trapped into a chair, my field of vision dominated by a video screen there was no turning away from and no switching off, a uniformed operative shouting slogans into my skull through a loudspeaker, I felt myself beginning to break. Yes, yes, yes, I have come to love Big Brother. Yes, American Airlines CEO Doug Parker, I will sign up for your stupid Aviator Red MasterCard with 50,000 bonus miles, if only you will make the screaming stop. An economy-class seat on American Airlines is unpleasant at the best of times, but after the fourth screeching high-volume credit-card pitch, I began to feel like poor Alex from A Clockwork Orange.
The great symbol of 20th-century-style totalitarianism is the loudspeaker. Censorship on the Lenin/Kim/Castro model is not oriented toward achieving silence but achieving its opposite: constant noise, always on message, pushing its victims toward homogeneity, conformity, and compliance. The great corporate dystopias of the science-fiction imagination have not come to pass and never will (for economic reasons that eluded Philip K. Dick and his ilk). But the naive libertarians among us should consider the great corporatist public-private partnerships of our time—airports, and air travel more generally—as an indicator of exactly how North Korean a corporation with the word “American” right there in the name can be when presented with a captive audience, temporarily delegated police powers, and the promise of credit-card profits, which are far fatter than those earned from ordinary airline operations.
It may be Mayor Eric Garcetti on the endless propaganda loop at LAX or Mayor Kasim Reed in ATL (I have not transited through Atlanta since the ascendancy of the comically named Mayor Keisha Lance Bottoms, whose announcements I am very much looking forward to), but the politicians are junior partners at best in this particular dystopia. This world belongs to Auntie Annie, and you will kneel before her.
Tyrants have always used the instruments of liberal democracy against liberalism and democracy. Political parties were a critical tool of oppression in Nazi Germany and the Soviet Union, and remain so in China and Venezuela, where the United Socialist Party has been proclaimed the “political vanguard of the revolutionary process” that is currently starving children to death by the thousand. Elections themselves have been put to anti-democratic ends everywhere from Cuba to Iraq. But democracy’s greatest gift to the enemies of democracy has been the mass media: radio, television, Pravda, Völkischer Beobachter, RT, NPR, Coughlin, Hannity, Bannon, a dozen thousand Petersburgian trolls on Twitter and Facebook.
Obvious tyrants such as Vladimir Putin and Viktor Orbán manage the media through such old-fashioned tools as murdering reporters and shutting down unfriendly outlets, but seduction is at least as effective as domination. Which brings us to the odd situation of Section 501(c)(3) of the U.S. tax code and Professor Philip Hamburger’s excellent new book on it. It bears the electric title Liberal Suppression—which of course calls to mind Jonah Goldberg’s smashing Liberal Fascism—above the considerably less sensational subtitle “Section 501(c)(3) and the Taxation of Speech.”
Readers should go into Professor Hamburger’s book with the foreknowledge that what’s between the covers is in tone and substance more like the subtitle than the title: an erudite, calm, straightforward, and illuminating legal argument that the current application of the U.S. tax code amounts to unconstitutional discrimination against churches and religious organizations threatened with the revocation of their nonprofit status—granted and governed under the auspices of Section 501(c)(3) of the tax code—should they engage in speech that is not to the liking of our would-be masters in Washington.
Hamburger, a professor at Columbia Law School, makes his argument with great intelligence and admirable modesty, and he does so in a way that is not only digestible by those of us with no legal training but also a genuine pleasure to read, something that cannot often be said of the lawyers who so often write about our public affairs with all the grace and wit of…lawyers.
Condensation will do some inevitable violence to the breadth and complexity of his argument, but Hamburger’s case is roughly this: The historical record is clear that American progressives have long sought to put a leash on the religious traditionalism that is the main impediment and alternative to American-style progressivism. This is evident from the Ku Klux Klan–inspired limitations on religious education—the Blaine amendments dating back to the 1870s that remain in force in 38 states—and other nativist insults to the Catholic Church that have come to be applied to other ornery Christian critics of contemporary liberalism.
Under the leadership of Hiram Evans—who exalted equally in the title Imperial Wizard of the Ku Klux Klan and his Congressional Country Club membership—the Klan and the wider nativist movement it represented spelled out a specifically liberal case against Catholic doctrine and ecclesiology, holding that American Protestant congregations were naturally tolerant and democratic whereas the Catholic Church was authoritarian and illiberal. Presaging both Herbert Marcuse’s “repressive tolerance” and German-style “militant democracy,” Evans argued that taking a liberal and tolerant view of Catholicism put liberalism and toleration themselves in mortal danger.
“Any church which violates the principle of tolerance should thereby lose its own right to tolerance,” Hamburger quotes Evans arguing, insisting that liberals who “believe in free thought and free speech” should not “tolerate the Catholic propaganda on these grounds,” because that propaganda is, in Evans’s telling, “founded on denial of free thought and speech to Catholics themselves, and aims at a denial of those rights to all men.” (The moral hysteria of the old Ku Klux Klan is strangely at home in the 21st century.)
