Although I sympathize with much of what Senator DeMint and Professor Woodard say in their Web article last week, I think some of their arguments go too far.
The main point that Senator DeMint and Professor Woodard make is that “the First Amendment rights of freedom of speech and the practice of religion” are “everywhere under attack” because groups like the ACLU “use the legal system to threaten people by ‘slapping’ them with lawsuits. . . . The publicity of such litigation results in a vilification of those who take a stand for moral behavior in the hope they will be silent next time.”
The fact that the ACLU has been very active in protecting the free speech rights of perfectly odious groups like the KKK should give one pause here. The ACLU is not against free speech. The truth is that some of the examples that Senator DeMint and Professor Woodard give in the article do not concern anyone’s right to free speech at all.
Take the case of the pregnant cheerleaders. At a certain public high school in Texas, several of the cheerleaders turned up pregnant. The school authorities wanted to remove them from the cheerleading squad but backed down when the ACLU threatened to sue. This, the senator and the professor say, shows that “the community lost its freedom to express and defend traditional values.”
Now, it may be that the Constitution permits public schools to remove pregnant students from leadership positions in student organizations, and perhaps public schools should actually do so (though I have serious doubts about that), but a lawsuit to stop a school from removing students from the cheerleading squad would in no way impair the free speech rights of anyone.
The ACLU did nothing to stop anyone from saying anything whatsoever about the pregnant cheerleaders. The question was whether the government-operated school could change, in a way adverse to the students, the conditions under which they participated in school activities. In other words, could the school, consistent with the Constitution, punish the cheerleaders for getting pregnant? Maybe yes, maybe no, but however that works out, it’s not a question of anyone’s right to free speech. My right to free speech includes a right to say that your child is a low-down, good-for-nothing so-and-so; it does not extend to punishing your child for her behavior.
Compare this case. In the famous mystery passage in Casey, the Supreme Court said that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—and thus there is a right to abortion. This, of course, is perfectly ridiculous. Even though people have an undoubted right to believe whatever they want about abortion, a right to hold a belief does not generally imply a right to implement that belief—not in private conduct and certainly not in government conduct. Similarly, the right to think and even to say that teenage girls who get pregnant have behaved badly and ought not be held out by government institutions as role models does not imply that the government may in fact punish female public school students who get pregnant. Again, perhaps the government may do this—but if so, it has nothing to do with the free speech rights of those who want it done. It has to do with the absence of a right to be protected from such government action on the part of the student being punished.
When moral traditionalists cast their arguments, as Senator DeMint and Professor Woodard do, in terms of the speech or religion rights of the majority, they thus misunderstand the situation. The ACLU is perfectly right when it answers such arguments by saying that it doesn’t want to interfere with what those in the majority say or how they practice their religion. The issue concerns the use of government power against members of the minority. The proper limitations on such use is a very difficult question, and it cannot be settled by appeals to the rights of the majority under the First Amendment.