Technology And Speech: A Conundrum

Americans have always engaged in disinformation. Political foes have historically disparaged each other; activists of the Left and Right have used pamphlets and newspapers, then radio and television, to spread bile and bigotry. Those of us committed to the principles of free speech have argued that–whatever the damage done by propaganda and lies (Big and small), allowing government to censor the marketplace of ideas would be a greater danger. 

I recently posted a relatively lengthy defense of that belief, which I continue to firmly hold.

Nevertheless, It’s impossible to ignore the fact that today, technology–especially the Internet–has vastly increased the ability to disseminate lies, misinformation, disinformation and propaganda, and I suspect I am not the only free speech purist who worries about the growth of widely-used sources that enable–indeed, invite and encourage– inaccurate, malicious and hateful communication. 

Elon Musk’s takeover of Twitter (now “X”) is a prominent example. Musk dispensed with the site’s previous content moderation policies, invited Trump to return, and recently welcomed back the far-right Austrian who received donations from and communicated with the Christchurch terrorist before the 2019 attack. Since Musk purchased the social media site, such far right users have proliferated.

The founder of the so-called Identitarian Movement, Martin Sellner, who preaches the superiority of European ethnic groups, was banned from Twitter in 2020 under the former management along with dozens of other accounts linked to the movement amid criticism over the platform’s handling of extremist content.

He’s back.

As Max Boot recently wrote in the Washington Post, “X (formerly Twitter) has become a cesspool of hate speech and conspiracy-mongering.” 

The problem became especially acute following Hamas’s Oct. 7 attack on Israel when the platform was flooded with antisemitic and anti-Muslim misinformation. It’s like watching a once-nice neighborhood go to seed, with well-maintained houses turning into ramshackle drug dens.

That deterioration of the neighborhood has been confirmed by organizations tracking digital bias:

The Center for Countering Digital Hate reported a surge of extremist content on X since Musk took over in 2022 and fired most of the platform’s content moderators. The center found tweets decrying “race mixing,” denying the Holocaust and praising Adolf Hitler. The thin-skinned tech mogul responded by filing suit; early indications are that the federal judge hearing the case is skeptical of X’s claims.

The focus of Boot’s article wasn’t on the Free Speech implications of bigotry spewed by widely-used social media platforms, but on the fact that taxpayers are essentially subsidizing this particular cesspool.

What galls me is that, as a taxpayer, I wind up subsidizing X’s megalomaniacal and capricious owner, Elon Musk. His privately held company SpaceX is a major contractor — to the tune of many billions of dollars — for the Defense DepartmentNASA and the U.S. intelligence community. He is also chief executive of Tesla, which benefits from generous government subsidies and tax credits to the electric-vehicle industry.

Musk needs to decide whether he wants to be the next Donald Trump Jr. (i.e., a major MAGA influencer) or the next James D. Taiclet (the little-known CEO of Lockheed Martin, the country’s largest defense contractor). Currently, Musk is trying to do both, and that’s not sustainable. He is presiding over a fire hose of falsehoods on X about familiar right-wing targets, from undocumented immigrants to “the woke mind virus” to President Biden … while reaping billions from Biden’s administration!

 

Musk is a “front and center” example of the conundrum posed by “Big Tech.” His obvious emotional/mental problems make it tempting to consider him a singular case, but his misuse of X in furtherance of his narcissism is simply a more vivid example of the problem, which is the ability of those who control massive platforms to distort the marketplace of ideas to an extent that has previously been impossible.

 

I have absolutely no idea what can or should be done to counter the threat to democracy, civic peace and reality that is posed by social media platforms and propaganda sites masquerading as “news.” Wiser heads than mine need to fashion regulations that require responsible moderation without infringing upon the genuine exchanges of opinion–even vile opinion– protected by the First Amendment. Figuring out how to walk that line is clearly beyond my pay grade.

