Free Speech? Yeah, Right!
by Conrad F. Goeringer
(exclusive for Positive Atheism)
June 23, 2000
Freedom is not a reward or a decoration that is celebrated with champagne. Nor yet a gift, a box of dainties designed to make you lick your chops. Oh, no! It's a chore, on the contrary, and a long-distance race, quite solitary and very exhausting..."
-- Albert Camus, THE FALL
When Jay Sekulow rose to address the justices of the U.S. Supreme Court last March in the case of Santa Fe Independent School District v. Doe, he knew that his clients faced an uphill legal contest. The case involved a policy established by the Santa Fe Independent School District in Texas which permitted students to vote and elect one of their rank who would deliver a "message" before the popular weekend football games. The scheme had originally described the oration as a prayer and "invocation," but hoping to pass constitutional muster, the wording had been conveniently changed. The prayer was now a "message," which was supposed to encourage solemnity and good sportsmanship.
Sekulow is an attorney and head of Pat Robertson's American Center for Law and Justice (ACLJ). The Santa Fe case had become the centerpiece of a novel if convoluted legal strategy to begin rolling back the slew of U.S. Supreme Court cases from the early 1960s which had restricted official prayer in the public schools. In the 1962 ruling in Engel v. Vitale, the high court struck down a government-composed prayer invented by the State of New York. That rogation, dubbed "the Regent's Prayer" had been formulated as a "nonsectarian" invocation which presumably would be acceptable to any and all religious faiths (never mind those pesky nonbelievers!), sufficiently vague and pliable to meet with theological consensus from Jews, Christians and others, yet robust enough to stir one's religious heart strings and attract the attention of the appropriate deity in the process. The following year the justices ruled in the combined cases of Abington Township v. Schempp and Murray v. Curlett, striking down unison prayer and Bible verse recitation in the public schools. All of these practices, declared the Supreme Court, established religion, favored one religion over another -- and religion, in general over nonbelief -- and violated the separation of church and state.
Over the next thirty years, there were numerous congressional attempts and legal nostrums proposed to undo these rulings. Capitol Hill solons crafted legislation permitting "voluntary prayer." Those who objected to a particular invocation in the classroom would be free -- in theory anyway -- to head to the nearest exit while their peers bowed heads, clasped hands and mumbled supplications to the god or gods of their choice. The Supreme Court had already discussed this scheme, though, in the 1963 rulings, noting that high school students in particular were a captive audience, and that those who chose not to participate in a prayer faced isolation, harassment and banishment.
Devising a way around the court rulings became a cottage industry. School prayer supporters attempted to minimize the "entanglement" between school authorities and the prayer by calling upon volunteers. Even though a teacher or administrator might not be leading the invocation, though, the presence of an outside clergyman still conveyed the impression of government endorsement of religion. In 1991, the Supreme Court granted certiorari to hear the case of Lee v. Weisman and soon ruled that clergy led prayer at a high school graduation ceremony violated the establishment clause of the First Amendment.
That left prayer advocates, at least those who wanted orchestrated and formal prayer in schools, with little recourse.
Jay Sekulow, though, thought he had another option. Why not argue that the prayer was thoroughly legal and constitutionally proper since it had nothing whatsoever to do with the state? The Santa Fe prayer plan, Sekulow told the justices of the high court, wasn't really a prayer at all; it was an example of student initiated, student led "free speech," and thus protected by the First Amendment.
It was a somewhat novel, if disingenuous strategy. It dovetailed nicely with another claim which attorneys defending the school district offered the Supreme Court; that the "prayer" wasn't a prayer at all, it was a ritual of "solemnization," a kind of rhetorical gavel that underscored the dignity of the occasion. This was a more seasoned argument which had been made in the 1980s in several cases which challenged prayer at city council meetings. Across the nation, government attorneys had argued that the mutterings of a visiting pastor, priest, imam or some other Divine, had nothing to do with religion but were, in fact, instrumental in setting a tone of ceremonial dignity. Presumably, stress-prone government officials desperately needed the soothing one-minute supplication to a god before they could buckle down to the weighty business of discussing sewer district bonds and the appointment of a new animal control director. Everyone knew that it was a prayer, of course, and presumably a local Satanic Priest lacked the proper training to dignify such a government meeting whereas the nearest minister or priest, or even a rabbi, was quite up to the task.
When the decision came down on June 19, 2000 in the Santa Fe Independent School District v. Doe decision, six of the justices failed to be persuaded by Mr. Sekulow's "free speech" arguments. Justice John Paul Stevens, writing for the majority, rightly observed that "student led" prayer still relied on the same captive audience principle the court had warned about 37 years before in Abington and Murray. Those wishing to attend a football game had to pay more than the fare of possibly seeing their team lose. A ticket holder -- or a cheerleader, soda vendor, even the players themselves -- were required, illegally, to be subjected to a prayer. The whole policy, added Stevens, involved government establishing rules for the selection of the speaker and, ultimately, the content of the "message," invocation, or whatever other term might describe the pre-game religious rant.
No sooner had word of the ruling in Santa Fe hit the news wires than Sekulow and other school prayer boosters were decrying the "censorship" of student initiated speech. Pat Robertson soon weighed in on his "700 Club" program, excoriating the high court as a council of oligarchs imposing their will on the citizens of Texas and the rest of the United States. It was portrayed as a legal Apocalypse for free speech. Was it?
