Glib Fortuna Distorts Reality Again

Not that this will surprise anyone, but even when he's right, he can't seem to avoid misrepresenting what the ACLU says or does. In this post at STACLU, he cites a column by Nat Hentoff (one of my absolute favorite writers) where Hentoff takes the ACLU to task for inconsistency in a pair of cases, the Frenchtown case (where a student chose a religious song for a school talent show and was told she couldn't by the school) and the McCombs case (where a student chose to speak about her religious faith in a commencement speech and was told she couldn't by the school, but did so anyway). The ACLU filed a brief on behalf of the student in the Frenchtown case, but has publicly supported the school's decision to censor the student in the McCombs case. So far so good. I agree with Hentoff completely, and disagree with the ACLU on the McCombs case, as I've written previously.

But Fortuna doesn't stop there. Even when he's right, as he is in pointing out the inconsistency in these two cases, he has to distort the truth to try and make them look worse. He does this by claiming that they're taking credit for a case that they are not taking credit for. He writes:

Before I get to the meat of this post, let me clear one thing up (again). The NJ case IS NOT the ACLU's case. The little girl is being defended by the Alliance Defense Fund. The ACLU has filed a motion to submit an amicus brief in the case. Not that I have a problem with this, the ACLU should be this right more often. Rather, the ACLU has been peddling this as its own case in a widely distributed document that attempts to whitewash its record on "religious freedom."

The "widely distributed document" that he links to is a list of cases where the ACLU has defended religious liberty. But contrary to Glib's claim, they are not "peddling this as its own case". In fact, if you read the document you will see that they use virtually the exact same words he uses to describe their own involvement:

The ACLU of New Jersey (2005) filed a a motion to submit a friend-of-the-court brief on behalf of Olivia Turton, a second-grade student who was forbidden from singing "Awesome God" in a voluntary, after-school talent show.

They do not claim it's their own case, they claim exactly what Fortuna claims, that they have filed an amicus brief in the case defending the student's right to choose their own song. What Fortuna doesn't tell you, of course, is that the ACLU has little control over what cases it represents. Sometimes there are multiple public interest groups who are willing to take on a case and it's up to the plaintiffs, in this case the student's parents, to decide who will represent them. There may be any number of reasons why one group ends up with the case over another. Perhpas the parents object to the ACLU's positions on other issues and are more comfortable dealing with the Alliance Defense Fund. Perhaps the ADF simply got to it first.

But the fact remains that the ACLU is firmly, and rightly, on the side of the student and filed a brief on her behalf defending her religious liberty in the case. And that is all they have claimed to do. If you read the document he links to, you'll see that they are clear in each instance to tell you which cases they filed suits in, and which cases they simply filed briefs in because they were handled by someone else. Only someone truly hellbent on demonizing the ACLU, and with true contempt for honesty, would claim to find anything the least bit dishonest there.

Now, contrast that with the dishonesty with which the religious right often portrays what the ACLU does. Take the case of the students in Massachusetts who were punished for handing out candy canes at Christmas time with religious messages attached to them. In a column about the case, here is what Jerry Falwell had to say:

The fact is, students have the right to free speech in the form of verbal or written expression during non-instructional class time. And yes, students have just as much right to speak on religious topics as they do on secular topics - no matter what the ACLU might propagate.

He left out one tiny little fact that just might be relevant: the ACLU had defended the students in that case. They wrote a letter on behalf of the students to the school administration and told them that they had violated their right to free speech and that if the decision was not reversed, they would file a suit on behalf of the students. The school gave in, lifted the punishment and apologized to the students (I guess this was another instance of the big bad ACLU "intimidating" a poor defenseless school district with threats of lawsuits, eh?). The families of the students decided to go ahead and file a suit anyway in order to get an injunction preventing it from ever happening again, and in that case they were represented by the Liberty Counsel, a religious right legal group. But the ACLU again filed a brief on their behalf. So contrary to Falwell's blatant lie, the ACLU was on their side and was the one who got the school to change its policy.

Another example is the Lamb's Chapel case, where a church filed suit because a school district would not let them rent an auditorium to show a series of films. That case was handled by the American Center for Law and Justice, Pat Robertson's legal group. And when the Supreme Court, rightly, ruled 9-0 on behalf of Lamb's Chapel, Jay Sekulow, director of that group, went on the 700 Club and he and Pat declared it a "great victory against the ACLU". But they, too, left out one tiny little fact: the ACLU was on their side in the case and had, again,filed a brief defending Lamb's Chapel. This was not a victory against the ACLU at all, it was quite the opposite. But that doesn't fit their simplistic demonization of the ACLU. And when the facts don't support that demonization, then apparently lies will do just fine. So Glib's misrepresentation here is no surprise. It's pretty much standard operating procedure for the anti-ACLU crowd.

As I pointed out in a previous post, if the ACLU was the "guardian" of religious liberty they claim to be, with the 6,000 cases per year they take, you'd think that their docket would be swollen with hundreds of THEIR OWN cases to demonstrate its claim.

But this assumes too much. First, it assumes that there are hundreds of cases every year where religious liberty is put in peril. In fact, there are only a few high profile cases that ever make it to court. The vast majority of the time, in cases like the Frenchtown case, all it takes is a letter to the school telling them what the law really says and they quickly change their tune (because schools generally do this sort of thing not out of malice - for crying out loud, the vast majority of teachers and administrators, like the vast majority of people in the US, are Christians themselves - but out of ignorance of what the law really says).