 

One thing that government can do, however, is refrain from financing people who, like Elon Musk, are using our tax dollars to create division and foster bigotry. The First Amendment may protect his cesspool from sanctions, but it certainly doesn’t require financial support. As Boot concludes, Musk

 

 can espouse views that many Americans find abhorrent, or he can benefit from public largesse. He can’t do both — at least not indefinitely.

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Can You Stand Another “Re-run”?

The current wave of book banning efforts I referenced a few days ago reminded me of an essay I wrote about the importance of intellectual freedom some twenty-five years ago, for an ALA publication. I dug it out, and decided the observations were still valid–and, unfortunately, even more relevant. So– with apologies for both the length and self-citation– I’m sharing it.

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Not too long ago, I had a conversation with a librarian involved professionally with issues of intellectual freedom. “Sometimes,” she said, “I get so tired of it. I wonder why I continue to fight.” I’ve thought about that conversation several times; if I could do an instant replay, I think I would tell her that I know why she keeps at it. It’s because it is so important.
I spent six years as Executive Director of the Indiana affiliate of the American Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.
If that statement seems extravagant, consider both the ideological basis of liberal democracy and the nature of contemporary threats to that tradition.
Our national history would have been impossible without the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.
Current assaults on that worldview come primarily, although certainly not exclusively, from communitarians of both left and right. Michael Sandel, Mary Ann Glendon and others complain that the American emphasis on individual rights has gone too far, that it is time to readjust the balance between individual liberty and the “common good.” The “common good” is presumably to be defined collectively; that is, by the majority.
There is enormous appeal to this argument. In a world that seems increasingly complex, impersonal, and litigious, a world over which individuals have less and less control, the notion of “community,” like “family,” offers nourishment and empowerment. Who does not long, in some part of her psyche, for a warm family, friendly neighborhood and supportive tribe, where one is valued and/or unconditionally accepted, and where everyone shares the same life goals and values? Freud suggested that the need to lose oneself in a collective identity is the most ancient, persistent and universal force operating on the human species. The problem, of course, is that majorities can be every bit as tyrannical as solitary despots, and there is no guarantee that my family’s values will be the ones that prevail, or that my tribes’ folkways will be the ones that are followed. The fundamental issue in every society is where to strike the balance between human liberty and communal norms. Ultimately, the debate comes down to a conflict between libertarian and collectivist visions of the good life.
In this war over competing worldviews, intellectual freedom is the battlefront. Discussions of the First Amendment often proceed as if the expressive freedom provisions are separate from the religious liberty clauses. They aren’t. In fact, the First Amendment rests upon a magnificent unifying premise: the integrity and inviolability of the individual conscience. The First Amendment is really an integrated whole, protecting our individual rights to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences. It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.
Our whole experiment with democratic governance rests on that foundation. As Alexander Mieklejohn famously observed, a nation that is afraid of an idea–any idea–is unfit for self-government. Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.
Those who oppose free expression rarely, if ever, see themselves in opposition to the western liberal democratic tradition. Most of the people who want to ban the book or painting, who want to protect the flag or the Virgin Mary from desecration, are simply acting on their belief in the nature of the public good. Censors see unrestrained freedom as a threat to the social fabric, while civil libertarians believe the greater danger consists in empowering the state to suppress “dangerous” or “offensive” ideas. Censors see no reason to protect expression of low value–no point in protecting the marketplace for the exchange of shoddy goods. They have enormous difficulty understanding the difference between protection of the principle of free speech and an implicit endorsement of the offensive material at hand. And they have little or no appreciation for the argument that once one hands over to the state the authority to decide which ideas have value, no ideas are safe.
I spent my years at the ACLU battling the usual, recurring attempts to control what others might read, hear or download. I attended a public meeting in Valparaiso, Indiana, where an angry proponent of an ordinance to “clean up” local video stores called me “a whore.” I was accused of abetting racism for upholding the right of the KKK to demonstrate at the Statehouse. I was criticized for failure to care about children when I objected to a proposal restricting minors’ access to library materials. In each of these cases, and dozens of others, the people who wanted to suppress materials generally had the best of motives: they wanted to protect others from ideas they believed to be dangerous. To them, I appeared oblivious to the potential for evil. At best, they considered me a naïve First Amendment “purist;” at worst, a moral degenerate.
My introduction to the politics of free speech really came several years before my stint at the ACLU, when I was retained as local counsel to the plaintiffs in American Booksellers v. Hudnut. The case involved a challenge to an ordinance drafted by Catherine MacKinnon, a law professor, and Andrea Dworkin, a feminist author. Both are well known crusaders against pornography, which they define quite differently than the law defines obscenity, and which they argue is more harmful to women than to men. Their ordinance attempted to define as action (rather than expression) sexually explicit materials depicting the “subordination of women.” Such “action” was then treated for legal purposes as sex discrimination. (“When I use a word,” said Humpty Dumpty, “it means exactly what I say it means!”) MacKinnon and Dworkin had shopped their proposal around the country without much success before they found eager proponents in Indianapolis.
