Jihad for
Journalists
by Adam Rothstein
Wartime always brings conflicts between
national security and individual rights, but it is not usually journalists
who in the name of security lead the charge against religious freedom.
That’s what happened in the case of Sultaana Freeman, a Florida Muslim who
filed suit for the right to keep a photo of herself wearing a veil on her
driver’s license.
The story began in
January, 2002, but its roots lie in the fall of 2001, when the Florida
Department of Highway Safety and Motor Vehicles undertook a general review
of its driver’s license system because a number of 9/11 hijackers had
obtained valid Florida licenses. The veil issue was first raised in the
media in a Miami Herald article on November 23, 2001 entitled,
“Tighter Security May Mean More Strict Driver’s License Rules.”
Freeman, an American
convert to Islam, wears a niqab: a veil that hides all of the head
and face, revealing only her eyes. When she moved to Florida in early 2001
she applied for and received a driver’s license with a picture of her
wearing it, just like her previous license in Illinois.
Florida recalled the
license in December, citing security issues and the necessity of full-face
photographs to identify all drivers. Freeman was ordered either to retake
the photo without her niqab or face having her license revoked. She
refused and the state followed through on its threat. She turned to the
American Civil Liberties Union (ACLU), which on January 17 filed a petition
to have her license reinstated on the grounds that the state had deprived
her of her right to religious free exercise under Florida law.
“I don’t show my face to strangers or unrelated
males,” Freeman declared in a January 30 article in the Orlando Sentinel
by Amy C. Rippel and Pedro Ruz Gutierrez.
After a brief flurry of coverage, the case
disappeared from view for several months awaiting its first day in court.
On June 27, 2002, just
before a hearing on the state’s motion to dismiss, Freeman’s attorney Howard
Marks told the New York Times that veiling was “a fundamental tenet
of her religion and to require her to sacrifice having a driver’s license or
choose between that and her religious belief is a violation not only of
Florida’s Religious Restoration Act but also of the Florida Constitution.”
Passed in the mid 1990s at the behest of a large coalition of religious
actors, including many on the Christian right, this Religious Freedom
Restoration Act (one of many state versions of a Clinton era federal law)
requires that the state demonstrate a compelling interest whenever it
restricts the religious behavior.
According to Jay Vail,
a Florida assistant attorney general, there was just such a compelling
interest in this case. “Florida law is unequivocal that a photo ID is
required,” Vail said July 30 on the National Public Radio show All Things
Considered. “It’s very plain in the law.” He also told United Press
International that, “when there is a matter of common interest that promotes
public safety, then we must yield on our right to free exercise to the
extent that it’s necessary to secure that public safety interest.”
On May 27 of this year,
the suit went to trial before Florida Circuit Judge Janet C. Thorpe amidst a
full-throated media frenzy. On June 6, Thorpe ruled that while Freeman’s
religious belief was sincere, Florida’s demand that she lift the veil did
“not constitute a ‘substantial burden’ on her right to exercise her
religion.” The state’s need to identify drivers outweighed her need to cover
her face, the judge said.
In finding that Freeman
was “motivated by a sincerely held religious belief to remain veiled.”
Thorpe evaluated her rights claims carefully and respectfully. The same
cannot be said for most journalistic analysis. While news stories usually
recounted the legal arguments in a straightforward way, editorial writers,
columnists, and TV pundits vied with one another to minimize the complexity
of the legal arguments and to demean Freeman’s religious beliefs and
stigmatize Muslims.
Michael Ramirez’s May
29 cartoon in the Los Angeles Times portrayed the driver’s licenses
of Freeman and her lawyer, listing her address as “Silly Lawsuit Way” and
the lawyer’s name as “Bunch O. Clowns.”
“The nuts and bolts of
this case have nothing to do with Ms. Freeman’s right to worship, freely or
diversely, and everything to do with her responsibility to drive lawfully,”
Washington Times columnist Diana West wrote May 30. “On the highway,
she is a driver first, not a Muslim.” West went on to insinuate that denying
Ms. Freeman the right to drive altogether might keep her from becoming a
suicide bomber.
