Cultic Studies Journal, 1987, Volume 4, Number 1, pages 18-20
A Comment on Fay Stender's "Some Rigors of Our Times"
George B. Driesen, Esq.
Fay Stender was a remarkable woman. She would have earned that epitaph if all one could say of her was that she devoted her considerable professional energies and talents to defending those whom most 'right-thinking' people condemned. In these days, when even young law students seem almost totally committed to personal aggrandizement, her life seems all the more inspiring. She was a committed, zealous advocate not only of First Amendment rights, but also of First Amendment values, what she called the 'cultural tradition surrounding' free speech and the free exercise of religion. To be that committed, while at the same time retaining the capacity for doubt that her last essay demonstrates, is a remarkable achievement.
Stender’s essay makes plain that her concerns about the effects of certain kinds of pornography, Nazi demonstrations, and cults, stem from the same commitments that made her life so admirable: her implacable opposition to violence and oppression. It would be presumptuous for one who has not made a similar life commitment to respond to Ms. Stender's comments about the proper role of the American Civil Liberties Union. But it is appropriate, I think, to applaud her awareness that legal rules, however important and salutary, may not always afford the best guidance in deciding how a society ought to respond to new phenomena, and to regret that her life was cut short before she had an opportunity to think and write more about the issues she has raised.
Stender may have overstated when she wrote that First Amendment values are ". . . the cornerstone of everything we feel is most valuable about our way of life.' Those values, and the law that upholds them, are essentially procedural. They set limits on how we will conduct the war of values so as to preclude violence and oppression. They are not the be-all and end-all of intellectual discourse, let alone of life itself. We have other, equally important commitments: to excellence, to fairness, to kindness, and to intellectual and personal probity, to cite just a few. Furthermore, we recognize - to a degree that even the Framers may not have understood, that speech can be and is used manipulatively to undermine not just today's faiths, but the very self-realization of the individual which Stender, for one, deemed to be the central value around which society is organized. Indeed, we know that the First Amendment itself can only operate in a society whose citizens' basic needs are satisfied enough so that the scramble for existence leaves time for reflection and room for error, a society that is sufficiently free from terror, governmental and private, so that men and women can, as a practical matter, devote themselves, as Stender did, to defending people and ideas that are anathema to those in power. To create and preserve that kind of society requires more than an adherence to First Amendment values: it requires vigorous opposition to those who have other agendas.
It is here that Stender's essay falls down, although one cannot doubt that with a little more time she would have refined her thinking. For Stender's profession as a lawyer led her to see the problem as definitional: is the Unification Church a religion? Is violence-depicting pornography “speech”? Of course, the answer to both questions is “yes.” But, pace the First Amendment, there are evil religions. We must never forget that the worshippers of Moloch sacrificed their children to appease their god, and that some religions teach that death in mortal combat with unbelievers is the highest achievement of the believer. There are also evil ideas. Witness Mein Kampf. The First Amendment teaches that society may not harness the force of government, with its monopoly of force, to suppress the propagation of any religion or set of ideas. But those who love freedom must do everything in their power to convince our fellow citizens to oppose such religions and such ideas in every conceivable forum, except the courts. And it is not because we value freedom less that we should argue against Mein Kampf becoming a mandatory element of an elementary or high school education, but because we value freedom more. The ideas we teach our young people, given the short time they have for learning, should be those that have molded and supported the society we want them to live in, not those that would undermine it. And the religions that we allow to flourish without social and intellectual opprobrium should be those that are compatible with our highest ideals, not those that foment violence, hatred, and oppression. This is not to say that hateful ideas must be excised from our libraries or hidden from those who want to probe, or that hateful religions should be suppressed. It is to say that we must stand family for what we believe, and that we believe in more than procedural rules.
