Law and Justice. Their primary fundraising comes from direct mail campaigns that demonize the ACLU and portray them as hateful anti-Christians out to stamp out religion in America. Once they’ve duly scared people with this vision of these marauding legal visigoths, they can cast themselves as the hero on the white horse – just send us money and we’ll stop those satanic ACLUers. This is from their webpage on the Equal Access Act:


The Equal Access Act, passed by Congress in 1984, provides that when a public school district gives students an opportunity to form extracurricular clubs that meet on school grounds, that it may not refuse such an opportunity to Bible or Christian fellowship clubs.

Bzzzt. Nope. It says that they may not refuse such an opportunity “on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” This is not limited to only protecting the access of religious groups, but it DOES protect such access within the larger set of protections.

Unfortunately, many liberal advocacy groups, such as the ACLU and People United for Separation of Church and State (sic), argue that the Establishment Clause of the First Amendment requires the government to discriminate against religious groups. They maintain that if religious groups are not barred from eligibility for generally available government benefits, then the government establishes a religion, in violation of the Constitution. Nothing could be further from the truth, and the United States Supreme Court has repeatedly rejected that argument over the past twenty years in a variety of contexts.

The ACLJ has played a pivotal role in securing landmark decisions from the Supreme Court, as well as lower federal courts, which recognize the essentiality of the Equal Access principle in First Amendment jurisprudence. In Lamb’s Chapel v. Center Moriches Union Free School District, Jay Sekulow won a landmark victory before the United States Supreme Court on behalf of churches seeking to use community facilities on the same basis as other community groups. The Supreme Court recently reaffirmed the principles announced in Lamb’s Chapel in Good News Club v. Milford Central School District, holding that local governments cannot discriminate against religious organizations, even when they propose to use community facilities for worship and religious instruction. The ACLJ filed a brief in that case. The Supreme Court has been clear, yet the ACLU and other groups attempt constantly to undermine equal access principles.

Now reading this you get the idea that the ACLU is against the Equal Access Act and that they have argued that the government should not apply it to religious groups, right? Oh, and don’t forget that the ACLJ has bravely stopped them and won victories in the Supreme Court, especially the Lamb’s Chapel case, so send them more money and they’ll stop those big bad evil atheists at the ACLU again! There’s only one problem with this – it’s utterly false. In the Lamb’s Chapel case that upheld the Equal Access Act and guaranteed access to school facilities to religious groups (in that case, not even a student club but a church that wanted to use an auditorium to show an anti-abortion film), the ACLU filed a brief UPHOLDING that decision. In fact, that brief is specifically mentioned in the syllabus of the Supreme Court decision:

Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Edward C. DuMont, Anthony J. Steinmeyer, and Lowell V. Sturgill, Jr.; for the American Civil Liberties Union et al. by David H. Remes, T. Jeremy Gunn, Steven R. Shapiro, John A. Powell, and Elliot M. Mincberg; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Laurence Gold, and Walter A. Kamiat; for the Christian Legal Society et al. by Kimberlee Wood Colby, Steven T. McFarland, Bradley P. Jacob, and Karon Owen Bowdre; for Concerned Women for America et al. by Wendell R. Bird and David J. Myers; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; and for the Rutherford Institute by James J. Knicely and John W. Whitehead.

That’s right – they were on the same side with the ACLJ and the Christian Legal Society and Concerned Women for America. How odd that the ACLU would “attempt constantly to undermine equal access principles” by filing briefs urging the court to use the act to grant access to churches and bible clubs to use school facilities. Perhaps in the world that Pat Robertson and his underlings inhabit “attempt constantly to undermine” really means “provide legal support for”, as in Wonderland, where words mean whatever you want them to mean.

Comments

  1. #1 mist
    August 26, 2004

    I listen to Bill O’Reilly fairly regularly, because I think he offers a ‘fresh’ perspective (as in different from mine) on subjects, without being quite so far right as the average radio host. Sometimes he has helped me understand why people feel differently on subjects when I can’t understand why they would.

    However, I’ll never forget the time he said he actually supported the ACLU; first because I was in shock that he would even admit it and second…. he supported them when they argued that creationists should have equal say in science class rooms!

    That immediately knocked my level of respect for him down tremendously. I don’t mind a different opinion on a subject when the author is well versed and passionate about why he feels that way. But for anyone as ‘rational’ as O’Reilly to say what he said about creationists shows immediately that he will have the same opine on subjects he obviously hasn’t studied. Or, worse yet, that he’ll have an opinion that isn’t rational because it suits his belief system better.