While the Courts would make short work of the ordinance, the politics of its passage was an eye-opening experience. Bill Hudnut was, and remains, a close personal friend; I had been the Corporation Counsel (chief lawyer) in his administration. To this day, despite lengthy conversations, he does not see the implications of the ordinance he signed. Bill had been an active Presbyterian minister before assuming office, and simply was appalled by materials that he felt degraded women. When MacKinnon and Dworkin enlisted a local female Councilor on behalf of their pet project to “protect” women, he was supportive. The Councilor has not been identified with women’s causes either before or after her sponsorship of the ordinance. She has, however, been supportive of efforts to restrict children’s access to videos in the public libraries, and has generally been an ally of the religious right. Her alliance with MacKinnon and Dworkin, widely considered to be “radical feminists,” was surreal.
On the evening the vote was taken, busloads of people from fundamentalist churches filled the Council chambers. To the eternal credit of Indianapolis’ women’s organizations, there was no support from local feminists. Only three people had been given permission to speak against passage–me, as a courtesy shown to a former member of the administration; Bill Marsh, a professor of Constitutional law who was then Vice-President of Indiana’s ACLU; and Sam Jones, the Executive Director of the Urban League. Even Councilors who had great qualms about the ordinance were unwilling to stand against the sea of faces from area churches. (The trouble with representative government, as a friend once bitterly remarked, is that it is representative.) One after another, uncomfortable Councilors rose to “explain” their votes; my favorite came from a longtime friend, who said that —while he had “great respect for Mrs. Kennedy’s legal opinion”–he wanted the record to show that he was “against pornography.” The crowd cheered approvingly.
Most of those who voted for the ordinance knew it stood virtually no chance in court. They were willing to spend some tax dollars to defend it, in order to avoid the pain of opposing the righteous folks who had taken the time and trouble to attend the meeting. And the courts did as expected; Judge Sarah Evans Barker issued an eloquent, ringing endorsement of the principles of free speech in her District Court opinion striking down the measure. The Seventh Circuit and Supreme Court each affirmed, and the case has since become a staple in courses on Free Speech and Constitutional Law.
In many ways, American Booksellers v. Hudnut is a perfect example of what the Founders feared when they warned of “the tyranny of the majority” and the need to guard against popular passions. The majority of citizens saw the debate in very simple terms, as did my Councilor friend: one is either for or against “pornography.” Quibbles about what pornography is, concerns about vagueness or over-breadth, were dismissed as lawyer weaseling; like Potter Stewart, they might not be able to define pornography, but they knew it when they saw it.
For civil libertarians, of course, the issue was very different. We were not arguing for the value of pornographic speech–although we were more open to the possibility that pornographic expression might, in fact, have some value. The issue was–and is–our right to decide for ourselves what books we shall read, what ideas we shall consider, what opinions we shall hold, free of government interference. Once the state asserts a prerogative to determine which ideas we may entertain, the balance has shifted from the right of the individual to the power of the government. At that point, citizens no longer have rights, but privileges that may be revoked whenever the political winds shift. For me as a civil libertarian, the issue is not which books I read; the issue is who decides which books I read?
The western democratic tradition literally depends upon the answer to that question.
Those of us who understand the nature of the debate over intellectual freedom in this way must contend with a formidable deficit in citizenship education. Both at the ACLU and at IUPUI, where I currently teach law and public policy, I have encountered widespread ignorance of the most basic elements of the American constitutional system. We desperately need to improve understanding of the theory of limited government and individual rights –not so that people will necessarily come to the same conclusions I reach, but so that we can at least argue about the same issues.
People try to remove materials from library shelves or the corner video store because they find the materials offensive. They try to prevent Klan marches because they disagree strongly with the hateful message of the Klan. Their arguments are against these particular ideas. They are not generally trying to strengthen the power of the state, nor intending to circumscribe the exercise of personal moral autonomy. Civil libertarians see those outcomes as inevitable consequences of censorship, however, and so those are the issues we address. In a very real sense, it is a case of culture warriors talking past each other.
People like my librarian friend, who see the fundamental relationship between the marketplace of ideas and self-government, who recognize the holistic nature of individual rights, simply must keep trying to make those connections visible to the general public. We must all work to raise the level of familiarity with the underlying principles of the Constitution and the Bill of Rights. We must agitate for more and better government instruction in our schools, and we must insist on more honest discourse from our political leaders and the media. We must constantly reinforce the lesson that the proper response to a bad message is not government censorship, but free citizens offering a better message.
Somehow, we must get the general public to understand that when we use the power of the state to decide what citizens may read or view, we aren’t censoring smut, or protecting children, or prohibiting blasphemy, or respecting the flag. We are undermining the values that lie at the very core of our national identity.
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Appalling