American liberalism eventually incorporated a theological position—that churches should forgo direct involvement in politics as such—into its purportedly secular program. The historical record suggests strongly that Section 501(c)(3) imposes liberal Protestant theological dogma on the nation at large in clear violation of the First Amendment, insisting that everyone from Catholics to Orthodox Jews comply with the liberal idea of how a religious congregation ought to conduct its affairs.
Later came Lyndon Baines Johnson. Hamburger writes:
Prior to 1954, federal tax law did not limit the campaign speech of tax-exempt organizations. . . . Johnson’s role in this suppression is well known. As documented by (among others) James Davidson and Patrick O’Daniel, the enactment of section 501(c)(3)’s campaign restriction was engineered by Johnson in response to events in Texas. But Johnson’s contribution needs to be understood as part of the broader liberal demands for the segregation for speech.
In 1954, Johnson’s senatorial primary opponent was a Catholic named Dudley T. Dougherty. Johnson supporters sent around materials warning against the danger of the Roman Catholic–Mexican vote, and they were criticized for it. “Much of the criticism came from conservative anti-Communist groups, especially Facts Forum and the Committee for Constitutional Government, both of which enjoyed exempt status as educational organizations,” Hamburger writes. “During the campaign, therefore, in June 1954, Johnson arranged for Representative John McCormack—the Democratic whip—to ask the commissioner of the IRS to reconsider the exempt status of the Committee for Constitutional Government.” The commissioner reported that the committee had not violated section 501(c)(3)’s existing restrictions on using propaganda to influence legislation.
Johnson found out about this on July 1, 1954. And so, Hamburger reports, “on July 2, Johnson proposed an amendment that Section 501(c)(3) organizations ‘not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of any candidate for public office.’” Say this much for Lyndon Baines Johnson: He was not a procrastinator.
From the KKK to LBJ to Senator Bernie Sanders, who desired to gut the First Amendment in order to regulate political speech as a matter of “campaign finance,” the question is always the same: Who is permitted to speak? When the New York Times savages Donald Trump in the run-up to an election, that is, in the progressive view, constitutionally protected free speech. When Citizens United, a nonprofit, does the same thing to Hillary Rodham Clinton, the same progressives argue that this represents the baleful influence of “big money” in politics, a species of bribery, in effect. (That is what the 2010 Supreme Court Citizens United case was about: whether a group of citizens has the right to show a film critical of a presidential candidate without the government’s permission.) Citizens United was a nonprofit, while the New York Times is part of a substantial for-profit corporation with economic interests of its own—and a heck of a lot more “big money” at its disposal than some piddly right-wing nonprofit. It is worth remembering that Democratic leader Harry Reid and every Democrat in the Senate voted to gut the First Amendment’s protections for political speech when the Supreme Court ruled against empowering the federal government to censor a film critical of Hillary Rodham Clinton. Vladimir Lenin was correct in his assessment that the only real question in politics is: “Who, whom?” Hamburger argues convincingly that 501(c)(3) is in effect an unconstitutional licensing regime for political speech.
Liberalism enjoys various explicit subsidies for its media outlets, most notably public radio and public television. The giant media corporations enjoy the protection of the First Amendment, while Senators Sanders, Warren, Schumer, etc. would strip those protections from citizens’ associations and grassroots groups that tend, at the moment, to lean conservative. Mayor Eric Garcetti can advertise himself to a captive audience at public expense with his endless loop of self-promotion broadcast between TSA gropenführer directives at LAX, but the local Catholic Church cannot, without facing financial punishment from the federal government, explain to its own parishioners how its teachings on abortion or poverty should be applied to public-policy questions. On truly controversial moral matters, the United States does have an established religion: quietism.
Of course, we must expect that the IRS and its political masters will bring to these questions the same fine nonpartisan approach that its now-retired official Lois Lerner took to tea-party groups, or that Houston’s former Democratic mayor Annise Parker had in mind when she subpoenaed the sermons of local pastors she suspects of being less than all-in with her transgender-rights agenda. The tinpot tyrants always have a loudspeaker or 70 at their disposal. They are in your newspaper, in your car, in your airport—in your head, and their critics must be silenced or suppressed because . . . that part is never made quite clear, except for the laughable insistence that two toilet-paper-and-petrochemical tycoons from Wichita covertly lean on the world’s political levers like a couple of prairie Illuminati while poor old Chuck Schumer sits there, powerless, abject, and put-upon.
Philip Hamburger considers every imaginable legal angle of the particular case of Section 501(c)(3) and its application to churches and other “idealistic organizations.” Every word of it is worth reading. But what is in the background is worth keeping in mind, too: Questions of culture and questions of state that, if current trends are left unchecked, threaten to reduce the scope and richness of democratic discourse in deeply illiberal ways. The First Amendment is not enough, and it never has been.