Blog Disclaimers and Free Speech: More Legal ≠ Ethical

Wow. I open my stats counter this morning to find that nearly 400 people read my blog yesterday (correction: I have re-checked, and the figure was actually 513)—a frightening discovery, frankly. And then when I look at the comments section, I discover the reason for the spike in readership.

Andrew Sullivan* kindly linked to my posting yesterday on his Daily Dish blog, which has an immense readership compared with my much more modest daily readership (http://andrewsullivan.theatlantic.com/the_daily_dish/2008/09/intimidating-th.html). I am certainly grateful to Andrew Sullivan for the publicity (and, yes, well, perhaps a bit flattered to discover a journalist of his stature has read my blog), but also abashed by the sudden discovery.

It makes knowing what to say today harder than usual. I feel I am writing more for an audience in today’s posting, and less for myself. And given the size of the audience, it's important that I say something important.

Perhaps the most important thing I can do in today’s posting is address the question of a respondent yesterday about why my blog contains a disclaimer, when I’m advocating free speech.

That’s a good question. The answer has everything to do with what I said in my second posting yesterday, about the distinction between legality and ethicality. As that posting notes, even churches and institutions they sponsor—or especially churches and church institutions?—are not above using the law to try to curb free speech, and to trample on the rights of those who have far less economic clout and capability to engage in spin control and image management than churches and their institutions have.

Unfortunately, in saying this, I am writing from grim personal experience. In fact, only yesterday, the day on which I blogged about free speech issues, I received a legal threat from an institution—a church-owned one—that has repeatedly sought to curb my free speech on this blog.

The letter demanded that I remove a posting from my blog (actually, it demands “the immediate removal of his above-referenced blog”), or legal action would be taken against me. The demand that I remove something I have posted on my blog is based on the claim that I have violated a legal covenant that forbids me to post anything that has even an indirect adverse effect on the organization with which I have entered this covenant.

I have received previous threats from this institution. In a previous letter from the institution’s legal counsel, I was informed, to my astonishment, “We paid for his silence”(!!). This letter demanded “the immediate removal of his above-referenced blog.”

I have not violated a legal covenant with the institution in question, and have no intention of doing so. Even so, I have bent over backwards to accommodate reasonable requests from the institution. I have gone so far as to delete material from my blog when the institution has demanded that I do so—even when that material in no shape, form, or fashion violates any stipulation of any legal covenant into which I have entered.

I have done so solely because I am trying to avoid legal action that would be financially ruinous to Steve and me at this point in our lives. The church-owned institution in question knows that we do not have the economic wherewithal to fight a protracted legal battle. In fact, this church-owned institution helped create the precarious economic situation in which we find ourselves, by making promises to us on which we acted, indebting ourselves, and then violating those promises and leaving us with the debt we incurred because we were foolish enough to believe that good church folks are bound to be people of their word.

I have, however, adamantly refused the demand to suppress my entire blog, and I have rejected the claim of the institution that is harassing me that it can censor my blog on a routine basis. As I put the point in a letter to my attorney when the harassment began,

There is a significant issue of freedom of speech at stake here, and I am surprised that [Church-Owned Institution’s legal counsel] apparently does not seem to see that issue clearly. [Church-Owned Institution] has not bought my right to free speech. Nor has [Church-Owned Institution] bought the right to censor me or my writings, insofar as nothing I publish violates the discrete terms of my separation agreement.

And if something I publish does violate the discrete terms of the agreement, the burden of proof is on [Church-Owned Institution] and/or [its president] to show how what I have written or may write violates the terms of the agreement. Merely stating that I have violated the agreement does not constitute proof.

Bullying me will not influence me to stop doing what I have a legal right (and ethical obligation) to do: to continue writing, as a theologian, about issues that concern me. I am not impressed by and do not let the behavior of bullies sway decisions I make about my vocation.

I must say frankly that I am perturbed by the bullying in [Church-Owned Institution’s legal counsel’s] letter, and in how the letter characterizes the claims of [Church-Owned Institution] and [its president] vis-à-vis my human rights and my rights as a scholar-theologian.

