Despite tea party cries for constitutional fidelity, the Culture Warrior’s Constitution continues to be a bizarre beast, indeed. First, the Culture Warrior’s Constitution diverges from actual law by purporting to withdraw First Amendment protection from non-western religions, like Islam, based merely on majority opprobrium. Thankfully, the courts disagree.
Now, per Sarah Palin, the Culture Warrior’s Constitution doubles down on this definitional mischief, by defining a “journalist” — a kind of actor entitled to freedom of speech — to exclude those who publish classified material in the exercise of their art. Settled law, of course, is quite to the contrary. See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971).
This is a new, clever, and corrosive method of conservative constitutional argumentation. Statutory draftsmen and lawyers will both know that arguing definitions allows one to work within and subvert a legal framework they otherwise can’t change. There’s nothing dishonest about it in most cases; it’s just good lawyering. Dishonesty enters the equation when the definitions being argued aren’t actually unsettled terms of art, subject to multiple interpretations — say, “Event of Default” in a sophisticated financial instrument — but words that draw from or exist solely based on their ordinary meaning. Like “religion,” “speech,” and “journalist.”
The definitional trick lets radical pundits like Palin feign allegiance to the law, by acknowledging the existence of overarching principles — “freedom of religion,” “freedom of the press” — but avoid their application by introducing clever limits below the surface. Such argumentation subverts both language and law. Words have meaning, and the basic principles of freedom weren’t forged as, and must never be wielded as, tools of exclusion. Ex-Governor Palin might be right about the danger posed by WikiLeaks’ existence — I really don’t know. But her method of reaching this conclusion ought to be deeply troubling.