German Officer: What did you say to her? Would you kindly repeat it to me?
French Officer: What I said is none of your business.
German Officer: Then I will make it my business.
—Hans Heinrich von Twardowski as the German Officer, and Alberto Morin as the French Officer in Casablanca
I want to follow up on a post from last month with a question:
When did we get so afraid of speech?
Attorneys for the City of Houston have subpoenaed local pastors for copies of sermons touching on the topics of homosexuality, gender identity (whatever that is), or Houston Mayor Annise Parker (who, not coincidentally, is openly lesbian). At issue is a new city “anti-discrimination” ordinance aimed at a ludicrous level of politically-correct hyper-inclusiveness that, among other things, allows men to use women’s restrooms because they “feel like” women (I’ve previously dealt with the insanity of these kinds of laws here). Apparently there is a lawsuit challenging the ordinance, filed after the city refused a referendum despite a petition collecting nearly triple the number of signatures necessary to place the measure on the ballot.
It is not my task here to debate the merits of the ordinance. Nor is this about my views on gay rights, same-sex marriage, or even homosexuality in general. This is about government bullying and censorship in the name of political correctness.
In Texas we allow broad discovery in litigation, even of non-parties, but the information sought must be at least reasonably calculated to lead to the discovery of evidence that would be admissible at trial. To be admissible at trial, the evidence must have a tendency to make some fact of consequence to the determination of the matter more or less probable. The pastors under subpoena are not parties to the lawsuit; they are neither the ones pressing the legal challenge to the ordinance, nor—obviously—are they the ones responsible for drafting or passing it. It is difficult to see how anything one of them said from the pulpit makes any fact of consequence in deciding the ordinance’s validity more or less probable. Curiously, the subpoenas don’t even appear to seek—or at least are not even limited to—sermons dealing with the anti-discrimination ordinance at issue. Instead, they seek information on sermons dealing with homosexuality in general, or dealing with Mayor Parker personally. Which begs the obvious question:
Why are the sermons being subpoenaed at all?
One suspects it has everything to do with the fact that the pastors being targeted have been vocal critics of the Parker administration and the anti-discrimination ordinance, which for obvious reasons has been something of a pet agenda item for her. And that’s a serious problem.
The First Amendment reads in its entirety:
“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.”
By virtue of the Fourteenth Amendment and the incorporation doctrine, these guarantees restrict not only Congress, but also the States (and, by extension, local governments). And the idea is pretty simple, really: people in the United States should be able to practice their religion and to speak out against the government without fear of government reprisal. This concept is the very foundation of what our republic was supposed to be all about, and if you think about it, to the extent any of these pastors said anything having any bearing at all on the ordinance in question, they were engaging in First Amendment activity on multiple levels. They were in church, exercising their religion. They were before their congregations, thus (presumably) peaceably assembled. And not only were they engaging in speech, but they were engaging in speech articulating a grievance against the government. With apologies to Larry Flynt, this is the very essence of what the First Amendment was designed to protect.
Yet their reward for speaking out is to be met by a phalanx of government lawyers, and heaven knows nothing good happens once lawyers start showing up. All because those in power did not like what these people had to say.
The increasing weaponization of the mechanisms of government to intimidate opposition into silence is chilling, to say the least. In the last century, dictatorships quashed dissent through the brute force of the KGB or the Stasi. But state censorship of opposition doesn’t have to be so crude as midnight disappearances to the Gulags in order to be effective. IRS denies or delays tax-exempt status for Tea Party groups, thus denuding them of the funding necessary to get their message out effectively. Logan Clements produced a film critical of FUBARCare, and found himself immediately the subject of a tax audit. The same Department of Justice that refused to prosecute the New Black Panthers when they were caught on tape intimidating voters brought felony campaign finance charges against Dinesh D’Souza after he released an anti-Obama film heading into the 2012 election season.
What do you suppose things like this do to the willingness of ordinary citizens to raise their voices and be heard?
In 2003 then-Senator Hillary Clinton famously squealed that she was “sick and tired” of people being labeled as unpatriotic when they dared to question the Bush administration. These days, however, it’s not a question of dissenters being labeled unpatriotic, or even racist or homophobic (or maybe worst of all, “denier”). We’re way past name-calling. Now, anyone who might dare speak up has to wonder if they’re going to get a call from the IRS. Or if a process server is going to knock on the door to invite them to a government-sponsored expose of every document in their file cabinet. Or if they’re going to be arrested and threatened with five-to-ten in a federal penitentiary for jaywalking.
This is not how it’s supposed to be in this country. We’re supposed to have active engagement by ordinary citizens in the issues of the day. We’re supposed to disagree, and to be able to voice that disagreement, at times loudly. As Michael Douglas said as President Andrew Shepard in The American President,
“America is advanced citizenship. You gotta want it bad, ‘cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’”
But we seem to be losing that. Fast. Those whose hands grip the levers of power are so consumed with maintaining that grip that they now trod over the most fundamental tenets of our political society to ensure that they never even have to engage in (let alone win) the debate. It’s becoming increasingly dangerous to speak. Maybe not physically dangerous, and maybe not even dangerous in a go-to-jail sense—although one increasingly wonders—but it doesn’t have to be. Just responding to a subpoena can be financially crippling to most, and there’s no insurance to cover it. For many, the fiscal risk alone is more than they can chance. Better to keep quiet and not attract the state’s attention.
If we don’t speak out now, if we don’t take that risk, who will be there to speak when they come to muzzle the last of us?