In this attempt to shut down my blog, there is an implication that a [Church-Owned Institution] has a right to censor me as a theologian blogging about [name of church in question] issues or [name of church in question] events. This implication depends on a dangerous and entirely insupportable extension of discrete, simply limited terms of a separation agreement to my entire right to free speech.

I will not stand for further bullying of this sort. I do not intend to stop writing, thinking, or dialoguing as a scholar-theologian. If anything is unethical in this story, it is what [Church-Owned Institution’s president] and [Church-Owned Institution] have done to Steve Schafer and me.

Hence the disclaimer. An institution that has placed my life partner and me in a difficult economic situation by making promises to us and then violating them now claims a legal right to censor my blog on an ongoing basis, and threatens to file suit against me on the ground that, though I have never named this institution in any posting it is claiming to find offensive, even what I say that can be construed as indirectly affecting the church-owned institution in a negative way will be the basis for legal action.

To my way of thinking, this situation underscores the problem I tried to identify in yesterday’s posting about legality and ethicality. In areas in which gay citizens are not legally protected from firing simply because they are gay (and the church-owned institution in question is in such an area), churches and their institutions know full well that they can take full advantage of the law, as well as of homophobic prejudice, when they proceed against openly gay people who annoy them. They are willing to use homophobic prejudice to their advantage, to smear the reputations and destroy the careers of gay folks. Church people are willing to do this, members of churches that profess to deplore homophobia . . . .

And they often still get away with it. Those of us who fight back in these areas often pay a steep price—unless organizations dedicated to defending human rights offer us assistance, and unless our allies in the gay community help us to publicize our stories.

Otherwise—and churches and their institutions know this very well—in areas where homophobia still sways the decisions of juries (and where homophobia is legally enshrined), we who stand up and fight very often find ourselves fighting a losing battle, with ruinous consequences to us personally and little to show for the battle.

What we do have going for us, of course, is our story—when others are willing to listen to it carefully and sympathetically. I have refrained from telling the story because I want to avoid legal action. I am, however, prepared to tell it if the harassment continues. As my letter to my attorney when the harassment began notes,

This is a story in which I believe accrediting bodies for institutions of higher education,** churches, legal rights watchdog groups, and groups assisting gay and lesbian persons to fight against discrimination will all be interested.

I do not intend to make the story public, because doing so would violate the terms of my separation agreement. I must state, however, that if [Church-Owned Institution’s president] and/or [Church-Owned Institution] continue to harass me, make unfounded accusations against me that bear on my character, and seek to shut down my right to free speech, I will fight these actions in any legal arena in which I can fight.

And that will mean making the story public. At that point, I will be prepared to share the story and all its details as widely as possible, and will contact every agency I can think to contact, which might have an interest in the story.

So there it is: the reason for this blog's disclaimer. Even saying what I have said in the preceding posting may well result in legal action on the part of this church-owned institution—though nothing in what I have said identifies the institution in question.

And saying that leads me to issue a plea, something I find difficult to do, since I tend to be a self-reliant sort of person: if any readers of this blog know of organizations that might offer assistance to someone who finds herself or himself in the predicament in which Steve and I now find ourselves, we’d surely like to know of those organizations.

For those of us living in the heartland, it can be difficult to obtain support and publicity when we fight our battles against homophobia. The power centers of the media are elsewhere. Our voices, the voices of those of us in middle America, just don’t reach far.

We need allies. We need assistance. The battles we are fighting in the places in which we are seeking to live with dignity and respect because our roots are in these places are every bit as important as those fought in the big-city bicoastal venues of the nation. Perhaps even more important, since, unless homophobia is defeated in the heartland, it will continue to warp our entire political life, to the detriment of people everywhere in the country . . . .

*P.S. A personal note of thanks to you, Mr. Sullivan, in case you happen to read this posting. I appreciate the link very much.

**I am disclosing nothing damaging about the identity of Church-Owned Institution in noting that my career has been spent in the academy.

