Sunday, March 24, 2013

The media's Troubled Relationship with the Facts: Kentucky media taking the low road in religious freedom debate

For the most part, members of the press corp in this state are honest, decent, well-intentioned people. They work hard, follow the law, and don't kick their dog. Most of their work displays these same standards. In general, they try to be accurate and truthful in their reporting.

But when it comes to issues that might have anything to do with gay rights, there are a few who simply abandon all journalistic integrity. They transform themselves from professional reporters into journalistic hacks. Their ideology seizes control of the part of their brains which houses the faint memory of the journalistic code of ethics they learned in school and just starts deleting things.

Things like basic honesty.

Not only that, but the standards they apply in every other part of their work are sacrificed to their liberal politics. The gods of Tolerance and Diversity are jealous gods, and they brook no interference from the things like truth and accuracy.

In the debate over HB 279, the Religious Freedom Act, certain sectors of the media just simply had a professional meltdown. They mis-portrayed the bill—which was vetoed by the Governor and is now in the hands of the State House—lied about its ramifications, and basically just punted on their journalistic responsibilities—all because the ACLU and a loose axis of gay rights groups basically just made stuff up.

I expect those groups to distort the truth. They do it all the time. For them, it seems a daily ritual. But those in the journalistic profession are supposed to be better than that.

When it came to that the issue actually was, some journalists just parroted the Fairness Alliance's press releases: "The bill," said Philip Bailey of WFPL, UofL's public radio affiliate, "would have allowed Kentuckians to ignore laws or regulations that violated their faith."

Huh? This is the claim of the ACLU and the Fairness Alliance. But a responsible journalist doesn't just take the talking points of one side and simply repeat them: He attributes the position to one side and then goes and gets the opinion of the other side. And in neither case does he simply state the claim of one side as the whole truth.

To be fair to Bailey, he did begin calling me and including my quotations later in the game. And he apparently was not getting my press releases, so he at least has some excuse for framing the issue they way he did.

But then we have Joe Gerth, a reporter with the LouisvilleCourier-Journal, whose editorial in today's CJ could be considered a paradigm case of inaccuracy and mis-portrayal. Because Joe is writing an editorial and not a news story, he obviously has more leeway in expressing his opinion. But that doesn't get him off on the issue of accuracy.

Now Joe's a good guy, which makes his article that much more disappointing.

Joe too simply suspends his basic journalistic standards and accepts the claims of one side (the side he clearly sympathizes with). Here's Joe, doing is best imitation of a Fairness Alliance press release:
See, the bill allows folks to ignore laws that run counter to their deeply held religious beliefs.
Oh, C'mon. It does no such thing. Either Joe knows this, in which case he's knowingly stating a falsehood, or he doesn't know it, in which case he doesn't need to be writing an editorial on the issue for the state's largest newspaper.

HB 279 simply re-installs the standard of "strict scrutiny" in religious freedom cases that prevailed universally in this country from 1938 to 1990, and which applied at both the federal and state level once again after the Religious Freedom Restoration Act (RFRA) in 1993. In 1997 the court, defending the Smith decision of 1990, struck RFRA down as it applies to the states, but left it intact at the federal level, where it still applies today. This standard applied de facto in Kentucky until October 25 of last year, when the Kentucky Supreme Court announced that the lower stand was henceforth in place in state cases.

If Joe really believes this preposterous statement, then he should give some evidence for its truth.

He could start by explaining how a standard that involves the government having to have a compelling interest in infringing on the right of religious exercise and requiring the government to use the least restrictive means to further the purpose of the law (which is what it would have to do under strict scrutiny) would result in the universal right of people with "deeply held religious beliefs" to ignore the law.

He could also cite cases when strict scrutiny was in force—which is most of the time in most states over the last 75 years—people were able to do this. Where are they?

After Joe claims that a person could be a "pot-smoking, snake-handling, polygamist" and be free to be so if HB 279 is passed, he says:
And, under Kentucky law, snake handling, pot smoking and multiple wife marrying are illegal.
I know what you’re saying. 
You’re saying, “Joe, there is no religion out there that believes in pot-smoking, snake-handling and polygamy.”
No, that's not what I'm saying Joe. I'm saying that the assumption you're making in order to make this statement is completely false. It doesn't follow legally from what the law says and you have no evidence for it.


I'm saying that the statement you make from which everything else in your article follows—that people can simply ignore laws that don't coincide with their deeply held religious beliefs under the strict scrutiny standard—is an ignorant statement.

It's beneath the dignity of a journalist to make it. Period. You shouldn't make it any more, and you should issue a correction for having made it the first time.

For one thing, what Joe apparently doesn't know (should we start making a list?) is that laws against snake handling were upheld in Lawson v. Commonwealth, a 1942 ruling of the Kentucky Supreme Court, a ruling which states, among other things that:
... the constitutional guarantee of religious freedom does not permit the practice of religious rites dangerous or detrimental to the lives, safety or health of the participants or to the public.
Nothing in HB 279 changes this.

And polygamy? Has Joe noticed that polygamy laws have never been overturned under the very strict scrutiny standard he thinks is going to bring about some legal Armageddon?

Among other things Joe clearly hasn't read is Gingrich, Yoder, and Zook v. the Commonwealth, the case last year that lowered the standard of scrutiny in religious freedom cases in Kentucky from "strict scrutiny" to "rational basis." Among the many other things the justices said, here is one of the more important ones:
As both our state and federal law have long held, then, government can act to restrict the free exercise of religion when that exercise is detrimental to the common good. But given the certain terms of the Kentucky and federal constitutions regarding interference with religious practice, there must be a burden the government meets before it can do so. Whether the governmental regulation is subject to a heightened level of review or whether it must merely meet a rational governmental purpose is determined by the action the government takes, why it is taking it, and how much the act restricts religious practice. [emphasis added]
In other words, whether the standard is rational basis (as it is now, since last October 25) or the strict scrutiny standard (as HB 279 would have it and as it was before last October 25), government can still restrict the free exercise of religion. The only difference is the standard the government must meet. And as the strict scrutiny standard has been applied by courts, the differences are not all that great.

Which is why the opponents of HB 279 have a hard time finding any cases exemplifying the parade of horrors they claim will ensue if HB 279 is passed—and why it is simply ludicrous to say that "the bill allows folks to ignore laws that run counter to their deeply held religious beliefs."

Joe's article shows no evidence he is even familiar with the concepts of rational basis or strict scrutiny, compelling interest or least restrictive means. No need to complicate things with the facts.

If you want to see a responsible handling of the issue, you ought to go to Peter Smith's article in the same newspaper just the day before. Peter has actually, oh I don't know, taken reality into account. And he didn't just blindly accept the claims of the ACLU and the Fairness Alliance.

Imagine that.

UPDATE: Phil Bailey has told me that he did not get the expression I attributed to him above from the ACLU or the Fairness Alliance, but that it was based on communications he received from a supporter of HB 279. After going back to check the link, I also noticed (although Phil didn't mention it) that the story I linked to was not apparently written by Phil, but by Joseph Lord. 

1 comment:

Lee said...

If you want to know where all this is heading...

Based on this report:

A professor at Florida Atlantic University, who happens to be a local big-shot in the Democratic Party, teaching a course on "Intercultural Communication," as a class "exercise", instructs students to write "Jesus" on a piece of paper and then stomp on it.

One student, a Mormon, refuses to do so and tells the professor that this exercise is "offensive."

FAU suspended the student from that class.

It hits the local news. Time to backpedal. FAU apologized and said they would no longer tell students to perform that exercise.

But then they brought the student up on academic charges.

Pause now while I savor the hypocrisy.