Religious Freedom Reimagined?

Every year the Anti-Defamation League (ADL) holds a panel discussion on the just-concluded term of the U.S. Supreme Court. Broadcast live from the National Constitution Center, this year’s panel — consisting of legal experts Dean Erwin Chemerinsky, Frederick Lawrence and Dahlia Lithwick — reviewed the 2016-17 term, which ended in June. They covered topics ranging from free speech and transgender rights to an analysis of the court’s newest member, Justice Gorsuch. They also discussed an issue of particular interest to the Jewish community: the separation of church and state, raised by a Supreme Court case with potentially far-reaching implications. [Read more…]

The Blessing of Separating Church and State: Is It at Risk?

– Alan Garfield

Why would we want to separate church and state? Isn’t religion a positive force in society? Doesn’t it foster ethical behavior and encourage charity? Just think of all the church-run soup kitchens or the moral leadership provided by the Rev. Martin Luther King Jr.

So why would the framers build a wall separating church and state? Why not unite the two and combine their power for good?

Prof. Alan Garfield.

Prof. Alan Garfield.

Of course, the Constitution never explicitly says that there must be a wall separating church and state. But the First Amendment does say that “Congress shall make no law respecting an establishment of religion.” In a landmark 1947 decision, the Supreme Court explained that this clause was “intended to erect ‛a wall of separation between church and State’” and that this wall “must be kept high and impregnable.”

What were the framers thinking? Were they opposed to religion? Were they at war with Christmas?

Certainly not. Most were religious themselves.

The framers merely knew their history. And history taught them that combining church and state produces a volatile brew that is good for neither church nor state. [Read more…]

News Media Need to Protect Us From Fake News

Screen shot of the Constitution Center’s panel with Susan Glasser (left), Glenn Kessler (center), Brian Stelter (right).

A vigorous free press is central to our Republic. If any part of the government fails in its duty or oversteps legal bounds, we expect the news media to alert all of us to the facts, and bring judges, legislators, police, private citizens and organizations into action to remedy the problem. Without the news media, minorities and the less fortunate in our society would be the first to suffer inequality and ultimately loss of freedom.

But how does this work in an age when facts and “alternate facts” appear together, seemingly indistinguishable, in the new media that people are tuned to? The National Constitution Center on Independence Mall in Philadelphia took up the question under the heading, “Defining Truth in Modern Politics.”

With this very hot topic, the Constitution Center presented a very tepid discussion. Three journalists, including Susan Glasser, Politico columnist and weekly podcast host, Glenn Kessler, fact checker for the Washington Post, and Brian Stelter, host of the CNN program Reliable Sources, responded to questions from Tom Donnelly, senior fellow at the Center, in a program on May Day.

The panelists agreed that the media are under attack, notably from President Trump with his charges that they publish “fake news.” Kessler contrasted the situation today and 30 years ago and said that at the time, the New York Times, Washington Post and other respected newspapers, Newsweek and Time magazine, and a few respected broadcasters (think Walter Cronkite), laid down the facts. Battles centered on the opinions that could be drawn from those facts, but not the underlying truths.

But that is no longer the model in our internet age. Today, millions of Americans draw their news from the Internet, talk radio and similar sources. Some sources still practice traditional investigative journalism to produce real facts. But others freely run with rumors, false claims and propaganda — untested assertions, if they are surprising and eye-catching, get retweeted and repeated until they appear to be established facts.

Kessler, the fact checker, noted that the scope of his activity does not include opinions, just facts. Within that delimited area, he can handle only those claims that can be readily checked from available sources. That leaves out a great deal.

Stelter traced the current battle over “fake news.” It began with allegations by newsmen that then presidential candidate Donald Trump was spewing false information. The example given was Trump’s campaign claim that he would cut prescription medicine costs and save Medicare $300 billion per year, when in fact the total bill that Medicare pays for prescription medicines is closer to $70 billion. Stelter considered that perhaps Trump tried to recover from the blunder by accusing the news media of publishing “fake news.”Adding to the problem, the panelists noted the tendency for people to read and listen to only those news outlets that agree with their political preferences. The media play to this element by segregating themselves on the political spectrum. The panelists had no suggestion as to how to move people out of their “bubbles,” except to recommend it.

The panel’s prognosis is not optimistic: they recognize that the traditional media face a breakdown in their business plan built around people paying for information. Stelter suggested that in 10 years there might be more daily newspapers, such as a Sunday edition sold at a substantially higher price than today.

