A pair of recent studies debunk some of right-wing media's favorite rationales for legal "reforms" that make it more difficult for consumers to sue corporate wrongdoers.
Right-wing media have consistently railed against class action lawsuits, despite the fact that such suits make it easier for consumers to group low-value claims together that attorneys might otherwise not take. The Wall Street Journal in particular has been critical of class actions, calling them "frivolous," too expensive, and only beneficial to the plaintiffs' lawyers. In one editorial after the Supreme Court upheld the decades-long use of class actions for investors in securities, the Journal attacked the decision as "a champagne day for trial lawyers ... as the Justices voted to maintain the status quo." In another, the editorial board claimed that class action lawsuits that were filed to help workers recover back wages for the time they spent waiting in security check lines "would benefit lawyers far more than workers," ignoring the potential wage theft at issue.
But two new studies undercut some of the main premises behind the Journal's anti-lawsuit crusade. According to a recent report from the Center for Justice & Democracy, "class actions have not only helped victims of corporate law-breaking, but have also resulted in injunctive relief that protects us all from a wide array of corporate wrongdoing, from employment and civil rights violations to price-fixing and consumer fraud to automotive defects to health care abuses." From servicemember financial abuse to systematic sex discrimination at the country's largest employers, the report analyzed hundreds of class action lawsuits and settlements and found that nearly all of them provided meaningful relief to the plaintiffs who had been injured or defrauded. CJ&D note that "without the class action tool, corporations and businesses can ignore the law far more easily and operate with impunity."
Moreover, the conservative idea that class action lawsuits result in higher costs in the industry with the challenged practices is also suspect -- at least in the context of healthcare. A new study from the Rand Corporation suggests that even though "many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending," states that have enacted such reforms have not seen a corresponding reduction in healthcare costs.
For example, as The American Prospect's Paul Waldman explained, healthcare costs have actually gone up in Texas since the state passed a constitutional amendment that severely limited money damages that could be recovered in medical malpractice suits:
[I]n Texas, they passed a constitutional amendment in 2003 that made it almost impossible to recover meaningful damages from medical malpractice. That was good for doctors -- the number of malpractice claims plummeted, and malpractice premiums went down -- but instead of falling, health care costs in the state actually rose faster than in the rest of the country.
When you ask Republicans what they'd like to do to reform American health care, the first thing out of their mouths is usually "tort reform." But the fact that all the evidence suggests it would do nothing to cut costs is probably not going to dent their commitment to laws limiting people's ability to sue for malpractice. That's because the truth is that conservatives see this as a moral question as much as a fiscal one. "Frivolous lawsuits" make them livid, and as far as they're concerned a frivolous lawsuit getting filed (even if it never goes anywhere) is a greater outrage than someone who was victimized not being able to get compensation.
Class action lawsuits provide a valuable legal remedy for consumers who have been defrauded or injured by large corporations, but right-wing media have often discounted their value and hyped their supposed societal costs. Yet as these recent studies once again demonstrate, conservative justifications behind tort "reform" seem to be based less on sound policy and more on antipathy to a court system that encourages corporate accountability.
Right-wing media outlets have turned to serial misinformer Betsy McCaughey as their go-to expert on the Ebola outbreak. But McCaughey has a history of hyping false health care myths and was the chief architect behind the myth that the Affordable Care Act (ACA) included so-called "death panels," a discredited claim that McCaughey pushed even after being dubbed PolitiFact's Lie of the Year in 2009.
The Wall Street Journal is dismissing efforts to convince corporations to be more transparent about their political contributions as "partisan agitprop," despite the fact that the conservative justices of the Supreme Court reaffirmed the need for such transparency in 2010's Citizens United decision.