On May 31 the
Chattanooga Times Free Press’s Steve Barrett compared Freeman to
“a member of the Ku Klux Klan insisting that his driver’s license photo be
taken while he wore a Klan hood that hid his face.” In her June 15 column,
Susan Martin of the St. Petersburg Times dismissed Freeman as “a
misguided individual embracing an extreme form of Islam.”
If editorial writers
were less likely to trivialize Islam, they were equally cavalier about legal
precedent and just as dismissive of Freeman’s right to sue. “Score one for
common sense,” The Dallas Morning News declared June 10. “Driving is
a privilege, not a right. ”
Through the entire
debate, journalists seemed unable to grasp that there has been a great deal
of litigation over driver’s licenses, and that states have granted many
exemptions to those who don’t want photographs on their licenses.
Three times since 1978,
different state supreme courts have issued decisions supporting plaintiffs
who didn’t want photographs on their licenses at all (Bureau of Motor
Vehicles v. Pentecostal House of Prayer (1978, Indiana), Quaring v.
Peterson (1984, Nebraska), and Dennis v. Charnes (1984,
Colorado).
In each case, the
courts directed the state to provide exemptions for those citizens who
objected to having their pictures taken on religious grounds. All three
cases involved Pentecostal Christians, some of whom regard it as religiously
impermissible to subject themselves to photography.
Fourteen states
(Arkansas, California, Idaho, Indiana, Iowa, Kansas, Louisiana, Minnesota,
Missouri, North Carolina, Oregon, South Carolina, Vermont, and Wisconsin)
have rules providing an exemption from photo requirements when a licensee’s
religious precepts do not allow him or her to be photographed. Judicial
decisions in other states, including Colorado and Nebraska, require such an
exemption. The ACLU pointed this out in interviews and during the trial
itself, and Judge Thorpe’s ruling acknowledged as much.
But the media weren’t
interested. Among many thundering editorials, the Herald-Sun of
Durham, North Carolina, the Herald of Rock Hill, South Carolina, and
the Denver Post commended Florida for lifting Freeman’s license
without mentioning that their own states require alternate forms of driver’s
licensing when religious objections are made.
The worst offenders
were the hosts of cable news talk shows. Even when they interviewed legal
experts, they usually cut short discussions of the legal landscape in order
to move on to their own misconceptions.
“Driving is a privilege
not a right,” pronounced Chris Matthews on May 29, host of Hardball
MSNBC, as he cut off Howard Simon, executive director of the Florida ACLU,
who was attempting to explain that, legally, it’s not that simple. In her
decision Judge Thorpe cited the U.S. Supreme Court’s 1963 Sherbert v.
Verner decision, which held that the distinction between a right and a
privilege does not matter when the privilege is part of “normal life
activities” like driving.
On June 20 civil
liberties attorney Chris Murray discovered the futility of attempting to
confound Fox News Network’s Bill O’Reilly with mere facts. O’Reilly brushed
off Murray’s attempt to correct the “driving as a privilege” interpretation,
and ignored Thorpe’s ruling that it was “immaterial whether Plaintiff is in
the majority or minority of any given sect of practicing Muslims.” Instead,
O’Reilly cited as relevant a UCLA law professor’s statement that there is no
Islamic law prohibiting believers from being photographed.
Indignation drove
almost all the very emotional opining on Freeman’s lawsuit, which was
neither outrageous nor even unusual. Aside from a few news stories,
journalists were unwilling to acknowledge that exceptions to mandatory
photograph requirements are commonly granted in the United States (although
not, perhaps, in Florida). Ignoring the legal realities, they preferred to
shout down Freeman’s attempt to exercise her religion as “extremist,”
“frivolous,” “foolishness,” and above all, not worth a court’s time.
On CNN’s
“Attorney’s at Law” show June 1, Lisa Bloom of Court TV asked plaintively,
“[D]on’t the Muslims have the same rights as Jews, for example, who have the
right to wear a yarmulke in the military? Nuns to wear a habit? Replied CNN
contributor Michael Smerconish: “They did up until September 10, and then
all of a sudden, everything changed.”
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