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.