In a comment a couple of days ago, Sharon referenced a truly appalling situation in Floyd County, Indiana. She’d received a request for a donation from the Indiana Sheriff’s Association. The newsletter accompanying the request profiled a program instituted by the sheriff of Floyd County: Residents Encountering Christ. The newsletter described a 3 day retreat, reporting that Sheriff Bush “went in and talked to inmates, sharing his faith and encouraging them in theirs. In all, 41 inmates were baptized during this event. Local news media took note of the program’s success.”

As Sharon wrote, “I’m not sure which I find more appalling, that a law enforcement officer uses his position of power to proselytize to inmates or that local ‘journalists’ consider baptisms achieved under these conditions to be  ‘a success.'”

I am equally appalled.

Law enforcement officers assume an obligation to abide by the Constitution. There is a very lengthy string of  legal precedents confirming the lawlessness–and cluelessness– of Sheriff Bush’s behavior. 

That cluelessness extended to the news coverage.According to the local News and Tribune (paywall),

On July 24th, 41 Inmates at the Floyd County Jail that volunteered to take part in Residents Encounter Christ (REC) were baptized. What a powerful moment to witness! 

One has to be truly naive–or blissfully unaware of the reality of power relationships–to believe that inmates “volunteered.” (As numerous women can attest, when someone with authority to make your life miserable “requests” some “accommodation,” it’s hard to refuse.) 

There is absolutely no legal argument supporting Sheriff Bush’s appalling conduct. Numerous Supreme Court opinions have echoed Justice Black’s words in Engel v. Vitale:

The constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

That case considered the constitutionality of a rule promulgated by the New York State Board of Regents, authorizing public schools to hold a short, “voluntary” prayer at the beginning of each school day. The Court held that state laws permitting prayer “must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs.”

It is true–and very troubling–that the current Supreme Court has eroded previous First Amendment jurisprudence. But even those regrettable decisions don’t come close to making Sheriff Bush’s activities permissible. Perhaps someone should share these paragraphs from Justice Black’s decision with the Sheriff.