    As for the ACLU, I do think they spend a lot of time defending issues which might rightfully need defending from a legal perspective, but many times just look and sound ridiculous from a common sense one. That ends up being used as ammunition by conservatives. I think this is a good real world example that applies to this article about how conservatives have successfully managed to use language to dominate politics:

    UC Berkley News

  2. #2 Ed Brayton
    August 26, 2004

    However, I’ll never forget the time he said he actually supported the ACLU; first because I was in shock that he would even admit it and second…. he supported them when they argued that creationists should have equal say in science class rooms!

    You should be in even more shock than that because he’s wrong. The ACLU emphatically does NOT argue that creationists should have equal say in science classrooms. The ACLU handled the legal challenge to both the Louisiana and Arkansas creationism laws, both of which were struck down in court (Mclean v Arkansas and Edwards v Aguillard). The ACLU is also handling the current potential challenge in Ohio. My organization, Michigan Citizens for Science, works closely with the ACLU here in Michigan and the NCSE works closely with ACLU chapters around the country wherever there are creationist challenges on science education. They are decidedly against teaching creationism in public schools, and particularly against any sort of “equal time” laws, which they have been instrumental in striking down.

    As for the ACLU, I do think they spend a lot of time defending issues which might rightfully need defending from a legal perspective, but many times just look and sound ridiculous from a common sense one. That ends up being used as ammunition by conservatives.

    I agree with that. It’s not popular to defend the Nazis in Skokie (a case which cost them 1/3 of their membership) or NAMBLA. It makes them an easy target for demagogues like O’Reilly. But they’re generally right.

  3. #3 raj
    August 26, 2004

    Re Faux News, I haven’t paid any attention to them since an incident in early (March or April, I believe it was) 2001. For a reason I cannot figure, the gym I go to had Faux News blaring on a TV in the locker room, and Faux News was broadcasting the story about the US surveillance plane that had been forced down by the Chinese. They (Faux News) was broadcasting, virtually non-stop, “coverage” of the incident, including what appeared to be live pictures of the plane. The Faux News “commentator”–I hesitate to call her a reporter–said (and I’m paraphrasing, but it is fairly accurate) that they had no idea what was going on, but they would continue broadcasting coverage of the incident anyway.

    I was rolling on the floor, laughing.

    One thing you need to know about movement conservatives–and this includes movement conservative christians as well as secular conservatives. They need to have someone to demonize. It helps keep their sheep in line. This is also true of leftists (not necessarily liberals, but definitely leftists). Hence conservatives’ demonization of the ACLU, gays, etc. The ACLJ’s characterization of the Equal Access Act is correct, it does provide that, when a public school district gives students an opportunity to form extracurricular clubs that meet on school grounds, it cannot refuse the same opportunity to Bible or Christian fellowship clubs. And the fact is that it was passed because Christians complained that they were being denied that right. I don’t know whether or not it was a valid complaint, but they registered that complaint and that was the reason that the act was passed.

    But the fact is also that, if one interprets their characterization of the act as being limited to rights regarding Bible or Christian fellowship clubs, they are sadly in error. So if a Muslim group wanted to start a Wahabbist (pardon my likely misspelling) study group using facilities of a local school district, the school district would be powerless to forbid that if they allowed any other extracurricular clubs to use district facilities. More to the point, school districts could not forbid gay clubs from using district facilities either. In point of fact, it appears that the primary usage of the Equal Access Act over the last few years has been to require reticent school districts to either allow gay clubs to meet on school property, or to ban all extracurricular clubs. And conservative Christians are upset with that. I refer to that as the law of inintended consequences.

  4. #4 raj
    August 26, 2004

    Regarding Ed Brayton at August 26, 2004 03:52 PM

    >It’s not popular to defend the Nazis in Skokie (a case which cost them 1/3 of their membership) or NAMBLA.

    The ACLU did NOT defend the Nazis in Skokie or NAMBLA. The ACLU defended the right of the Nazies to march through Skokie as part of their right of expressive speech under the 1st amendment, in the same manner that Skokie allowed other groups to march as part of their right of expressive speech. Similarly with NAMBLA, regarding speech and the press. The ACLU was not defending either the Nazis or NAMBLA, or their message.

    You are correct that the ACLU’s brave stand in supporting the right to freedom of speech and the press under the 1st amendment cost them more than a bit of their membership. But please do not mischaracterize what the ACLU was defending.

  5. #5 raj
    August 26, 2004

    mist at August 26, 2004 03:29 PM

    >As for the ACLU, I do think they spend a lot of time defending issues which might rightfully need defending from a legal perspective, but many times just look and sound ridiculous from a common sense one.