Although a majority of Americans from across the political spectrum disagree with the court's decision in Citizens United and support a bipartisan effort to reduce the unprecedented influx of campaign spending and "dark money" in politics, the Journal isn't convinced that transparency and disclosure for corporations playing politics is worthwhile. In an October 14 editorial, the Journal complained that groups like the Center for Political Accountability targeted corporations in an attempt to "discourage businesses from participating in politics" by publishing an index that ranks companies based on how transparent they are about their political expenditures. The goal of the index is to encourage corporations to disclose their campaign contributions to their shareholders, since it is the shareholders' money that is financing the political spending in the first place.
But the editorial was unsupportive of the group's activities, despite the fact that the conservatives on the Supreme Court upheld campaign finance disclosures in their majority opinion in Citizens United as indispensable to their decision that corporations can influence elections as freely as actual voters:
Hey shareholders, want some stock tips from a nonprofit outfit that wants to discourage businesses from participating in politics? That's the dubious message from a new index designed to block the political speech of corporations while leaving unions free to donate as they please.
Every year, the George Soros-funded Center for Political Accountability publishes the Wharton-Zicklin index, which ranks companies based on their political disclosure. When the group isn't publishing the index, it spends its time pushing for shareholder proxy proposals that would force companies to disclose their political activity.
The activist group's tactics have also included pressuring companies to cave pre-emptively and disclose political activity for fear of becoming targets. The index ranks companies according to their political transparency and disclosure profile. The Center for Political Accountability then uses those rankings as a truncheon to lobby CEOs to advertise how and how much they spend on campaigns and lobbying.
Most shareholders aren't buying it, but the disclosure gambit deserves to be exposed as the partisan agitprop it is.
The Wall Street Journal editorial board is criticizing a new Supreme Court case by downplaying serious allegations in the case that Amazon.com engaged in illegal employment activities and complaining about class action lawsuits.
On October 8, the Supreme Court heard oral arguments in Integrity Staffing Solutions v. Busk, a case involving a class action lawsuit in which temporary contractors who worked in Amazon warehouses are accusing the retailer of wage theft. The lead plaintiff in the case, Jesse Busk, represents warehouse staffers who argue that they are owed back pay for the time they spent in lines for security checks after they had clocked out. Busk says he often waited upward of 25 minutes at the end of his shift to go through security, where guards checked each employee for stolen merchandise. Because the security screenings are mandated by company policy, Busk and the rest of the class argue they should be compensated for the time they spent waiting to be screened.
Although the court recently held that the time employees spend putting on and taking off protective gear is not compensable, the Busk case is far from a slam-dunk. But as far as the Journal editorial board is concerned, "this should be an easy call for the Justices." In an October 7 editorial, the Journal minimized how much time workers were required to wait in security lines, complained that suits to recover back wages for this unpaid time "benefit lawyers far more than workers," and misrepresented the holding in other wage theft cases to conclude that "[t]ime in security lines doesn't qualify" for compensation:
Standing in line might feel like work, but it isn't. Under the 1947 Portal to Portal Act, Congress specifically wrote rules to prevent employees from abusing an amorphous definition of work in the Fair Labor Standards Act (FLSA) to claim they were entitled to be paid for a wide range of activities on work premises. Congress said employers weren't expected to pay employees for "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform."
That understanding has been upheld by both the Second and Eleventh Circuit Courts of Appeal. Workers must be paid only for activities that are "integral and indispensable" to their core job responsibilities. Time in security lines doesn't qualify.
This kind of FLSA litigation has been booming, especially as securities class-actions have become harder for the trial bar to win. From March 2011 to March 2012, 7,064 FLSA actions were filed in federal court, up from 2,035 a decade earlier.
If the Ninth Circuit's reasoning is upheld, it would encourage a wave of copycat suits and mean countless paydays for the trial bar. A similar lawsuit is pending against Apple, which checks employee bags for wayward iPhones. While the security delays are only minutes, a class-action suit would cost millions in settlements that would benefit lawyers far more than workers.
The 9th Circuit applied a two-part test in in its opinion to determine whether an on-the-job activity is "integral and indispensable" -- it must be both "necessary to the principal work performed" and "done for the benefit of the employer." In Amazon's case, the employees are arguing that the security checks meet this test, because the checks arise from their work in the warehouse, and uncovering theft is solely for the company's benefit.
