For the past 20 years or so, while watching more and more debates over the First Amendment sneak into the headlines, I have been asking myself the following question: What should journalists call a person who waffles on free speech, waffles on freedom of association and waffles on religious liberty?
The answer: I don’t know, but the accurate term to describe this person — in the history of American political thought — is not not “liberal.”
Of course you can also turn this equation around and ask: What will mainstream journalists call a person who is strong on free speech, strong on freedom of association and strong on religious liberty?
The answer, based on the news coverage I have seen in the past year or so is this: It appears that such a person is now either a “conservative” or a very, very old member of the American Civil Liberties Union.
In other words, folks, up is down and down is up in the public square right now. After all, the fierce defense of the First Amendment used to be the very essence of American liberalism. And now?
Note the language at the top of this Washington Post A1 story, a piece that in the current atmosphere is almost radically tolerant of traditional religious believers in a variety of ancient faiths:
Conservative activists said Thursday that they will continue to press for additional legal protections for private businesses that deny service to gay men and lesbians, saying that a defeat in Arizona this week is only a minor setback and that religious-liberty legislation is the best way to stave off a rapid shift in favor of gay rights.
Gov. Jan Brewer (R) vetoed legislation on Wednesday that would have provided a wide variety of religious exemptions to Arizona businesses, after major business groups, prominent Republicans and gay rights advocates argued that it would amount to discrimination.
Many conservatives said they will continue working to convince voters and judges that opponents of same-sex marriage and abortion are motivated by faith rather than bigotry.
“The fight has to be over what the First Amendment is,” said John C. Eastman, chairman of the National Organization for Marriage, adding that his side needs to convince the public that conservatives are not trying to deny the rights of other Americans.
Note, of course, the framing in the lede. Is the question here whether this legislation was a way to “stave off a rapid shift in favor of gay rights” or a way to protect the consciences of religious believers who want courts, in the wake of gay-rights victories, to be able to hear their appeals when state agencies of private citizens attempted to force them to commit acts that violated established doctrines central to their faith?
The desire to protect religious believers, and institutions, was — as recently as the Clinton White House — an issue on which a wide coalition of traditional liberals and conservatives could find strong agreement. We are talking, of course, about the Religious Freedom Restoration Act (RFRA), which President Bill Clinton proudly signed in 1993.
Now in recent coverage, journalists have faced a challenge in a highly-charged atmosphere. On one side the Arizona story were activists who saw SB1062 as anti-gay legislation. On the other side were those who saw it as an attempt to clarify and even narrow the language in Arizona’s own RFRA law.
For journalists, the goal was to accurately and fairly cover the viewpoints of people on both sides of this debate, articulate, informed activists and scholars who represented both of these points of view. Right?
So how did that go?
Writing at The Federalist, GetReligionista emeritus M.Z. Hemingway was blunt, to say the least. Her piece followed 48 hours in which she burned up the Twitter-verse defending RFRA and the need for balanced, accurate coverage of the Arizona law.
Here is the top of her fierce essay dissecting the mainstream media coverage:
In the aftermath of the abominable media coverage of Arizona’s religious liberty bill, an editor shared his hypothesis that journalists care about freedom of speech and of the press because they practice them. And journalists don’t care about freedom of religion because they don’t.
But one of the most interesting things about modern media’s deep hostility toward the religious, their religions, and religious liberty in general is that press freedom in America is rooted in religion.
The John Peter Zenger case of 1735, argued successfully by Andrew Hamilton, wasn’t just an important legal event but an important symbolic event in the development of American freedom of expression. We remember Hamilton’s now-famous plea that truth should be admitted as a defense.
But perhaps we don’t understand that the members of the jury ruled in favor of press freedom because of their belief in the foundational importance of religion and religious liberty. The Zenger press freedom case was a “disputation on truth and on how truth is revealed to man,” noted David Paul Nord in 2006?s “A History of American Newspapers and Their Readers.” This is another way of saying “religion.” In the Cato letters printed in Zenger’s New York Weekly Journal, it was argued that each individual had not just the right but the duty to seek truth in his own way. From the book (emphasis mine):
“Every man’s religion is his own,” Cato declared, “nor can the religion of any man, of what nature or figure soever, be the religion of another man, unless he also chooses it; which action utterly excludes all force, power or government.”
The media now call people who agree with this notion “bigots” or “Jim Crow” types.
Let’s return to the essential news question: Is the religious liberty content of the Arizona debate merely a “conservative” idea, a piece of inaccurate information that journalists should ignore rather than introduce “false balance” into their coverage?
One way to have approached that question was to seek out the view of old-fashioned liberals — scholars, lawyers, etc. — who recognized the connection between RFRA and the Arizona law. On Feb. 25th, one such left-right coalition released a letter (click here for the .pdf) that opened with this statement, which indirectly addresses press coverage issues:
Dear Gov. Brewer:
SB1062, which amends Arizona’s Religious Freedom Restoration Act, is on your desk for signature. The bill has been egregiously misrepresented by many of its critics. We write because we believe that you should make your decision on the basis of accurate information.
Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure. But all of us believe that many criticisms of the Arizona bill are deeply misleading.
The federal government and eighteen states have Religious Freedom Restoration Acts (RFRAs). Another twelve or thirteen states interpret their state constitutions to provide similar protections. These laws enact a uniform standard to be interpreted and applied to individual cases by courts. They say that before the government can burden a person’s religious exercise, the government has to show a compelling justification.
That standard makes sense. We should not punish people for practicing their religions unless we have a very good reason. Arizona has had a RFRA for nearly fifteen years now; the federal government has had one since 1993; and RFRA’s standard was the constitutional standard for the entire country from 1963 to 1990. There have been relatively few cases; if you knew little about the Arizona RFRA until the current controversy, that is because it has had no disruptive effect in Arizona.
Journalists (and news consumers): Please read it all.
As you read it, ask yourself this question: In the major daily news stories about the Arizona law and the governor’s veto — as opposed to online essays and a few sidebars — how often did you read or hear references to the Religious Freedom Restoration Act?
Let me stress, once again, that I am not calling for the RFRA angle to be the defining, framing element of coverage of this issue in Arizona or in other states. I am asking how journalists can accurate and fairly include the viewpoints of RFRA defenders — conservatives AND LIBERALS — in their news coverage.
And, as our presidents always say, “God bless America.” And God bless the First Amendment, too.