On August 31, 2007, the president of Clemson University opened a letter from the South Carolina chapter of the American Civil Liberties Union that read, “Coach [Tommy] Bowden . . . has abused his authority as . . . head football coach by imposing his strong personal religious beliefs upon student-athletes under his charge.” In published reports, cited in the letter, the coach encouraged his players to attend one church service as a team during the two-a-day practices each preseason.
Even though “Church Day” was voluntary, and those who declined to attend suffered no penalty on or off the field, the ACLU urged the university president to end the practice of Coach Bowden taking his team to church. This practice of legal intimidation, directed at both individuals and organizations who affirm traditional values, we label as SLAPP, for “Strategic Lawsuits Against Public Participation.” The ACLU ploy is not new; it invokes the requirement of “pluralism” to secure submission to the doctrine of a secular, naked public square. Anything religious, especially if it is associated with the religion with which nine of ten Americans identify, must be denied public salience. The free exercise of religion becomes synonymous with “theocracy,” and its practice declared to be a threat to democracy and the public order.
Few issues are as important today as the protection of the First Amendment rights of freedom of speech and the practice of religion. These rights are the most treasured benefits of living in a free and democratic nation, and they are more than a help; they are foundational principles that promote and protect a healthy democracy. Today these fundamental freedoms are everywhere under attack, and the positive influences and societal protections they afford have been routinely ignored by new elites allied to government power and anxious to advance a new agenda.
The SLAPP strategy uses the legal system to threaten people by “slapping” them with lawsuits to create a media frenzy. The publicity of such litigation results in a vilification of those who take a stand for moral behavior in the hope that they will be silent next time. In the case of Coach Bowden, the university found “no evidence that there [was] any ‘coercion’ or ‘undue influence’ . . . nor is there any evidence that there is any punitive or other negative consequences” for those who decline the coach’s church invitation. No matter. In a SLAPP lawsuit, even if the moral position is successfully defended in public and in court, the adverse media attention can turn a legal victory into a public relations defeat. No high school coach would dare take his team to church after the adverse publicity Coach Bowden received. The ACLU responded to the Clemson letter by saying they would “wait and see” about what happened when preseason practices resume in August 2008. In other words, “back down or prepare to pay the price” in court.
The use of courts to silence opponents is not new, of course. Plato in the Apology quotes Socrates as saying to Meletus, one of his accusers: “You see, men of Athens, this fellow seems very arrogant and intemperate to me and to have written this indictment out of some sort of insolence, intemperance, and rashness.” No better description of an ACLU-inspired SLAPP lawsuit has ever been written. The difference between today and Athens circa 400 B.C. is that Socrates paid for his convictions with his life, while the ACLU's present purpose is to create a media environment of intimidation that results in people losing heart and shutting up.
Strategic lawsuits to limit public participation have been used by the ACLUand other groups such as Planned Parenthood, the National Abortion Rights League, National Organization of Women, and the Human Rights Campaign Fundto silence the voice of moral reason in America. We cite a number of these incidents in our book, Why We Whisper, but we want to stress that it is not necessary to sue in today’s media-rich environment; the mere threat of a lawsuit is sufficient. Take, for example, the case of the pregnant cheerleaders at Hempstead High School.
Hempstead is a small community some forty miles north of Houston, Texas. In the fall of 1993, four of Hempstead’s sixteen cheerleaders turned up pregnant in the early months of the school year. All four girls were removed from the cheerleading squad. At a meeting of the cheerleaders’ parents and school officials, the mother of one of the four girls announced that her daughter had had an abortion. The student was immediately reinstated and allowed back on the sidelines for the Friday-night football games. The parents of the still-pregnant cheerleaders were outraged, and contended that the student who had the abortion should be in the stands with the pregnant cheerleaders.
The community was thrown into a feeding frenzy of press coverage and controversy. The school policy was clear about pregnancy but said nothing about students who had abortions. Like many school districts nationwide, Hempstead had not had to wrestle with questions of pregnant cheerleaders, or those who had abortions, because these students typically bowed quietly out of their high-profile positions. When the school board voted to oust the three remaining pregnant students from the cheerleading squad, the controversy became a magnet for activist groups and the national press.
Representatives of the National Organization for Women (NOW) and the ACLU became visible in public meetings. They attended a school-board meeting in October 1993 where they distributed material citing federal laws and court rulings upholding the rights of pregnant students to participate in public school extracurricular activities. Parents and school-board members, who favored the policy of dismissal from the cheerleading squad, found themselves staring down the barrel of an expensive federal lawsuit in a small community just barely meeting its education budget. Discretion became the better part of valor in the confrontation, and the school board rethought its policy. All the cheerleaders were allowed back on the squad. The school board declared publicly that it was making the decision for financial reasons and could not afford a lawsuit. Behavior once improper was now officially sanctioned, and abortion was enfranchised as a way to regain extracurricular privileges. The community lost its freedom to express and defend traditional values. The lesson, however, wasn’t lost on other school districts that later faced similar problems.
In the postmodern politics of the new millennium, the political strategy is not to file a lawsuit but to threaten to file one. Legal posturing alone is usually enough to win a point. The ACLU regional director in the cheerleader controversy confirmed the strategy: “We’ve not been contacted by any of the cheerleaders about legal action, but the matter is of great concern to our organization.” Without an invitation, and with only a legal threat, the ACLU was able to force the school board the change its policy, dictate the outcome of the controversy, and lower societal standards.
Such are the new politics of whispering in the twenty-first century version of the culture wars. The values that were instrumental in forming the American culture have been ignored, forgotten, orworseforbidden in public debate. Through court rulings, bureaucratic pronouncements, and well-intentioned but unhelpful laws, secular values have allied with government authority to dismantle the ideals of a decent nation. In the words of Robert Bork, “Large chunks of the moral life of the United States, [along with] major features of its culture have disappeared altogether, and more are in the process of extinction.”
A country once confident is its values and optimistic about its future is now pessimistic, nervous and confused. Traditional American institutions like the Boy Scouts, churches, businesses, college campuses, and public schools are routinely targeted for attack and expanding government regulation. Morally responsible Americans are forced to withdraw into the shadows of public opinion, where their freedoms of speech are reduced to whispers. The culmination of this silence portends a frightening future.
After World War II, an American journalist returned to Germany to live in a remote town in hopes of discovering why law-abiding citizens followed the leadership of Adolf Hitler. Milton Mayer interviewed ten average families, and in one of the more revealing sections of his book, They Thought They Were Free, he asked why the townspeople didn’t protest the abuses of the state. A policeman related the story of a local leader who was arrested in 1933 and “taken away” without being charged with anything. When Mayer asked why there was no outcry from citizens, the policeman told him that the people, by their silence, had given the government that right. There were “no open trials for enemies of the state,” he said. “They had forfeited their right to it.”
In a thousand cases across America, in incidents as far-ranging as Boy Scout meetings, public prayers on the Fourth of July, and the display of religious symbols on public buildings, Americans are losing the same privileges by whispering rather than giving voice to their protests.
Jim DeMint is the junior senator from South Carolina. J. David Woodard holds the Thurmond Chair in Government at Clemson University.