Following Eric Holder's announcement that he was resigning, The Wall Street Journal attacked the legacy of the nation's first black attorney general by repeating debunked descriptions of his civil rights work and accusing him of turning the Department of Justice "into a routine instrument of social and racial policy."
On September 25, Holder announced that he will step down as soon as his replacement is confirmed. Right-wing media were quick to celebrate, with Fox News host Andrea Tantaros calling him one of the "most dangerous men in America" because "he ran the DOJ much like the Black Panthers would" and Fox and ABC News contributor Laura Ingraham asking, "What are the race-baiters going to do now?"
The Journal joined the opportunity to bash Holder's civil rights legacy as attorney general, claiming in an editorial that he "explicitly turned the Justice Department into a political weapon." The editorial specifically attacked Holder's efforts to curb racial discrimination in hiring, to promote desegregation in Louisiana schools, and to fight election restrictions that violate the Voting Rights Act:
Mr. Holder also turned Justice into a routine instrument of social and racial policy. Under the former head of the Civil Rights Division, Thomas Perez (now Secretary of Labor), Justice used "disparate impact" analysis to force racial adjustments on cities, police and fire departments and banks. The settlements were not based on proven racial discrimination, as traditionally required, but on arcane statistical analyses.
Among Mr. Holder's worst overreaches was filing suit last year to block Louisiana's private-school voucher program. That program overwhelmingly helps the state's poorest minority families escape bad schools. No matter, Justice's statistical cops said the program was unbalancing the "racial identity" of public schools by admitting too many black children into better schools.
In July 2012 the Attorney General invoked the specter of Jim Crow amid a presidential campaign. In a speech to the NAACP, he likened voter ID laws to "poll taxes," an argument rejected by the Supreme Court in 2009.
These three specific complaints have been among right-wing media's favorite myths about Holder and his successful civil rights track record at the DOJ.
The Wall Street Journal editorial board defended the corporate bill mill American Legislative Exchange Council (ALEC) in an editorial whitewashing the organization's climate change denial and vindicating their one-sided attacks on renewable energy.
This week, several large technology companies have left ALEC, which connects corporations, including many fossil fuel giants, to legislators. Just weeks after Microsoft ended its ties to the corporate bill mill for its attacks on renewable energy policies, Google chairman Eric Schmidt announced in an interview with NPR's Diane Rehm that his company would not renew its membership with ALEC, stating that ALEC is "literally lying" about climate change and that its policies are "really hurting our children and our grandchildren and making the world a much worse place." Facebook, Yelp, and Yahoo quickly followed.
In response to the fallout, The Wall Street Journal defended ALEC and demonized Google in a September 26 editorial, claiming that "ALEC takes no position on the substance of climate change." This echoes ALEC's recent statement refuting the claims of climate change denial and defending their position on climate and renewable energy policies.
But throughout the years, ALEC has made their denial of the scientific consensus on climate change clear. Their climate change model bill -- one of many bills that the legislative members later push through state legislatures -- declares that "human activity" may lead to "possibly beneficial climatic changes," going on to say that climate change influences "may be beneficial or deleterious." Yet consensus reports have found that the negative impacts of global warming will far outweigh any potential benefits. This falls in line with ALEC's stance on the consensus itself -- at its most recent conference, the organization featured the Heartland Institute's Joseph Bast who claimed that "there is no scientific consensus on the human role in climate change." The organization also featured a document called "Top 10 myths about global warming" on its website for years, including as a myth that "human activity is causing the earth to warm," according to Forecast the Facts and the Center for Media Democracy. And in their most recent statement on climate change, ALEC continued to undermine the consensus, writing: "Climate change is a historical phenomenon and the debate will continue on the significance of natural and anthropogenic contributions."
None of this was mentioned in the Wall Street Journal editorial.
