Friday, March 4, 2011

Sarah Palin, the First Amendement, and Westboro Baptist Church

In the wake of this week's Supreme Court ruling on the protest rights of the infamous Westboro Baptist Church, Sarah Palin took to Twitter to flex her chops as a bold and unpredictable new talent in Constitutional scholarship. Just hours after the Supreme Court upheld WBC's right to protest military funerals on First Amendment grounds, Palin tweeted:
"Common sense & decency absent as wacko "church" allowed hate msgs spewed@ soldiers' funerals but we can't invoke God's name in public square"
Palin's response, widely and quite reasonably considered to be in opposition to the ruling, drew immediate condemnation in the media as an apparent call for limitations on free speech rights. In an attempt to clarify her position on the ruling, Palin later told the Daily Caller's Chris Moody:
“Obviously my comment meant that when we’re told we can’t say ‘God bless you’ in graduation speeches or pray before a local football game but these wackos can invoke God’s name in their hate speech while picketing our military funerals, it shows ridiculous inconsistency. I wasn’t calling for any limit on free speech, and it’s a shame some folks tried to twist my comment in that way. I was simply pointing out the irony of an often selective interpretation of free speech rights.”
Palin has a long and distinguished track record of completely misunderstanding the First Amendment, going back at least as far as the 2008 presidential campaign when then-candidate Palin repeatedly labeled media criticism against her an infringement on her First Amendment rights. Palin reprized this novel reading of the First Amendment last year during her controversial "don't retreat...reload" defense of radio personality Dr. Laura's racist on-air rantings. In both cases, Palin was responding to instances of media criticism of public figures, which have absolutely no relation to the sort of governmental abridgment of free speech against which the Constitution protects.

In this latest foray into constitutional law, Palin managed to wholly conflate two of the different provisions contained in the First Amendment - the Establishment Clause and the Free Speech Clause - while also mistakenly suggesting that the recent court ruling had anything to do with the Free Exercise Clause.

Let's break this down. The Westboro ruling was not, as Palin seems to suggest, a question of the free exercise of religion, despite the fact that one of the groups of litigants involved happened to be a church (although as Jon Stewart observed this week, "Westboro Baptist Church is a church no more than Church's Fried Chicken is a church"). Rather, the case offered a textbook study on the limitations of public discourse, what Salon's Justin Elliott referred to as a "classic free speech case." In her clarification remarks, Palin again misrepresents the question of free exercise as the central issue behind limitations on religious language in public school settings, which are in fact based primarily on the Establishment Clause, and not the Free Exercise Clause.

Palin's arguments rehash a classic conservative narrative that portrays religion (a term which functions as a stand-in for conservative Christianity) as somehow under siege in the United States. In reality, there are virtually no limitations on the ability of any US citizens to freely discuss religion in the public square. In fact, fostering a public discussion about the role of religion in US society is what this website is all about. But what the conservative narrative upon which Palin is piggy-backing willfully ignores is that there are Constitutional limits to the ways in which religion can be talked about, and especially the ways in how it can be actively promoted, once governmental support and services become involved. As private citizens and public figures, individuals are free to 'invoke God's name in [the] public square' to their hearts content, but government institutions - including the schools which Palin and other conservatives consider one of the primary fronts in the siege on religion - must respect the diversity of belief and non-belief that comprises an indelible part of our national character.

Whether Palin is conflating her constitutional protections through willful or genuine ignorance, her arguments demonstrate at best a disingenuous political opportunism, and at worst a seriously deficient understanding of the document which establishes our government's organizational framework. How such blatant misrepresentation of the Constitution appeals to a base which claims to hold the document in such high esteem is anyone's guess.

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