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power.

The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say – that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

Sponsorship of religious activity by a government official is unconstitutional.

Floyd County has a Sheriff who is either ignorant of the Constitution or willing to ignore it. In either case, he’s unfit for public office.

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Charters Aren’t Vouchers

The media recently reported the results of a recent study of schools in Indiana and other states, and found that children attending public charter schools had better learning outcomes than those in traditional public schools or voucher schools.

When I saw the headlines, I cringed–not because of the study’s findings, which seem credible, but because I’d be willing to bet that nine out of ten people reading those reports don’t understand the difference between charter schools and voucher schools–and it’s a critical difference.

Charter schools are independently run public schools that are granted greater flexibility in their operations than traditional public schools. (Theoretically, at least, that flexibility is in exchange for greater accountability for performance.) In the Indianapolis Public School system, leaders at these schools have independent control of policies and academics while still being part of the public school district. 

Because they are public schools, charters are not allowed to charge tuition. They are not allowed to teach or favor any religion. And importantly, since charter schools are public schools, they are constrained by the Constitution and Bill of Rights, and prohibited from discriminating on the basis of race, sex, gender, socioeconomic status, previous academic scores, or special education status.

Vouchers–as I have explained repeatedly on this site–are very different. Voucher programs send public money–tax dollars– to private schools to offset the tuition charged by those schools. A vast majority of the private schools that accept vouchers are religious, and a vast majority of students employing those vouchers use them to attend religious schools. Furthermore, virtually all of those voucher schools discriminate on some basis–either limiting enrollment to members of a particular faith, excluding students with special needs, or–in several high-profile situations–excluding gay children, or children with gay parents. 

There are problems with charter schools, particularly with those that have contracted with for-profit entities to manage them, but those problems differ substantially from the issues presented by voucher programs. Vouchers weren’t developed in an effort to improve education; they were meant to be “work-arounds.” The First Amendment, along with many state constitutions, prohibits the use of public funds to support religion or religious institutions. Voucher proponents argued that the millions of tax dollars going into the coffers of religious schools are “really” going to the parents, and that the parents are individual citizens who should be free to spend those dollars to send their children to the school of their choice. (And I have a bridge to sell you…)

Courts bought that argument.

The study found that students who attended charters  in Indianapolis had somewhat stronger educational outcomes than those in either traditional public schools, or in IPS “innovation” schools, which are a different type of charter. (Numerous studies have found that children attending voucher schools do no better–and often do more poorly–than similar children attending traditional public schools.)

Indianapolis students in poverty who attend charter schools showed stronger academic growth in math and similar growth in reading compared to the state average, according to the study. 

CREDO’s own metric for comparison also found that students at Indianapolis charter schools gained more days of learning in math and reading during a typical academic year than similar students at traditional IPS district schools and innovation charter schools within the district. Other comparisons in the study include:

Black and Hispanic students at charter schools had stronger academic growth in math and reading compared to Black and Hispanic peers at district schools. No significant difference in learning gains were found between the same student groups in innovation charter schools compared to district schools.

Students in poverty at charter schools had more learning gains in math and reading compared to their peers at district schools. No significant difference in learning gains were found between the same student group in innovation charter schools compared to district schools.

No matter what type of school English Language Learners in Indianapolis attend from the study, they show similar learning gains in reading and math.

The theory behind charter schools was that their greater flexibility would allow them to experiment with curricula and other aspects of the educational environment, and that successful experimentation could then be “imported” into the traditional public schools. According to the linked article, that is precisely the approach being taken by the IPS Superintendent.

I do welcome the study–and for that matter, all evidence of what works and what doesn’t– but I’d be a lot more enthusiastic if i wasn’t convinced that it will be intentionally mischaracterized to support voucher proponents’ efforts to defame and de-fund our public schools….

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What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. 

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue? 

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.) 

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech,  to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

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