The Wall Street Journal went on to defend ALEC's nationwide attacks on renewable energy, another driving force behind Google and others dropping their membership. The Journal derided Google's many investments in wind and solar projects for "kill[ing] birds," an argument that falls flat. Statistics show that renewable energy's impact on bird deaths is miniscule compared to that from buildings, urban light, cell phone towers, and even cats -- and is far outstripped by bird deaths from other energy sources, as seen in this chart by U.S. News and World Report:
Fox News anchor Gregg Jarrett wrote a column accurately depicting the college sexual assault epidemic and the fears victims face in reporting these crimes, a stark contrast to his colleagues and fellow conservative media figures who have dismissed, mocked, and stigmatized victims.
In a September 25 column for Fox News' website, Jarrett highlighted the high rate of assault on college campuses, and praised student activists for raising awareness of the often insufficient resources and efforts by colleges to address the problem (emphasis added):
Nearly 20 % of female college students have been sexually assaulted, according to a White House task force.
I suspect the true number is significantly higher. Many young women are reluctant to report it. They keep it secret for fear of embarrassment, shame, retribution, and the trauma of reliving the nightmare during legal or disciplinary proceedings. I get it. There are repercussions. Victims are especially afraid of being stigmatized or ostracized within the tight, insular social circles on campus.
Awareness is on the rise driven, in part, by student activism. Columbia University student Emma Sulkowicz, angry over how the school adjudicated her claim of rape, has taken to carrying a mattress around campus. Dubbed "Mattress girl" by fellow students and the media, her visually indelible protest has galvanized a growing demand for honesty and transparency. And why not? Schools should be required to publish accurate information about the frequency of assaults. It can be done without breaching individual students' privacy.
Jarrett's column unfortunately stands out among recent commentary about sexual assault in conservative media, where the fact that one in five women are assaulted at college is regularly dismissed. The Daily Caller has called the statistic "bizarre and wholly false," while the Washington Examiner called it "ridiculous."
Moreover, the trust and respect Jarrett treats the victims of these assaults with is unusual. Instead, their stories are often questioned or critiqued, with media figures suggesting that a large number of victims are lying about their assault, or are partly culpable.
The same day that Jarrett's column was published, some of his Fox News colleagues suggested that intoxicated women who are assaulted at college fraternity parties are responsible for their own assaults. Several co-hosts of Fox's Outnumbered defended a Forbes contributor who was fired after claiming that drunk women were "the gravest threat to fraternities" because the fraternity would be liable if a woman was sexually assaulted at a party.
This past summer, Washington Post columnist George Will came under fire for claiming that college efforts to curb sexual assaults were making "victimhood a coveted status that confers privilege." In his column, Will disputed the story of a college rape on Swarthmore's campus, implying he didn't believe the survivor's story qualified as an actual incident of assault. The survivor, Lisa Sendrow, told Media Matters about the violence she had experienced, how Will's dismissal of her story was triggering and damaging to her, and that she was diagnosed with PTSD and received violent threats after her story was first reported.
Earlier this year, a Weekly Standard contributor blamed feminism for sexual assault, because victims abandoned "feminine modesty" which had provided women "protection" from rape. National Review Online writers claimed rape was "instinctive" among some young men, that assaults involve "a large degree of voluntary behavior" from women, and that women are "being taught to believe they were raped." A New York Post columnist dismissed rape as "regrettable sex."
And Wall Street Journal editor James Taranto went so far as to claim intoxicated sexual assault victims are just as guilty as their attackers.
While Jarrett's column is sadly something of an outlier among conservative commentary on the issue, survivors now have one more voice in the media supporting their efforts to combat this epidemic.
The Wall Street Journal sandwiched their coverage of the largest climate change march in history between commentaries that cast doubt on global warming and the need for action, fulfilling the newspaper's trend of pushing harmful rhetoric against international climate negotiations.
On September 21, hundreds of thousands of people participated in the People's Climate March to raise awareness about the need for climate action. The New York City march, which was "by far the largest climate-related protest in history," received front page attention nationally and around the globe:
But the Wall Street Journal, headquartered a few blocks from the march, did not include their story on the action on the front page -- it was buried in the local section. Moreover, the paper criticized the march and cast doubt on the state of climate science, providing ammunition for critics to argue against climate action in the days ahead.
