John Whitehead's Commentary
The War Against Religious Free Speech
There is a war raging in America, and it may be the most important war we will fight in the coming years. But it's not a war against terrorism, drugs or AIDS. It's a war against free speech, primarily religious free speech.
Let me give you some examples. The microphone was unplugged by school officials when a high school valedictorian began talking about Jesus Christ. An instrumental version of "Ave Maria" was eliminated by school officials because it might be religious. A city councilman was told that he cannot end his prayers in Jesus' name, while other council members can pray as they see fit. These are all examples of individuals who were simply expressing their First Amendment right to free speech--religious free speech. Until recent years, this was protected speech. But things seem to be going from bad to worse. A recent court decision dismissing the case of a rock band that was discriminated against because of its members' religious beliefs highlights the problem.
Officials at Rossford High School in Ohio asked Pawn, a rock group that included several students attending the school, to perform at a school-sponsored anti-drug assembly that was scheduled for December 21, 2004. Pawn performs original compositions written by its band members, all of whom are Christians. The band attempts to convey positive messages through its music about the use of drugs, alcohol and sexual promiscuity. Pawn agreed to perform at the assembly and to present messages to the students between songs. Pawn also agreed that its statements between songs would not be religious and would be limited to the "Just Say No" anti-drug, anti-alcohol message of the assembly. Attendance at the assembly was to be purely voluntary, with all students given the option of attending Pawn's performance, study hall or a movie.
Both the school and Pawn began making immediate preparations for the assembly. Pawn's performance was announced to students, and posters were printed to promote the event. However, a week prior to the assembly, school officials rescinded their invitation to Pawn because of the religious content of the group's songs.
Obviously, this is a classic case of discrimination against a group of people because of who they are and what they might say. It's what some courts have called viewpoint discrimination, and it's an important ingredient of free speech. And it's a perfect example of how far government officials are willing to go to avoid any association with religious individuals, ideas or speech. And specifically, free speech by Christians.
A lawsuit followed in which all these key First Amendment principles were argued. And just last week, Federal District Court Judge Jack Zouhary ruled that Pawn had no protected right to free speech. The court adopted a "government speech" analysis as the basis of its decision. This doctrine, which is now being used more frequently by the courts, holds that if speech occurs on government property, it is not protected by the First Amendment. As Judge Zouhary wrote in his opinion: "This is not a case about the state discriminating against speech and religion, but rather about the state having control over who speaks on its behalf."
There is a very real danger in this type of thinking. The places where people are allowed to exercise their free speech in America are gradually being eliminated. City squares are disappearing, replaced by parking lots. Corporations are buying up entire towns and turning them into private property. And the government is expanding at a rapid rate. Thus, as the government speech concept widens to encompass more and more, speech occurring on public property can and will be barred by government officials. Thus, free speech as we have known it will die away. This will impact not only free speech in schools and public buildings, but eventually expression on public sidewalks and other public places. In the end, the only place where speech will be "free" is in our homes or in our heads.
History teaches us some valuable lessons. Every society that grows more authoritarian eliminates free speech. It is free speech that tyrants fear most for there is nothing more dangerous than ideas that reach fertile minds. Moreover, it must not be forgotten that often a citizenry willingly forfeits essential rights for security. We have seen this in the U.S. in light of the post-9/11 paranoia.
But there is another way that citizens forfeit their rights: it happens when they have little to no clue about what those rights are. Recent polls and surveys indicate that average Americans have little knowledge of their rights as laid out in the United States Constitution. Thus, it is very easy for the government to ride roughshod over our basic freedoms.
Eliminating free speech and other rights is an incremental process, which begins gradually. Today the target, especially in public schools, seems to be Christians. But as Martin Niemoeller, a German pastor who saw tyranny unfolding in Nazi Germany, recognized: "First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me."
We still have time to act. And we must act because free speech is the basis of democracy. Without it, the future looks grim.
Let me give you some examples. The microphone was unplugged by school officials when a high school valedictorian began talking about Jesus Christ. An instrumental version of "Ave Maria" was eliminated by school officials because it might be religious. A city councilman was told that he cannot end his prayers in Jesus' name, while other council members can pray as they see fit. These are all examples of individuals who were simply expressing their First Amendment right to free speech--religious free speech. Until recent years, this was protected speech. But things seem to be going from bad to worse. A recent court decision dismissing the case of a rock band that was discriminated against because of its members' religious beliefs highlights the problem.
Officials at Rossford High School in Ohio asked Pawn, a rock group that included several students attending the school, to perform at a school-sponsored anti-drug assembly that was scheduled for December 21, 2004. Pawn performs original compositions written by its band members, all of whom are Christians. The band attempts to convey positive messages through its music about the use of drugs, alcohol and sexual promiscuity. Pawn agreed to perform at the assembly and to present messages to the students between songs. Pawn also agreed that its statements between songs would not be religious and would be limited to the "Just Say No" anti-drug, anti-alcohol message of the assembly. Attendance at the assembly was to be purely voluntary, with all students given the option of attending Pawn's performance, study hall or a movie.
Both the school and Pawn began making immediate preparations for the assembly. Pawn's performance was announced to students, and posters were printed to promote the event. However, a week prior to the assembly, school officials rescinded their invitation to Pawn because of the religious content of the group's songs.
Obviously, this is a classic case of discrimination against a group of people because of who they are and what they might say. It's what some courts have called viewpoint discrimination, and it's an important ingredient of free speech. And it's a perfect example of how far government officials are willing to go to avoid any association with religious individuals, ideas or speech. And specifically, free speech by Christians.
A lawsuit followed in which all these key First Amendment principles were argued. And just last week, Federal District Court Judge Jack Zouhary ruled that Pawn had no protected right to free speech. The court adopted a "government speech" analysis as the basis of its decision. This doctrine, which is now being used more frequently by the courts, holds that if speech occurs on government property, it is not protected by the First Amendment. As Judge Zouhary wrote in his opinion: "This is not a case about the state discriminating against speech and religion, but rather about the state having control over who speaks on its behalf."
There is a very real danger in this type of thinking. The places where people are allowed to exercise their free speech in America are gradually being eliminated. City squares are disappearing, replaced by parking lots. Corporations are buying up entire towns and turning them into private property. And the government is expanding at a rapid rate. Thus, as the government speech concept widens to encompass more and more, speech occurring on public property can and will be barred by government officials. Thus, free speech as we have known it will die away. This will impact not only free speech in schools and public buildings, but eventually expression on public sidewalks and other public places. In the end, the only place where speech will be "free" is in our homes or in our heads.
History teaches us some valuable lessons. Every society that grows more authoritarian eliminates free speech. It is free speech that tyrants fear most for there is nothing more dangerous than ideas that reach fertile minds. Moreover, it must not be forgotten that often a citizenry willingly forfeits essential rights for security. We have seen this in the U.S. in light of the post-9/11 paranoia.
But there is another way that citizens forfeit their rights: it happens when they have little to no clue about what those rights are. Recent polls and surveys indicate that average Americans have little knowledge of their rights as laid out in the United States Constitution. Thus, it is very easy for the government to ride roughshod over our basic freedoms.
Eliminating free speech and other rights is an incremental process, which begins gradually. Today the target, especially in public schools, seems to be Christians. But as Martin Niemoeller, a German pastor who saw tyranny unfolding in Nazi Germany, recognized: "First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me."
We still have time to act. And we must act because free speech is the basis of democracy. Without it, the future looks grim.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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