The panelists urged us to recognize the difference in quality of different information sources. But Kessler pointed out the limited independent fact checking that can happen in our system, constrained by time and the difficult economic issues facing traditional newspapers. So, although acknowledging the problem, this panel had few specifics to offer to correct it. Neither did they express any thought that it will right itself.

We can do better.

Generating fake news, including disinformation so extreme as to be unbelievable, is a technique for getting attention and coverage in the respectable press. A transparent falsehood may attract disproportionate press attention, bringing coverage and publicity to the faker.  The professional media ought to be very cautious not to give such prominent attention to fakery as to make it a successful strategy for those seeking publicity.

The most immediate remedy against fake news should be found among journalists. Responsible journalists must speak out against fake news, not just to each other but in loud unmistakable voices to the world. Even this panel on truth in publishing showed no interest in specifying which journalists and media need reformation.

From a mistaken sense of obligation to be even-handed, the media treat those who propound fake news as if they are respectable sources. In this complicated age, the journalists and news media need to step up to the task. If they are going to report faulty or unvalidated material, a disclaimer is needed. The prominence given the material must be reconsidered in light of the tendency for listeners to choose to believe too much.

Longer term, putting civics back into elementary and high school curricula could be very useful. Education to prepare students for life on a planet of the electronic media should include training in finding the indicia of authenticity and the opposite. The evils of crowdspeak also need to be emphasized and taught from actual cases.

We might also need rating agencies. In a society that ranks innumerable services, including entertainment programs, books, movies, appliances, repair services, and so many others, applying our penchant for quality of the media is a logical next step.

The government should not rate the news media, because of considerations of freedom of speech and the press under the First Amendment. Any effort in that direction would be a serious threat to the independence of the news media.

But ratings do not need to be done by government. Taking a page from the financial markets, bonds are sold in the billions of dollars to buyers who do not initiate independent evaluations of the quality of each instrument. Bond rating agencies are private entities that evaluate the quality of the issuer and the confidence that the commitment in the bond will be fulfilled.

News media could be evaluated on their careful, thorough practices applied to a story before it is published. The media have accepted standards of care to apply before releasing an article. There are also accepted forms of language, when a decision is made to publish, that disclose uncertainties or limitations that may remain in an article.

The National Constitution Center presents an ongoing program of talks on topics related to the Bill of Rights, listed at constitutioncenter.org/debate.

Watch Brian Stelter admit to accidentally spreading “fake news:”

The Fourth Estate is not Mar-a-Lago: The Sacred Duty of the Press

The First Amendment Graphic TheRadmal.com

The First Amendment. Graphic: TheRadmal.com

The Fourth Estate (the Press) is not one of  Trump’s real estate properties. It is time for both sides to get back to work.

The Free Press has a sacred place in the American system of government. The Founders knew the extraordinary responsibility they entrusted to the Press to use their reporting as a supreme check and balance to the power of each branch of Government. The First Amendment of our Bill of Rights guarantees that this voice is exercised to preserve, protect and defend our country from the corruption that power can bring. Whether the Press fulfills this responsibility, or that the work is appreciated, is open to question. [Read more…]

Writers Resist: Liberty

Independence Hall. Photo: Wikipedia

Independence Hall. Photo: Wikipedia

Philadelphia WritersResist: United for Liberty. Writers will be reading seminal Philadelphia freedom texts from the American Revolution to the 21st century to protest the potential erosion of cherished American rights such as free expression in the wake of the 2016 Presidential election.

Writers Resist Restrictions on Free Expression

Independence Hall. Photo: Wikipedia

Independence Hall. Photo: Wikipedia

Over 35 prominent Philadelphia authors, journalists and poets will read for hundreds of members of the literary community and concerned citizens at Philadelphia Writers Resist: United for Liberty on Sunday, January 15 at 2 PM to protest the potential erosion of cherished American rights such as free expression in the wake of the 2016 Presidential election. The event will be held at the National Museum of Jewish History and is free and open to the public.

“Philadelphia Writers Resist: United for Liberty” will take place in sight of Independence Hall. It will feature Beth Kephart, Liz Moore, Thomas Devaney, Nathaniel Popkin, Herman Beavers, Lorene Cary, Carmen Machado, Fran Wilde, former Philly Poet Laureate Frank Sherlock, and dozens of other members of the local literary community. Many of them will be reading seminal Philadelphia freedom texts from the American Revolution to the 21st century.