The day before the march, the Wall Street Journal published an op-ed headlined "Climate Science Is Not Settled," which cast doubt on the influence of human activities on global warming and argued for more debate about climate science's "uncertainties." Steven Koonin, former chief scientist of BP, claimed that the "climate has always changed and always will" to downplay the influence of human activities on climate change -- a favorite Fox talking point that is as inherently misleading as asserting that just because people have died naturally they can't be murdered.
The op-ed's flaws were broken down in a lengthy post from Climate Nexus. They explained that Koonin's extensive discussion about uncertainty ignores what those uncertainties actually entail, writing that the range of uncertainties will result in outcomes "from bad to worse." The Guardian's Dana Nuccitelli expanded that even the best case scenario will result in severe impacts, including "widespread coral mortality, hundreds of millions of people at risk of increased water stress, more damage from droughts and heat waves and floods, up to 30% of global species at risk for extinction, and declined global food production."
Moreover, Koonin's assertion that the "impact today of human activity appears to be comparable to the intrinsic, natural variability of the climate system itself" is false, according to Nuccitelli, as scientists have determined that human impacts have been the dominant cause of global warming since 1950.
Many experts say that the "uncertainties" around climate science are not an excuse for inaction, but rather should be looked at with a risk management perspective -- an apt description, as many top insurance companies are incorporating climate change into their long-term strategies and calling for climate action. Koonin himself admitted this, but only after discussing uncertainties for the bulk of the piece. According to a study from the University of Oxford, focusing on what uncertainties remain on the basic premise of manmade global warming -- as Koonin did -- can denigrate public understanding of climate science and the need for action.
Climate Nexus and Nuccitelli both noted that Koonin's op-ed was (for the most part) technically accurate, but that his framing would lead readers to reach inaccurate conclusions. They were right: the op-ed was picked up the next day by conservative news site Newsmax.com, which asserted that Koonin's op-ed "strikes a blow against climate change activists." And the National Review Online cited it as a "pathbreaking piece" in an article claiming that the scientific consensus on climate change is "crumbling" and equating acceptance of climate change to "hysteria."
A flagship report found that acting on climate change and improving the economy go hand in hand, which was reported by business media outlets across the globe. But three prominent outliers left their audiences in the dark: CNBC, Fox Business, and The Wall Street Journal.*
On September 16, many major business media outlets from Fortune Magazine to BusinessWeek reported on a recent analysis finding that the next 15 years are essential for acting on climate change, and that it is possible to do so while simultaneously growing the global economy. The report, titled "The New Climate Economy" and carried out by the Global Commission on the Economy and Climate, refutes the "false dilemma" between economic growth and climate change mitigation -- an important finding for businesses that want to thrive in the decades ahead. From Reuters:
Investments to help fight climate change can also spur economic growth, rather than slow it as widely feared, but time is running short for a trillion-dollar shift to transform cities and energy use, an international report said on Tuesday.
Yet the report was ignored by three prominent business media outlets -- a disservice to their business audiences who deserve to know the economic risks of global warming. The outlets that ignored the findings of the "New Climate Economy" report may not come as a surprise: CNBC, Fox Business, and The Wall Street Journal all have a sordid history with reporting on climate change.
When the "Risky Business" report was released earlier this year -- another report detailing the economic costs of climate change inaction -- CNBC was caught soliciting a writer to talk about "global warming being a hoax" to rebut the report's findings. The network's on-air coverage of "Risky Business" featured Squawk Box co-host Joe Kernen criticizing the acceptance of global warming as "Orwellian groupthink." Media Matters analyses found that CNBC misled their audience on global warming in the majority of their reporting on the topic in 2013.
Fox Business also regularly offers demonstrably false reporting on global warming. Co-hosts have often claimed that global warming is over, or even that we are in a period of global cooling. When the Risky Business report was released, Fox Business mocked its findings of heat-related mortalities and dismissed the report entirely as using "scare tactics."
