Washington Post implies First Amendment protects obscenity, but not a church

Washington Post implies First Amendment protects obscenity, but not a church
Image: Washington Post cover screen grab

The First Amendment explicitly protects the “free exercise” of “religion.” It doesn’t say anything about obscenity, and the Supreme Court has said for generations that obscenity isn’t covered by the First Amendment.

But the Washington Post recently ran a “news” article implying that the First Amendment protects obscenity, and prioritizes it rather than icky religions. The article depicts a Minnesota city council in a negative light because it did not prevent a white separatist fringe denomination from operating a church in the town, even as cities enforce laws against obscenity.  The Post recognizes that the city would have been sued under the First Amendment if it had prevented the church from operating. But it suggests it was hypocritical for the city to tolerate the church, given that cities often restrict other expressive practices, like panhandling and obscenity. It approvingly quotes a progressive sociology professor, saying she “noted that cities routinely restrict the First Amendment over issues it prioritizes, such as anti-panhandling ordinances or obscenity laws.”

Only liberal reporters and academics could view obscenity as more protected by the First Amendment than a church. The Supreme Court has said that obscenity is not protected by the First Amendment, in decisions such as Miller v. California (1973) and Alexander v. United States (1993). So it is absurd for The Post to suggest that the First Amendment “prioritizes” obscenity.

By contrast, even very unpopular or icky religions are protected by the Constitution’s free exercise clause, as the Supreme Court ruled in Church of the Lukumi Babalu Aye v. City of Hialeah (1993). They are protected even if they have hateful views — the Supreme Court struck down a city’s hate-speech ordinance in R.A.V. v. St. Paul (1992), finding it violated the First Amendment’s free-speech clause.

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The Post suggested the city council’s action was a reflection of a racist legal and political system, rather than just compliance with the First Amendment. To some readers, the Post article suggested that the First Amendment itself is racist.

It sympathetically quoted sociology professor Laura Nielsen, a critic of the First Amendment, stating that in the current “legal and social environment,” “white people tend to win.” In reality, the courts routinely rule in favor of non-whites — including black people and non-Christians — in First Amendment and religious-freedom cases. That includes the anti-white Nation of Islam.  So the same First Amendment that protected the fringe church protects people and denominations of all kinds.

The Post’s story describes how the city council in Murdock, Minn., voted Dec. 9 to grant a permit that allows the Asatru Folk Assembly, a white separatist group, to gather at an abandoned church it bought. As the Post conceded, city leaders “were advised that denying the AFA’s permit could leave Murdock vulnerable to” a “religious discrimination suit.” Thus, “the First Amendment” left the city no choice, a council member said. (Although the Post didn’t mention it, the Supreme Court has ruled that the government can’t regulate churches’ membership and leadership decisions, even if they are discriminatory).

But the Post viewed the city’s action with a jaundiced eye, illustrated by this passage:

Murdock’s issue underscores the deficiencies with the First Amendment and exposes a lack of neutrality in who it really protects, argued Laura Beth Nielsen, who chairs the Sociology Department at Northwestern University and wrote the 2004 book “License to Harass: Law, Hierarchy and Offensive Public Speech.”

Hate groups have long exploited their religious status for First Amendment cover…

Nielsen, the Northwestern sociologist, noted that cities routinely restrict the First Amendment over issues it prioritizes, such as anti-pandhandling ordinances or obscenity laws. “Even though the First Amendment is supposed to operate in this neutral way, when you dig in, hate speech against racial minorities is protected…In the big picture, the First Amendment is reinforcing who already has power.”

The idea that the First Amendment is applied selectively “against racial minorities” is wrong. Minorities are as likely to win a First Amendment case as a similarly-situated white person. Minority religions often invoke the First Amendment: Many mosques have successfully sued cities that denied them a permit to operate. The Nation of Islam, an anti-white religious group composed of racial minorities, has successfully appealed to the courts for religious-freedom exemptions from antidiscrimination laws, in cases such as Donaldson v. Farrakhan (2002).

By contrast, white separatists and segregationists have lost challenges to rules mandating that they admit black people on equal terms to once-segregated educational institutions. The Supreme Court rejected a religious-freedom challenge in Bob Jones University v. United States (1983), and a freedom-of-association challenge in Runyon v. McCrary (1976).

Why did The Post run such a slanted, biased article? Because biased, inflammatory articles attract more web traffic, and enable The Post to charge more for subscriptions, by building the newspaper’s rapport with its progressive reader base. It may damage the Washington Post’s credibility in the long run, but in the short run, it makes The Post more profitable, helping it expand its staff in 2021 by 15%.

Many people want to read a story with clear heroes and villains, not to hear both sides of the story. They want to read a newspaper that reinforces their worldview (which, for the most loyal Washington Post readers, is a progressive worldview). Such people will pay a higher price for a newspaper that shares their ideology and is their ally, than for an ideologically neutral paper that provides balanced news coverage.

In response to the misleading claims about the First Amendment made in The Post’s slanted, biased article, the well-known lawyer Ken White asked the reporter who wrote the Post article two questions on Twitter, to which she predictably did not respond.

First, White asked, “did you consider consulting someone who might have offered a different perspective than ‘the First Amendment protects white people,’ like, for instance, someone who knows this issue has mostly arisen recently when towns try to prevent mosques from opening?” He also asked, “Did you consider speaking to a First Amendment lawyer, or even an academic who isn’t a First Amendment critic, to provide context about how clearly right the white nationalist church’s lawsuit would have been?”

These questions were valid, but were also naive about how progressive journalists operate. They are not interested in reporting both sides of the story, or quoting someone like Ken White who knows a lot about the First Amendment.

The Post reporter wanted to tell a simple morality tale about good and evil, and society being mean to minorities, that progressive readers would relate to, so that they would be willing to pay full price for an overpriced subscription to the Washington Post. Not to talk to a First Amendment lawyer who would disrupt her ideological narrative or complicate her story.

Washington Post reporters know how to reach a First Amendment lawyer, they just don’t want to. I’ve given Washington Post reporters the email addresses of leading First Amendment experts like UCLA Law Professor Eugene Volokh, a practicing lawyer, and the author of “The First Amendment and Related Statutes.” Post reporters don’t want to talk to him, even though he used to blog at the Washington Post.

I used to practice constitutional law, so back when the Washington Post was less ideological, I got quoted in the Washington Post. Reporter Susan Svrluga quoted me about First Amendment issues, as did Post columnist George Will. But Post reporters don’t contact me anymore, even though they know how to reach me. Quoting me would conflict with their pro-censorship ideology.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.”

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