A First Amendment case that isn't a First Amendment case?

It's time, once again, to venture into the dangerous world of religious and political labels. The current news hook for this meditation is, of course, the so-called Hobby Lobby case linked to the religious-liberty implications of the Affordable Care Act. Speaking of labels: Why is this the Hobby Lobby case, in headline after headline? Why "Hobby Lobby" alone? Why isn't this, in part, the Mennonite case?

Now, I realize Hobby Lobby is a nationally known brand and that this punchy name fits better in a headline than that of Conestoga Wood, the cabinetmaking company owned by a Mennonite family in Pennsylvania that is also part of the case. Is it possible that "Mennonites fight for free exercise of religion" isn't as culture-wars friendly a story line as "giant, rich conservative evangelical company fights, etc., etc."?

Just asking.

But back to my main point. In recent years I have been asking the following question about the labels used in coverage of the rising tide of stories linked to fights about basic First Amendment rights. I recently stated the essential labeling question this way:

What should journalists call a person who waffles on free speech, waffles on freedom of association and waffles on religious liberty?

The answer: I don’t know, but the accurate term to describe this person -- in the history of American political thought -- is not not “liberal.”

The question can, of course, be turned upside down: What will mainstream journalists call a person who is a fierce defender of free speech, the freedom of association and religious liberty?

The answer, based on the news coverage I have seen in the past year or so is this: It appears that such a person is now either a “conservative” or perhaps an old-school member of the American Civil Liberties Union. As recently as the Clinton White House it was possible for "liberals" as well as "conservatives" to stand together on many, if not most, First Amendment issues -- such as support for the Religious Freedom Restoration Act. And these days?

The Los Angeles Times recently published a very interesting, and ironic, story that tried to focus on this mysterious, strangely illiberal turn in American public life. Here is the top of the report:

WASHINGTON -- For decades, liberals wielded the 1st Amendment to protect antiwar activists, civil rights protesters and government whistle-blowers.

These days, however, the Constitution's protection for free speech and religious liberty has become the weapon of choice for conservatives.

This year's Supreme Court term features an unusual array of potentially powerful 1st Amendment claims, all of them coming from groups on the right. And in nearly every case, liberal groups -- often in alliance with the Obama administration -- are taking the opposing side, supporting state and federal laws that have come under attack for infringing upon the rights of conservatives.

Then there is this interesting observation near the top of the story:

Conservatives and libertarians say the role reversal at the high court reflects a larger shift in political alliances and attitudes toward government.

"The progressive mind-set sees government as a force for good," said Ilya Shapiro, a lawyer for the libertarian Cato Institute. So, increasingly, "the energy behind those who are battling with the government" comes from libertarians and conservatives.

"This is a real trend over several years," said Washington attorney Michael Carvin, a staunch conservative who led the constitutional challenge to the Affordable Care Act. "The liberals are in favor of an expansive federal government, and the conservatives are making the arguments for individual autonomy on speech and religion."

Of course, when liberals were defending the First Amendment rights of controversial liberals (or Nazis marching through Jewish suburbs, for that matter) their actions were called "liberal" and pro-First Amendment.

Now, with legal case after legal case pitting the First Amendment rights of traditional religious believers against those who are seeking government endorsement of various doctrines emerging from the Sexual Revolution, the use of pro-First Amendment language is being called "conservative" or even -- think War on Women images -- oppressive.

Thus, the Los Angeles Times notes:

Leading liberal advocates say conservatives, including some on the court, are using the 1st Amendment to pursue ideological goals.

"This is more about conservative ideology than about speech," said Erwin Chemerinsky, dean of the UC Irvine School of Law. "This is an ideologically conservative court that is pro-business and hostile to unions."

So while defense of the First Amendment used to be at the heart of American liberalism, journalists are now switching the labels around and saying that this "conservative court" (on social issues?) is being perversely wooed by "conservatives" (Mennonites? The Little Sisters of the Poor?) cynically using First Amendment arguments.