Similarly, Wall Street Journal dismissed the findings of the Risky Business report, with its editorial board calling one of its authors' suggestions for a carbon tax as economically harmful as the 2008 financial crisis. The Journal has downplayed and dismissed the impacts of climate change and other environmental threats for decades, and gives a frequent platform to "skeptics" that urge inaction on climate change and dismiss the basic science behind the consensus.
The New Climate Economy was heralded by political leaders around the world advocating a transformation in the global economy. By ignoring it, these outlets are showing that their priorities are at odds with businesses that want to prosper in a changing climate.
*Based on a search of internal video archives from September 15 to 12 p.m. September 17 for "climate" for Fox Business and CNBC, and a Factiva search for "climate" for Wall Street Journal.
From the September 11 edition of MSNBC's The Ed Show:
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Gearing up for President Obama's prime-time address on U.S strategy against the terrorist group known as the Islamic State, right-wing media heaped praise on former Vice President and roundly discredited Iraq War architect Dick Cheney.
Several media outlets ignored the opening of the country's largest advanced biofuel plant -- which produces a fuel with a far lesser climate impact than gasoline that can help reduce our dependence on oil -- even though they previously claimed that such a biofuel "does not exist."
The New York Times brazenly claimed in 2012 that cellulosic ethanol, a type of fuel made from agricultural waste such as corn stalks, "does not exist" -- and many other news outlets also adopted this misleading framing. Industry journal Platts published a blog titled: "Puzzling over the US mandate for a fuel that doesn't exist yet," later clarifying that the fuel simply did not exist "in the US at commercial volumes" at the time. The Wall Street Journal editorial board wrote that "Congress subsidized a product that didn't exist" and "is punishing oil companies for not buying the product that doesn't exist." FoxNews.com called the fuel "merely hypothetical." National Review Online contributing editor Deroy Murdock stated "EPA might as well mandate that Exxon hire leprechauns."
However, since a new facility started producing cellulosic ethanol on a commercial-scale on September 3, these outlets have remained silent.* Poet-DSM Advanced Biofuels opened the biggest cellulosic ethanol facility in the country for production, which will "convert 570 million pounds of crop waste into 25 million gallons of ethanol each year." The Iowa facility is being heralded as "a major step in the shift from the fossil fuel age to a biofuels revolution."
Cellulosic ethanol and other "advanced biofuels" are included in the Environmental Protection Agency (EPA)'s Renewable Fuel Standard (RFS), which requires oil companies to mix fuel made renewable sources into their product. This standard was part of a bill that passed during the Bush Administration with bipartisan support -- a fact that several right-wing news outlets failed to mention in their coverage.
A lifecycle analysis from Argonne National Laboratory estimated that the type of fuel produced at the new Poet-DSM facility emits up to 96 percent fewer greenhouse gas emissions than conventional gasoline. The Poet-DSM facility is the first of three cellulosic ethanol plants scheduled to start production this year, which will together produce an estimated 17 million gallons per year. Jeremy Martin, an expert from the Union of Concerned Scientists, called the plant opening "an important milestone on the road to clean transportation." Martin added: "With efficient vehicles and clean fuels like cellulosic biofuel we can cut our projected oil use in half in 20 years."
*Based on a search of publicly available content from September 1 - September 7.
Photo at top of cellulosic biofuel crop from Flickr user KBS with a Creative Commons license.
A Wall Street Journal op-ed downplayed the seriousness of food insecurity in the United States, claiming that government research on the topic "isn't about hunger" and dismissing the millions of Americans who faced uncertain access to food last year.
On September 2, the U.S. Department of Agriculture (USDA) released its annual report on household food security in the United States, finding that 17.5 million households in the country were food insecure in 2013, meaning that they had "limited or uncertain" access to "nutritionally adequate and safe food."