This brings me full circle back to Stender's concern with the ACLU's position. Believing, as I do, that one must distinguish between legal and cultural rules, I see the ACLU as the guardian of a set of legal, not cultural principles. Its special task has been to make sure that the force of government is not used to tip the sr-ales in the battle for men's and women's minds. How the ACLU's limited resources should be used to achieve that objective, it seems to me, is largely an internal matter, although we outsiders certainly have a responsibility to bring facts to the Union's attention that might bear on the question. But neither the people who discharge the heavy responsibility that the ACLU has shouldered over the decades, nor we who are occasionally drawn into its inner struggles, should forget that life is greater than law, and that what will do in the courtroom will not necessarily serve in print on the screen, or in the public square. Nor should we forget that the problem of formulating the rules of war is vastly different from the problem of deciding who should be fought and how the struggle should be conducted within the ambit of those rules. Fay Stender devoted, and in the end, gave her life to both objectives. We are fortunate that she left a set of questions so important for us to ponder.
George B. Driesen, an attorney from Washington, D.C., is a Member of the Editorial Board of the Cultic Studies Journal.
Peter N. Georgiades, Esq.
By design, no rule of law in our system has any application without reference to a specific set of facts. Hence, one cannot correctly apply the legal rules of the First Amendment without a careful examination of the particular facts of each case in which the ACLU is called upon to take a position. Had Ms. Stender stopped at reminding her colleagues within the ACLU of this axiom, I would add my hearty endorsement and have nothing to say beyond that. However, Ms. Stender seems to go further. She implies that if the factual investigation reveals that a particular exercise of speech or a particular religious practice is leading to a result she disapproves of, then the ACLU should not extend itself to protect that exercise. In this she is clearly wrong.
Our common law system proceeds by creating rules to apply in particular fact situations. When a previously unknown set of circumstances presents itself to a court the court renders a decision based upon that particular set of facts. That decision then stands as a substantive rule of law: under these facts the result must be “x.” When identical circumstances later present themselves, the previously established rule (the "legal precedent”) governs the result. The facts, are the same, so the result must then be “x.” Of course, in reality it is rare that identical fact situations will recur. Similar fact situations may present themselves, but due to some material difference in the particular circumstances, the ends of justice, peace, and good order are better served by some result other than "x.” A new substantive rule of law is then created which says when the facts are just as these am the result is “y.” In this way our law can be stable, yet flexible. By looking at the rule previously applied to our present fact situation, we can be secure in predicting what the result will be. Yet, when some facts or circumstances pertaining to our present situation are different in some material way, the court has the flexibility to apply a different rule where a different rule would be just. No rule, however, can be applied in the abstract.
Any competent judge or lawyer knows that many fact situations look to be the same on the surface, but turn out to be fundamentally different upon close examination. It is simply lazy, sloppy lawyering to apply the same rule to different fact situations without a thorough examination of the facts and careful consideration as to whether the particular facts at hand warrant application of the particular rule in question. This is as true for the rules established by the First Amendment as for any others. Unfortunately there has been too much lazy, sloppy legal analysis by various ACLU affiliates in connection with cult-related matters. Even worse, there appears to have been some intentional distortion of First Amendment principles by some individuals within the ACLU. They have been willing to accept money to abandon their roles as advocates for the First Amendment and exploit their present or former positions with the ACLU in the service of a private client or constituent
The remedy is to exhort ACLU members and affiliates to look at each case closely and on its particular facts. For example, the First Amendment does not protect practices carried out pursuant to religious beliefs which are not sincerely held; hence, an inquiry into the sincerity of the professed beliefs must precede any determination whether rights under the Exercise Clause are being violated. Nor does the First Amendment sanction the commission of felonies, even if carried out pursuant to sincerely held religious beliefs; hence, there must be an inquiry as to whether the conduct sought to be restrained constitutes the commission of a felony. We in the ACLU must always avoid the temptation to simply presume that every restriction on cult activity is an impermissible restriction on speech or religion.
There are a number of hopeful signs. Ms. Stender's Northern California ACLU affiliate recently opposed a bill in California which would exempt “churches” from the imposition of punitive damage awards in civil suits. They did so on grounds that such a law would violate the principle of separation of church and state. The Oregon affiliate of the ACLU has also responded to litigation over the legality of the incorporation of Rajneeshpuram in Oregon by adopting and publishing a "Policy on Incorporation of Cities by Religiously-Based Communities" which recognizes the need to examine the facts of each particular case. The Oregon ACLU policy states:
A community of adherents of a single religion should be permitted to incorporate a city on the same terms as other communities. No community, no matter what the religious beliefs of the inhabitants, has the right to delegate governmental power to a religious entity. And all cities have an obligation under the First Amendment and the Oregon Constitution, to be scrupulously neutral in matters of religion, to avoid any establishment of religion, and to protect the individual religious freedom of their inhabitants.