It’s one of 50 simultaneous Writers Resist events around the US, which will include readings and speeches by authors like Cheryl Strayed, Alexander Chee, and Mary Karr, former U.S. Poet Laureates Robert Pinsky and Rita Dove, and journalist Amy Goodman.

“Writers Resist” was conceived by poet and literary activist Erin Bilieu. She became concerned during the recent Presidential campaign about public cynicism and the disdain for truthfulness that have eroded democratic ideals.

“Writers are acutely aware when the uses of language are empty,” she said. “Whether you live in a red or blue state, or another country that cares deeply about the American experiment, there is no more important battle than our right to truth.”

“Philadelphia Writers Resist: United for Liberty” is being organized by local authors Nathaniel Popkin, Alicia Askenase, and Stephanie Feldman.

“We’re bringing together writers at the birthplace of American freedoms, and we’ll be reading from historic texts to remind us of the legacy we all need to protect,” says Popkin. “We’re coming together because as writers we must speak up for the First Amendment, for dignity and truth.”

FOR MORE INFORMATION
“Philadelphia Writers Resist: United for Liberty” Facebook page #WritersResist. “Writers Resist” is a national network of writers driven to #WriteOurDemocracy by defending the ideals of a free, just and compassionate democratic society.

EVENT DETAILS
“Philadelphia Writers Resist: United for Liberty”
Sunday January 15, 2017
National Museum of American Jewish History, Dell Auditorium
5th and Market Streets
2-5 PM
Free and open to the public.

The Limits of Freedom of Religion

Since the Supreme Court pronounced that a corporation can have religious rights, a number of new cases have been emerging, seeking to stake out broad additional territory.

In the Hobby Lobby case, the Court found that a closely held business corporation had religious rights, and could deny its employees contraceptive health insurance coverage called for under the Affordable Care Act. But that ruling may be only the beginning of a new chapter in the law of religious freedom under the First Amendment.

A few years ago the Pennsylvania Department of State, the agency that processes incorporation papers, refused to accept an application for the title “I Choose Hell Productions LLC” because it contained blasphemy. The Department rested its refusal on a law against blasphemy in corporate names, and argued in support of the law that the public should not be exposed to inflammatory language. The federal court hearing the case ruled that the law was an unconstitutional effort to advance religion.

But what about a law that is entirely neutral – that does not deal with religion at all? Polygamy is unlawful across the board, even though a few religions allow it. A law against cruelty to animals will be effective against animal sacrifice if the law is conceived and worded neutrally, and not as a reaction to a particular religion.

Simons Looking back by Stevie

A Jewish lesbian wedding in Colorado. Photo by Steve Crecilius.

However, in Hobby Lobby, the Supreme Court ruled that a corporation for profit could avoid complying with a provision of a totally neutral law – the Affordable Care Act – to provide insurance that includes benefits for contraceptives, if the owners of the business have a religious scruple against use of the abortifacient medicines at issue. Since then, it has been open season on religious exemption claims.

Several states have extended to gays the protection of their laws against discrimination in employment, housing and commerce. In Colorado, a cake baker refuses to prepare wedding cakes for LGBT weddings. The baker justifies his refusal on grounds of his religious beliefs. A gay couple challenged the refusal before the state human relations agency and won. The baker is appealing to a court from agency’s the ruling against him.

In New York, a catering hall that usually handles weddings refuses to rent out for gay weddings. A gay couple who were refused a booking complained to the New York State human relations agency and were successful. The wedding hall is appealing to the state courts.

What is the right answer to these cases? The traditional response is rendering up to Caesar: Those who engage in commerce must accept the burden of the laws that cover matters such as trade and employment. The newly emerging answer may be that individual religious scruples are protected, even in the commercial marketplace.

As a minority, Jews might prefer the new and enlarged version of the First Amendment protection of religion. Maintaining our religious practice without any accommodation is certainly very difficult at times.

Or we might conclude the opposite. Consider that the baker might have anti-Semitic “scruples” along with his belief against gay marriage. The wedding hall could prefer not to accept events that bless a marriage without mentioning the Christian sacraments.

Large urban centers have plenty of bakers and wedding halls, but other areas, where few Jews live, may also have few of these services. Should the views of such services’ owners – even the sincerely held religious views — exempt the businesses from the anti-discrimination laws of their states or of the federal government?

As the new cases move along, we will find out.