In response to the USDA report, The Wall Street Journal published a September 3 opinion piece by James Bovard attacking government focus on food insecurity as a measurement of widespread hunger in the United States. Bovard suggested thatmembers of food-insecure households are not legitimately hungry because "widespread hunger" has been "debunked" by another USDA report that found children in low-income households consume more calories on average than those in higher-income households. Bovard cited the higher consumption of calories by children in low-income households as evidence of a "paradoxical relationship between food stamps and food insecurity" and demanded more transparency on what food stamp benefits are being spent on.
But by denying the legitimacy of measuring food insecurity, Bovard erased food insecurity's pervasive impact across the United States. Although hunger and food insecurity are in fact separate issues, as Bovard pointed out, the USDA underscores that they are still "related." According to the USDA, "Food insecurity is a household-level economic and social condition of limited access to food, while hunger is an individual-level physiological condition that may result from food insecurity." The USDA began to distinguish between food insecurity and hunger in the department's research due to a "lack of consistent meaning of the word" hunger.
Citing higher calorie consumption among children in low-income households as evidence that debunks child hunger is also misleading. As the Food Research and Action Center points out, food insecure and low-income people are especially vulnerable to obesity, due to "[l]imited resources and lack of access to healthy, affordable foods," which are primary factors in those living in poverty consuming higher-calorie foods. The center says that healthy food is often more expensive and less available than energy-dense, nutrient-poor foods.
Charles and David Koch, brothers and the oil barons who are already shaping the 2014 midterm elections according to recently leaked audio recordings, are often portrayed as environmentally responsible advocates of the free-market that are unfairly targeted by Democrats. However, their political influence, which benefits the fossil fuel industry and their own bottom line, is unparalleled.
The New York town of Greece, whose policy of allowing sectarian Christian prayers to be delivered before town meetings was the subject of a recent First Amendment challenge before the Supreme Court, has now adopted a new set of rules that appear to exclude non-believers from this practice -- discrimination that the town's defenders in right-wing media pretended didn't exist.
In May, the conservative justices of the Supreme Court ruled in Town of Greece v. Galloway that the prayer offered before this town's meetings was permissible under the First Amendment -- despite the fact that "the invocations given ... were predominantly sectarian in content," which "repeatedly invoked a single religion's beliefs," as Justice Elena Kagan explained in her dissent. Yet the majority found this apparent preference for Christian prayers constitutionally acceptable because the town assured the Court "that a minister or layperson of any persuasion, including an atheist, could give the invocation." It was this claim that the prayer policy was non-discriminatory and would allow non-Christians to participate that the Court, as well as right-wing media outlets, relied upon.
After the decision, Washington Post columnist George Will attacked the Jewish and atheist plaintiffs who challenged the town's prayer policy, calling them "prickly plaintiffs" and "flimsy people" who were "theatrically offended" over nothing more than "brief and mild occasional expressions of religiosity." The Wall Street Journal also celebrated the conservative decision in Town of Greece, and specifically hailed the inclusivity the town of Greece had told the Court it practiced:
The town of Greece used mostly Christian prayers because its citizens are predominantly Christian. Yet when rabbis and clerics of other faiths asked to give the prayer, they were welcome. Even a Wiccan priestess was allowed to issue what we suppose was an anti-prayer. Council members and visitors were under no obligation to pray along and there was no evidence of punishment or even disapproval for anyone who didn't.
Both Will and the Journal ignored the fact that town officials extended those invitations to non-Christians only after the lawsuit was filed.
Now it appears the town of Greece has backed away from the inclusivity that right-wing media touted. As the Rochester Democrat and Chronicle reported, last week the town adopted a new policy for its legislative prayer that is being condemned as "an enormous bait and switch" because it seems to bar the non-believers the Supreme Court claimed were allowed to participate. Designed by the religious right's Alliance Defending Freedom -- the legal organization who led the Court to believe that "a minister or layperson of any persuasion, including an atheist, could give the invocation" -- the new guidelines require that speakers represent a local, established religious organization that "regularly meet[s] for the primary purpose of sharing a religious perspective."