Legal ≠ Ethical: Lessons about Church Behavior from the Civil Rights Movement

What I posted earlier today has me thinking about all the introductory ethics classes I’ve taught over the years. Ethics intro texts invariably include a chapter on the topic of the relationship between legality and ethicality. They do so because this is a big topic in ethics, one that is unavoidable in the professional lives college graduates will lead. I have always found student reactions to this chapter fascinating.

I’m thinking here of my note in the preceding post that there is a 1929 law on the books in Italy that makes it possible for comedian Sabina Guzzanti to be charged with a crime for satirizing the pope in a comedy skit. Laws exist that, in some cases, permit unethical people to behave unethically while enjoying the protection of the law. As I have noted several times on this blog, having grown up in a household headed by an attorney, I learned a crucial lesson early in life about the relationship between laws and ethics: this is that attorneys and judges can themselves be capable of defending what they know to be unethical. They can, I’m sorry to report, even be guilty of unethical behavior that is protected by the law.

This being the case, I am always perplexed that a majority of students taking intro ethics courses in universities seem to take for granted that what is legal is automatically ethical—that the law provides a trustworthy guide to what is ethical in any society.

I have found that even African-American students in the HBCUs in which I have taught can make that assumption. When they do, I quickly try to provide my students with a short history lesson. I point out to them that those who challenged segregation in the American South in the pre-Civil Rights era were challenging the law of the land. Segregation was not only a social and cultural practice. It was legally enshrined.

Drink from the wrong water fountain, insist on sitting at the front of the bus, ask permission to use an off-limits restroom, sit at a lunch counter and ask to be served: you could be jailed in the pre-Civil Rights South for asserting your fundamental human rights in these simple ways. In challenging legal segregation on the ground that segregation was dehumanizing and unethical, you were breaking the law.

Laws can be bad laws. What is legal can be draconian, from an ethical standpoint. The law can be the last refuge of a scoundrel. The law has been and often still is used as a tool to beat down those who ask for their rights to be protected. It has been and often is used as a tool of those who have money and influence on their side, to trample on the rights of those without money and influence.

It interests me that students often seem unaware of this until they are asked to think about real laws—specific laws—in light of ethical norms. Something in the upbringing of American students, particularly those who have grown up in church contexts, often leads students to equate legality and ethicality very simplistically and naively.

I suspect that “something” is that moral values are all too often taught, in church contexts and within churched families, as a set of dos and don’t’s that are akin to legal prohibitions. Morality looks like legal codes, in the way in which it is often taught in churches and families. It is a matter of learning what is proscribed and what is permitted, and of learning the quasi-legal penalties attached to breaking the moral law.

Morality is too seldom, in the way it is taught within churches and churched families, a matter of learning moral norms and then applying them, with reason and conscience playing key roles, in complex real-life situations in which values and norms often come into conflict.

In my view, churches do a terrible disservice to their adherents and to society at large when they reduce morality to a set of quasi-legal rights and wrongs that are to be enforced by the morality police. Teaching people morality this way infantilizes people. It prepares them for the rule of the unscrupulous who exploit the name of G-d to pursue their own self-interest and dominion.

And, of course, for anyone who grew up in the Civil Rights period in the American South, or who knows that history, this should not really be a shocking recognition. A majority of the churches—most white ones, but many black ones as well—were on the side of law and order when the Civil Rights movement challenged the law of the land.

So is it any surprise today to find churches and church institutions often siding with law and order when people challenge the legal enshrinement of prejudice and injustice today? Is it any surprise to find churches and church institutions fighting tooth and nail—using every legal resource available to them—to combat the rights of workers to unionize, for instance? Even when those churches teach that workers have a human right to form unions . . . .

Catholic hospitals have often combated the right of workers to organize, despite clear statements in Catholic social teaching that the right of labor to organize is a human right. Catholic hospitals have sometimes been willing to use legal clout and money to harass workers who insisted on their right of free speech and right to organize, as human rights.

Given the record of churches and church institutions when it comes to choosing between the ethical and the legal, and given what I saw churches capable of in the American South in the Civil Rights period, I'm never surprised when churches defend (and use) unethical laws to achieve dishonorable goals, even if their own teachings call those laws into question on moral grounds.

I have come rather to expect this of the churches and their institutions, I'm sorry to say.