    I’ll just note what Albert Einstein said about “common sense.” Common sense is the set of prejudices that one acquires before reaching the age of 18.

    It’s a paraphrase, of course, but close enough.

  6. #6 Ed Brayton
    August 26, 2004

    The ACLU did NOT defend the Nazis in Skokie or NAMBLA. The ACLU defended the right of the Nazies to march through Skokie as part of their right of expressive speech under the 1st amendment, in the same manner that Skokie allowed other groups to march as part of their right of expressive speech. Similarly with NAMBLA, regarding speech and the press. The ACLU was not defending either the Nazis or NAMBLA, or their message.

    A purely semantic difference. Of course they were defending a principle, but their client was, respectively, the American Nazi Party and NAMBLA, and they were defending not merely the principle in the abstract but the ability of those organizations to exercise their rights based upon that principle. That does not, of course, mean they were defending the validity of the message or the mission of either organization.

  7. #7 Jillian
    August 26, 2004

    My favorite Bill O’Reilly moment has to be the expose I saw him doing a couple of months ago where he brutally smashed the scurrilous lie that the American news media are not a bastion of liberalism. I watched, breathless with anticipation, to see the devastating attack he would bring down upon the mainstream media. And when it finally came, I think I strained something laughing. His irrefutable evidence…

    Walter Cronkite. And Andy Rooney.

    Yep – A man who retired from active participation in journalism around the time I was getting out of diapers and a crotchety, opinionated windbag who isn’t even technically a journalist PROVE, beyond any dispute, that the American news media have been overrun by Communists in Liberals’ clothing. That was it. That was his whole argument, right there.

    While trying not to underestimate the potential danger jerks like O’Reilly represent, I pretty much dismiss him as a gasbag and dismiss anyone who takes him seriously as a pinhead.

  8. #8 Troy Britain
    August 26, 2004

    …for Concerned Women for America et al. by Wendell R. Bird…

    Wendell Bird, btw, is the creationist lawyer who was involved in both Mclean v Arkansas and Edwards v Aguillard (more in the later case).

  9. #9 raj
    August 27, 2004

    Ed Brayton at August 26, 2004 07:06 PM

    >A purely semantic difference. Of course they were defending a principle, but their client was, respectively…

    If you meant to say that the ACLU provided defense counsel to the Nazis (as plaintiffs) and to NAMBLA (as defendants), then say it. Your original statement was broad enough–or ambiguous enough–to suggest that the ACLU was defending, not only the respective litigants in connection with their legal issues, but also what their messages were.

    >…, and they were defending not merely the principle in the abstract but the ability of those organizations to exercise their rights based upon that principle.

    Well, duh. It should be obvious that, in order to defend a principle in the abstract, the ACLU must defend the right of an organization–or an individual–to exercise its right based on that principle. Rights don’t exist merely “in the abstract.” If a right does not exist when it is sought to be utilized–even by one whose message might be offensive to the vast majority–then it doesn’t exist.

    But as anyone who has studied constitutional law knows, the 1st amendment’s prohibition on congress infringing on freedom of speech and the press is a chimera. Aside from the alien and sedition acts of the 1790s, I only need only cite the Supreme Court opinions in US v. Schenk and US v. Frohwerk in the 1920s. The opinion in Schenk was the source of the witticism that one doesn’t have the right to shout “fire” in a crowded theater, but the case had nothing to do with someone shouting “fire” or a crowded theater.

    BTW, it appears that one has to provide HTML tags here in order to have formatted comments. I mean, like, line breaks at the end of paragraphs, and spacing between paragraphs. It’s something of a pain to have to remember to do that–more advanced commenting systems don’t require that.

  10. #10 Adam Marczyk
    August 29, 2004

    I’ve seen Outfoxed and, truthfully, was a bit disappointed. I would have preferred more in the way of hard statistical data to show how Fox is biased, as opposed to anecdotes of the form of “one time this one Fox station manager said something good about the Republicans, so that proves they’re biased.”

    However, although it’s less relevant to the network as a whole, the segment in which they deconstructed Bill O’Reilly’s on-air treatment of Jeremy Glick (a young man whose father died on 9/11 who signed a petition against the war in Afghanistan) was devastatingly accurate. Not only did they show how utterly disrespectful O’Reilly was of Glick, who remained very calm and civil despite O’Reilly’s verbal abuse, they showed clearly how over subsequent months O’Reilly’s version of the story changed steadily until it became that Glick was the one who was angry and yelling and out of control, which was the exact opposite of the truth.

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