At some point, these labels simply become incoherent and journalists should minimize their use or strive, strive, strive to explain the actual beliefs of the people involved.

Note, for example, the top of this Baltimore Sun report on the activities of protesters outside the U.S. Supreme Court during the arguments in the Hobby Lobby/Mennonite case. While I could have dissected any number of other mainstream media reports, let's walk through this one:

A springtime snowfall dampening their signs, if not their spirits, several hundred activists divided into opposing groups Tuesday on the plaza in front of the Supreme Court to make their own opening arguments over the Affordable Care Act.

The point of contention: the law's requirement that privately owned businesses provide employees with health insurance that covers contraception.

OK, if the argument was about contraception -- alone -- there would not be as many Protestants involved in the battle.

The use of narrow contraception-only language this early in the story prevents readers from knowing the facts being debated in the case. The debates over morning-after pills, sterilizations, etc., really need to be mentioned early.

When these wrinkles in the dispute are mentioned, the story quickly establishes that the Sun embraces -- totally -- the White House point of view.

While the mandate addresses only birth control, anti-abortion groups said they opposed it because they say some contraceptives, such as the morning-after pill, are abortifacients.

The bottom line: The White House states facts, while religious conservatives state beliefs. But isn't this court case about the free exercise of religious beliefs?

The story then offers -- bravo -- some quotes from people on both sides on the issue of religious freedom. However, the content of one of the quotes almost certainly needed some clarification.

... The Rev. Harry Knox, president and CEO of the Religious Coalition for Reproductive Choice, defined that freedom in a different way.

"Religious liberty is not about bosses being able to impose their religious beliefs on all of their employees," the Silver Spring man said. "It's about their employees being able to practice their own religious liberty in the privacy of their own homes."

Wait a minute: Isn't the debate over who funds the various forms of contraception, not whether citizens can be prevented from practicing "their own religious liberty in the privacy of their own homes"? The Knox quote is valid as a statement of his views, of course. The problem is that the actual facts of the debate are not quickly clarified in the story.

Now here come the key labels, the ones that continue to intrigue me:

Hobby Lobby, a nationwide chain of craft stores founded and owned by a conservative Christian family, has sued the government over the requirement.

OK, the owners are "conservative Christians." Check.

But, again, are the Hobby Lobby people the only folks who are suing the government over this? Can that crowd truly be defined with that one simple label? There's more.

The count granted the sides 90 minutes for their arguments, 30 more than usual. The liberal-leaning justices and government lawyers said that allowing Hobby Lobby to skirt the mandate could lead others to demand a range of similar exemptions. Conservative justices said a ruling could be limited to only certain kinds of businesses.

OK, so "liberals" are now the people in favor of narrow applications of the First Amendment, while "conservatives" appear -- in this case -- to those be in favor a broader, but still limited, application of religious-liberty language.

So what's the point of all of this? I think the key is that journalists are actually defining these labels in ways that are linked to cultural disputes about sexual issues. The labels make no sense at all in terms of decades of debates about free speech, freedom of association and the free exercise of religion. Liberals have, as a rule, fiercely defended broad, liberal applications of the the First Amendment, while illiberal people have not.

But that can't be the case right now, can it? Because in these cases -- almost all linked to religious beliefs -- First Amendment liberalism would aid the causes of people who are the political, cultural and theological foes of modern, uh, "liberals" and, thus, many elite leaders in the press.

In the long run, many voices on the modern cultural left have insisted that these First Amendment cases are not really First Amendment cases.

Hear me: Journalists must accurately cover that point of view, without letting it frame, dominate and define these debates. But that is only half of the debate. But there are other experts who disagree, including old liberals from the Clinton-era First Amendment coalitions. Their voices must be heard as well, even if their views -- in these cases -- end up favoring the rights of people who are striving, in daily life, to follow centuries of religious doctrine.

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