Second, it assumes that the ACLU is contacted every time such a case comes up. But often times, the complaint goes to other groups, like the ADF or the ACLJ, and they're the ones who write the letter to the school board. But the point is that only a handful of such cases make it to court in a given year, and as a general rule the ACLU is typically on the right side of them - though not always, as the McCombs case demonstrates (but bear in mind that in the McCombs case, one ACLU official in Nevada offered an opinion in the paper supporting the school district's decision; they've not done anything legally in the case, nor are they likely to do so).

Getting to this article: Hentoff makes some great points here, not only in slamming the ACLU and its inability to agree on foundational First Amendment "no-duh" principles, but in illustrating this truth with two recent high-profile cases. The facts are nearly identical -- an individual at a non-mandatory school function choosing on her own to acknowledge her faith during that function. No brainer right? This is individual speech that could only be interpreted as "government" speech, well, by an idiot. That being the case -- how do different ACLU chapters take diametrically-opposed positions on such BASIC Constitutional issues? (No, you may not take the position that the state chapters don't count...they carry the name ACLU, so are fair game.)

The facts aren't quite as similar as Fortuna wants you to believe. The one big distinction between them is that in the case of the graduation speech, the school had to approve the content of the speech beforehand. That does, obviously, mean that there is a far stronger case for such speech being government speech, at least in the sense that it was approved by the government beforehand. Now, I have argued that this is precisely why the school should not have mandatory approval of the speech in advance, because they are actually creating the potential establishment clause violation by their actions. Since the student was picked to give the speech according to objective criteria (being valedictorian), the school did not choose who could speak based on the proposed content of their speech. Thus, the student's speech represents their own views and those views alone. In such cases, the school has essentially created a limited public forum with objective rules for who gets access to speak in such a forum. And where it has done so, it may not discriminate based on the content of the speech (the courts would generally allow restrictions on profanity, for example, but that is a viewpoint-neutral restriction). Given that, the school should exercise no authority at all on the ideological content of the speech, as the speech represents the student's views, not the school's views.

But this is not nearly as open and shut as Fortuna would have you think. A graduation ceremony is much more of a captive audience than a school talent show (technically, one can get their diploma without going through commencement, but the ceremony is a major rite of passage in our society and thus attendance is viewed as far more necessary than an elementary school talent show). And the school did insert itself through pre-approval of the speech, which lends credence to the notion that what the student said was approved and endorsed by the government in that case. I don't think any of that is enough to overcome the presumption of free speech for the student in the graduation case, but the issue is considerably more legally complicated than the talent show case. Still, I think the ACLU is wrong in their opinion (and so far, it's only the opinion of one Nevada ACLU official) supporting the school. But it's not as simple as he wants you to think.

Here's the point, the ACLU only values the Constitution as far as it promotes its agenda.

Typically conclusionary rhetoric from the STACLU crowd, but their logic is quite inconsistent. They claim, for example, that the ACLU's "agenda" is to "remove all vestiges of religion from the public square" or to "destroy Christianity in America". How, then, is their defense of the student in the Frenchtown case consistent with that alleged agenda? How does their consistent defense of the right of street preachers all over the country to preach on public sidewalks promote that alleged agenda? It doesn't, of course, because that isn't their agenda.

Yes, it is the ACLU's fault. Even when they file a brief or defend a street preacher here and there, the environment the ACLU has created is responsible for the ridiculous ideas that lead to these cases in the first place.

I would argue that much of the fault for such misinterpretations of the law lies with the religious right and their constant and deliberate misrepresentations of the ACLU's position and of the various court cases. How many times have you heard an anti-ACLU type claim that the Supreme Court "removed prayer from schools" or "removed the Bible from public schools"? That's a lie. They did not remove prayer from schools, they removed government-mandated prayer from schools; and they did not remove the Bible from public schools, they removed mandatory Bible reading from public schools. Students and teachers are still entirely free to pray, by themselves or in groups, any time they're not in class. And they're entirely free to read their Bible, alone while they eat lunch or in groups using school facilities after school. And all around the country, they do so every day, in after-school bible studies, in "see you at the pole" events, and so forth. But once in a while, a school official gets the mistaken idea that the courts have outlawed even that sort of thing, so they tell some group of students that they can't meet on school grounds or a Bible study, or they tell some teacher that they can't read their Bible while they eat lunch.

They're absolutely wrong, of course, but where did they get that idea? Not from the ACLU, which in 1994, in conjunction with the Department of Education, sent a packet to every public school in the nation describing exactly what the law says in regard to student free speech rights, religion, and the establishment clause. And that document made clear that students do not give up their free speech rights in regard to religion, that they have the right to hand out religious literature to their classmates, to sing religious songs or write papers on religious subjects where appropriate, to talk about their religious views with others, and so forth. The ACLU's representation of what the law says in that regard has always been accurate; it's only the religious right that oversimplifies and makes it sound as though the courts have ruled any and all religious speech out of public schools. Small wonder, then, that a few misguided school administrators believe them.

Fortuna then wrote another post in which he defends putting up Ten Commandments displays. No surprise there. But he rants in that context about "the ACLU's demented hostility to the FACT that this country was founded on Judeo-Christian principles and that it is appropriate to acknowledge this FACT." Nonsense in capital letters is still nonsense, of course, and it leads to an inevitable question: how is it that the Ten Commandments are an acknowledgement of the "Judeo-Christian principles" that the US was allegedly "founded on" when 7 of those ten commandments are blatantly unconstitutional? Isn't it odd to draft a constitution upon the alleged basis of these ten commandments and then make 70% of them illegal to enforce?