Methinks the religious right protests too much.
We might point out, as have the Guidelines issued by the Secretary of Education, that religious students are quite free to pray, mediate, study religious materials or talk about religion on their own time -- during lunch, going to and from school, during class breaks, while at home and, yes, on Sunday morning (or Saturday if that is your day of choice for talking to god). There is an abundance of venues for freely and even openly engaging in such pursuits. There are 350,000 or so churches, temples, mosques, chapels and other "houses of worship" in the United States, not counting private homes used for religious meetings, and those auditoriums and rental halls which house weekend congregations. Most of these properties are tax exempt. Believers of all creeds may visit them to pray, light candles, burn incense, genuflect, sing songs, or do whatever else they feel is necessary to attract the attention of their god. Despite Santa Fe Independent School District v. Doe, we have yet to see those Supreme Oligarchs leading The Atheist Police in raids on the corner church.
There are the other arguments, too, which we separationists know by rote. When senior Rachel Ward took the microphone last year to deliver her prayerful "message" to a throng of football fans at her high school, she was using school resources and public property to proselytize her own sectarian beliefs. Even the 11th Circuit Court, which had upheld the constitutionality of a "nonsectarian and nonproselytizing" prayer at graduation ceremonies, found the tough, gritty venue of a Texas high school football game an inappropriate setting for religious exercises. Simply as a matter and taste and decorum, Ms. Ward should have refrained from choosing the Friday night gridiron tussle as a time for prayer.
Then there is the matter of hypocrisy. It is strange to see the likes of Rev. Pat Robertson and his legal eagle, Jay Sekulow, suddenly draping themselves in the mantle of free speech and the First Amendment. Ditto that for those school boards, administrators, public officials and other prayer advocates in Texas and throughout the nation who are talking about censorship and the sanctity of free expression as if they were born-again members of the American Civil Liberties Union. The record suggests that school administrators (especially in Texas) are notorious for censoring speech when it involves students. Try publishing or distributing an "underground" newspaper or magazine on a typical American high school campus. Try expressing yourself with a controversial T-shirt -- one perhaps that bears the visage of Marilyn Manson or the band members of KORN. Try sporting a too-long or too-short or too-colorful head of hair. Students have even come under attack for setting up off-campus sites on the Internet that criticize teachers and administrators. And just try showing up to school wearing a trench coat!
In Texas, especially, one searches in vain for any sight or scent of Rev. Robertson or the local ACLJ legal swat team riding to the defense of school librarians who want to keep even recognized American literary classics on the shelf. The Banned Books 1999 Resource Guide published by the American Library Association, shows that controversies over library materials erupted in 47 Texas towns and cities last year. From Alamo Heights to Corpus Christi, from Dallas to San Antonio, free speech -- and the right to read -- were under attack. The targets included Maya Angelou's I Know Why the Caged Bird Sings, A.B. Gurthrie's The Big Sky, and even The Diary of a Young Girl by Anne Frank.
Robertson's credentials as a born-again free speech voluptuary ring hollow in light of his own political agenda. As founder of the Christian Coalition, Robertson was among those leading the charge to censor material on the internet through passage of the Communications Decency Act.
The war on free speech, especially the free speech of students, comes from many quarters. In the post-Columbine hysteria, students were quickly stereotyped as both a grotesque class of helpless victims, the prey of internet stalkers and gun-toting maniacs, to a generational clan on the verge of running amok and storming the SUV-lined streets of bourgeois suburbia. "Free speech" was something that religious leaders, pundits, and politicians cared little for in the feverish quest for "an answer" to a handful of school shootings involving a minuscule percentage of youngsters. Parents, check those hard drives and be sure to snoop on your kid's e-mail. Church services were proposed as a healthy tonic to teen rebellion. Indeed, Cassie Bernall, one of the victims of the Columbine rampage, had been an obstreperous young lass who flirted with devil worship and drugs before her stint in a Christian boot camp of sorts. No one was talking about free speech, except possibly that there is too much of it.
Then came the issue of prayer, specifically student-led prayer. The prayer may not be so "student led" when off-campus religious groups are often encouraging and organizing the religious activity. It also has little to do with "private speech," another phrase used liberally by Jay Sekulow, and which appears frequently in ACLJ broadsides aimed at the Supreme Court. There is nothing "private" about Marian Ward or any other elected student gripping a microphone attached to the school public address system during a school sponsored athletic event, and lecturing the assembled multitudes. There is nothing "private" in a huddle of a couple dozen testosterone-charged football jocks ready to take the field and reek havoc on the opposing team, first bowing their heads in prayer and supplication for all (including the nearest news camera) to see. Nor is there anything "private" about groups of any kind, students or adults, speaking out loud their religious pleadings for others to see to hear.
My guess is that if Marian Ward or some other student took the microphone at a football game, graduation ceremony or school assembly and said something really controversial, Jay and Pat would be busy elsewhere. If Ms. Ward chose to remark on the need for, say, sex education in schools, or perhaps criticize some government policy, local school and government officials would not be enthusiastically rushing to her defense and praising her right to "free speech." If students in Santa Fe Independent School District decided to organize a Gay Rights Support Club or (gasp!) an Atheist Group, all of the sanctimonious talk about private, student speech and the primacy of free expression would evaporate like a small pool of water under the hot Texas sun.
Free speech? Yeah, right!