A city may become so entangled in religion that its very existence as an entity exercising governmental powers violates the religion clauses of the First Amendment and the Oregon Constitution. It is a question of fact whether that has occurred in any given case. (Emphasis added.) Relevant factors in determining whether that has occurred include the following: the purpose of the city's incorporation; the structure of authority and decision-making within city government; control over residency in the city; and actual actions taken by the city. Ownership of real property may be a relevant factor, but by itself is not determinative, since the actions of the city as a governmental body are (or can and should be) independent of property ownership. In each case, the ultimate question is whether the city is structured as and functions as a democratic institution independent of religious authority, or whether it is in fact an organizational manifestation of a religion.
I am left with the impression that the Jonestown massacre helped shock Ms. Stender out of an ideological rut, reminding her that case-by-case factual analysis is indispensable. To the extent she is calling back to her stm-entrenched colleagues to carefully examine the facts with respect to Nazis, pornography, or cults, she gives wise counsel. What is troubling about her paper is an apparent confusion of thought, wherein “examination of the facts” becomes equated with judgment of the effectiveness or desirability of the effects of the speech of unpopular or crack-brained groups.
For example, Ms. Stender states, "it is the duty of the ACLU to make some investigations as to the actual resultant effects in the attitudes of populace exposed to Nazi activities [by which she is referring to marches, display of symbols, amplified hate messages, and other acts of speech].” (P. 10.) Why? If the “investigation” demonstrates that the Nazis' speech has “resultant effects” which cause the general populace to believe that Jews are bad and should die horrible deaths, then what? The necessary implication is that if the Nazis' speech is effective -- that is, people are listening and believing -- then the ACLU should not act to protect that speech. The reason she gives for abandoning efforts to protect speech is that these “evil" people (the Nazis, Moon and Jim Jones are cited as examples) are using speech in the abstract to move others to “do something else.” (P. 14.) The “something else” is to take action consistent with the ideas expressed in the speech. In this she is simply wrong.
What good is any speech unless it persuades others to act? To give people the right to speak so long as there is no chance that they win convince anyone is a common practice among dictators and tyrants the world over. There is “free speech" until people start listening; then a “state of siege” is declared, martial law is imposed, and the constitution is suspended. That kind of “freedom" is the same kind of freedom they have in the cults - illusory.
Ms. Stender's analysis fails because she got careless. She is, by her own admission, reacting 'intuitively." (P. 2.) She is concerned over what she sees as a "breakdown' in 'taste" as a result of free speech. (P. 14.) Any sane person would have to be intuitively repulsed by the activities of Nazis, Moon, Jim Jones, and their ilk; and he would be troubled by the thought that he or she is directly or indirectly promoting those activities by protecting the right of all of us to speak freely. But neither Ms. Stender not any of us can allow our 'intuition" or sense of taste to substitute for hard, factual analysis and the application of fixed rules of law to particular fact situations.
Ms. Stender fears that the speech activity which the ACLU protects leads to something “more than, other than speech,” and that in defending the speech of Nazis or pornographers or cults one defends “something hideous.” (P. 7.) No. Neither the hideous ideas expressed nor the hideous acts which sometimes follow the speech are defended; it is only the right to speak which is defended. What is being defended is the right of you and me to speak out to attack and condemn and defeat the hideous ideas and the hideous people who promote them. It is ironic that in this regard Ms. Stender stands nearer to the cults than I am sure she would have liked.
It is the cult which cannot tolerate, and therefore punishes, speech which is dissonant. The law provides ample protection from the evils Ms. Stender fears. The trick is to look closely enough to distinguish truthful speech from fraud, religious faith from pretext and protected speech from illegal action.
Peter N. Georgiades, Esq., an attorney from Pittsburgh, is Chairman of the Subcommittee on Cult-related Litigation of the American Bar Association's Committee on Personal Rights.