Tuesday, September 30, 2008

Freedom of Speech, Freedom of Religious Experssion, Lawsuits

This forum deals with the religion clauses of the First Amendment. But the First Amendment also deals with free speech:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now we hear that in the current election Sen. Obama has "truth squads" deployed in various states. They are mostly lawyers ready to file suit against stations running (McCain/Palin) ads they feel are incorrect. Now, as one of our local radio commentators has said (he is a lawyer), "You can sue anyone for anything. It doesn't mean you will win, but you can file a suit. You can sue a ham sandwich if you want to." Stations or other media outlets may not have large legal budgets. If a group with deep pocket$ sues these outlets, they may choose to take down the ads instead of going to court over it.

So it is probably legal to bring suit over any ad you don't like. The station may just drop it. But that is not the way the legal system was originally meant to work.

The same tactic applies in many of the religious expression incidents I mention on other posts. A group like the ACLU may write a letter to a school system threatening a long and costly court battle. Few systems can afford that, so they usually buckle to the demand, whether they think it is right or not. Or sometimes such a group has sent out "bulk" messages to schools, for example, informing them that certain activities (such as school Christmas programs) may violate the First Amendment and bring a suit down on the school. The school then reacts to make sure they are not doing anything that this group will sue over. Neither example means that the threat of a suit brought about the correct action.

The odd thing about this is that these groups who will sue a school (or threaten to) also claim to be protecting the "little guy." They say it is not fair for a majority of the school body to "inflict" their religious celebration on even a single student who feels differently. They don't like a "might makes right" approach in that case, but when they win their way by simply threatening lawsuits, they have just won with their might, no matter what is right.

Several of our Founders warned about the judicial branch of government taking on too much power. The various cases that have been decided by courts (wrongly, in my opinion) against free expression set the foundation for the effective use of the threat of lawsuit.

The threat-of-lawsuit tactic is similar to the stated goal (according to many Presidents) of having a very strong military so you won't need to use it. As long as activist groups have a large bank account with which to file lawsuits, they can apply that principle to their benefit. They win most of their "cases" without ever going to court.


CrypticLife said...

It's a valid concern, of course, but cuts in both ways and runs through the legal system (far beyond just church-state issues).

It cuts the other way because without groups like the ACLU, schools would indeed ignore complaints by unfunded complainants.

Also, there are still a number of school districts that contest the claims rather than give in, so the ACLU isn't always winning through financial power. There are groups such as the Alliance Defense fund to defend such actions as well.

History Matters said...


Well stated. I THINK proportions are on the side of my statement, but that would be mighty tough to prove!

Thanks as always for your comments.