FISH WRAP: WEEK ENDING 8/5/12

by E.C. Fish on August 6, 2012

As predicted, I returned from my brief holiday tanned and rested, if a bit light on souvenirs (I was flying out standby and was limited to a large carry-on), and straight into a slow but steady news week. With the Olympics dominating and in some cases preempting news programming (we miss you, Chris Hayes), and with the annual late-summer silly season in full swing, we were pretty much left with the following:

ISSUE OF THE WEEK — THE FIRST AMENDMENT: Before we get started, a little Schoolhouse Rock! for y’all. The First Amendment goes like this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This bears repeating, as very few people seem to know it. As bandied about as the First Amendment is, there is precious little evidence that those doing the bandying have a clue what they’re taking about. In the most recent First Amendment Center survey, large majorities of Americans were unable to name all five of the rights guaranteed by the First Amendment, with fully 27% unable to name any at all.

The only one of the five recognized by an actual majority (65%) was freedom of speech, with freedom of religion a distant second at 28%. Not coincidentally, it is these two rights that have been in the news this week, mostly for having been grossly misinterpreted, to wit:

TAKE, EAT, FOR THIS IS A CHICKEN SANDWICH: Wednesday was Chick-fil-A Appreciation Day, so declared by former Arkansas governor and conservative commentator Mike Huckabee in response to multiple calls (including one from the Muppets) for a boycott¬† of the fast-food chain over corporate contributions to anti-gay groups. The event managed impressive showings by food-court standards, drawing crowds and a great deal of media attention, though those on the right who have tagged it a preview of how polling places will look on Election Day have another think coming.¬† Turnout was no larger than one would expect at, say, a Mike Huckabee speech, and it’s more than a bit debatable whether those who would turn out for Huckabee would do the same for a formerly pro-choice, pro-gay rights Mormon. Huckabee got his point across, in any case, and give or take the spectacle of conservative commentator Huckabee pushing deep-fried foodstuffs that diet-book author Huckabee wouldn’t touch with a ten-foot fucking bargepole, so far so good, especially from a constitutional standpoint.

Except for a couple of things, like the fact that Sarah Palin, among countless other Fox News panelists, bloggers, and talk radio jocks, described the boycott itself as a threat to the company’s First Amendment rights (as newly recognized by the Roberts court) of free speech and freedom of religious practice. While nonsense, this is nonsense in keeping with a sort of simpleminded understanding of free speech that interprets the First Amendment to mean that one can say whatever one wants without fear of consequence or reprisal, something the above words neither say nor imply. With rights implying equally to everyone — including critics, naysayers, and boycott organizers — the message of the First Amendment where free speech is concerned might best be summed up as, “If you can’t take it, don’t dish it out.”

And also except for the fact that Boston mayor Tom Menino, Chicago mayor Rahm Emmanuel, and a Chicago alderman arguably did threaten Chick-fil-A’s rights. In a display of complete constitutional ignorance worthy of your average wearer of tea bag hats, all three strongly implied governmental action against the company because of the values it supports, something the First Amendment was designed to prevent in the first place.

WOMEN’S HEALTH CARE UNCONSTITUTIONAL?: Wednesday also marked the beginning of the women’s preventive health care provisions of the Affordable Care Act, or as Rep. Mike Kelly (R-PA) would have it, a “day of infamy” on a par with 9/11 and Pearl Harbor and “the day religious freedom died in America.” Other House Republicans followed suit, and Senate Majority Leader Mitch McConnell moved — yet again and somewhat reflexively — for repeal.

All these objections hinge on the idea that, despite an explicit exemption for nonprofit religious organizations, the Act’s provisions for contraceptive access and contraceptive education represent a violation of the First Amendment’s protection of religious freedom. Conservative activist Brent Bozell, sounding marginally less hysterical than Representative Kelly, stated, “August 1 marks the day when many family-owned and -operated businesses lose their rights to exercise their faith in their daily lives. . . . With the stroke of a pen, the Obama administration has shredded the First Amendment and the Constitution right before our eyes.”

Which might be the case, if the First Amendment actually provided the sort of social conscientious objector status such a guaranteed primacy of individual conscience would imply. It doesn’t. Here again, one’s rights end where the rights of another begin. The mere fact of hiring a person, with all the legal requirements on both sides that doing so entails, does not give one title to that person’s ability to make decisions based on the dictates of a conscience that might not match one’s own.

Listen: the government does many, many things with my tax dollars, quite a few of which I object to quite strongly. Were I to stop paying taxes for that reason, the government might very well fall on my head like a million-pound shithammer. That’s life — welcome to the world, folks; sorry you’re too good for it.

Then again, I’m an atheist, and therefore might not count. . .

Despite their borderline hysteria, conservatives do have a point about the First Amendment being threatened. It is, daily, by the sort of arguments they use in dealing with it and by the sort of widespread ignorance that allows them to make such arguments and still be taken seriously.

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E.C. Fish is the editor and publisher of The Spleen.

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