The New York Times - USA (2020-10-10)

THE NEW YORK TIMES OP-EDSATURDAY, OCTOBER 10, 2020 Y A25

G

OV. ANDREW CUOMO hasim-
posed new restrictions on busi-
nesses, mass gatherings and
places of worship in towns and
New York City neighborhoods with high
rates of coronavirus infections — some of
which also have large populations of Or-
thodox and Hasidic Jews. An Orthodox
advocacy group, Agudath Israel of Amer-
ica, has filed a federal lawsuit against the
regulations on the grounds that they vio-
late the right to free exercise of religion.
I have devoted much of my career to
protecting the free exercise of religion. It
is a rare thing for me to side with a govern-
ment that seeks to restrict anyone’s reli-
gious practices. But this time, the govern-
ment is on stronger ground.
Few constitutional rights are absolute.
Free speech can be censored in extreme
cases, as when it incites imminent vio-
lence. The right to freely exercise religion
includes the right to take religiously moti-
vated actions — engaging in worship and
rituals and following moral rules. Very oc-
casionally, such actions do serious harm.
They cannot be absolutely protected.
No one reasonably believes that free ex-
ercise of religion protects a right to con-
duct human sacrifice. Faith-healing par-
ents are prosecuted when they withhold
medical care from a child and the child
dies. There is no constitutional right to
refuse vaccinations for religious reasons.
With respect to both vaccinations and
withholding medical care, legislatures
have enacted protections for religious ob-
jectors. But no court has ever protected
such conduct under the Constitution.
Pandemic restrictions are like these ex-
amples. Covid-19 kills some and perma-
nently injures others; the threat to human
life is real and immediate. Those who flout
the rules endanger everyone around
them, and this is sufficient reason for reg-
ulating even a worship service.
Whether a particular regulation is justi-
fied depends on its facts. How widespread
is the virus in these neighborhoods? Do
the regulated zones closely correspond to
places where the infection rate is signifi-
cantly higher? What regulation is actually
needed to save lives?
The governor should have to prove his
factual claims in the Agudath Israel law-
suit. But assuming that he has the facts
approximately right, then the new regula-
tions are mostly justified.
Under the Supreme Court’s interpreta-
tion, the right to free exercise of religion is
a special form of protection against dis-
crimination. Religious exercise can be
regulated only if it falls under generally
applicable rules. If a restriction has secu-
lar exceptions, it must also have religious

exceptions. These requirements are a
challenge to governments writing Covid
rules, which must be deployed quickly,
adapted to rapidly changing conditions
and applied to a vast array of activities.
Lawyers for religious groups objecting
to restrictions can focus on any arguably
analogous secular activity that is regu-
lated less intensively than religious activi-
ty. But the secular activities comparable
to worship services are not retail stores,
where few customers linger, but movie
theaters, concert halls and other places
where people gather in significant num-
bers and remain for long periods.
Nevada had trouble explaining why
churches were more tightly regulated
than casinos, another place where people
come and stay for hours at a time. But in a
5-to-4 vote this summer, the Supreme
Court refused to interfere even with Neva-
da’s regulation, and this decision may im-
ply an unusual degree of judicial defer-
ence in the face of medical emergency.
So Governor Cuomo has wide discre-
tion, but he does need to make sure that
any rules are truly nondiscriminatory.
And it’s unclear whether New York’s new
rules are.
The governor’s website says that the
rules prohibit all mass gatherings in red
zones. There is no discrimination in that.
But the actual executive order applies
only to “nonessential gatherings of any
size.” What gatherings are “essential” is
not defined. That’s a problem.
As compared with a total prohibition,
houses of worship in red zones benefit
from an exception — they are limited to 25
percent of capacity or 10 people, but at
least they can meet. In orange and yellow
zones, houses of worship can admit larger
numbers than other types of gatherings.
But some of these other gatherings can
claim to be essential, and houses of wor-
ship, it seems, cannot. This is a form of dis-
crimination that would normally require
compelling justification.
In yellow zones, schools and restau-
rants can open without capacity limits;
houses of worship are restricted to 50 per-
cent of capacity. People linger in restau-
rants, and students stay in school all day;
it is hard to see how the governor can de-
fend these distinctions.
The governor must define, and try to
defend, the exception for “essential” gath-
erings. And he will struggle to rationalize
the unequal treatment of schools, restau-
rants and houses of worship in yellow
zones.
Put briefly, nondiscriminatory rules to
protect human life can be applied to the
exercise of religion. But the rules must re-
ally be nondiscriminatory. 0

Religious

Practice in

A Pandemic

DOUGLAS LAYCOCKis a law professor at
the University of Virginia.

Douglas Laycock

There are good reasons to

regulate worship services.

T

HE other day, my 7-year-old,

having gotten wind of President

Trump’s Covid-19 diagnosis,

asked me point blank, “Mommy,

are you glad that Trump got the corona-

virus?”

I am a moral philosopher, and yet I had

a hard time coming up with an answer.

The question demands we grapple not

only with the moral meaning of the presi-

dent’s illness but also with our complex

and contested reactions to it. To be clear,

I am not debating whether it is morally

wrong to wish for the president’s death.

It is wrong. Full stop. Nevertheless, now

that Mr. Trump has been declared

healthy enough to return to work, I think

it is important that we assess the moral

significance of the positive reactions his

run-in with Covid-19 has produced.

Mr. Trump’s diagnosis generated an

immediate torrent of glee, gloating and

schadenfreude on social media. It was

followed by an equally quick and fero-

cious attempt to tamp it down. Joe Biden

and Barack Obama, among other Demo-

cratic politicians, offered well wishes for

the president and his wife, while left-

leaning columnists rushed to wish them

a speedy recovery. Many went on to ad-

monish those rejoicing in the president’s

misfortune, suggesting that such appar-

ent meanspiritedness is but one more

symptom of the moral rot that has come

to consume our political culture.

While I agree that the gloating over

Mr. Trump’s illness is morally concern-

ing, I also find it fair to ask whether cer-

tain less celebratory but still positive re-

actions to his disease are entirely blame-

worthy and without moral merit.

It is generally accepted that Mr.

Trump’s mendacious and reckless atti-

tude toward the coronavirus, including

his contempt for his government’s own

public health guidelines, has helped lead

indirectly but predictably to the deaths of

hundreds of thousands of Americans.

This is not to mention the individuals he

directly and perhaps knowingly endan-

gered once he had learned of his own di-

agnosis. In light of these catastrophic

misdeeds, was it morally wrong to want

Mr. Trump to suffer the consequences of

his own callous incaution?

Ambivalent reactions to President

Trump’s medical condition become more

understandable when we appreciate that

valid moral principles are often in ten-

sion with one another and can pull us in

different directions. Condemning the

pleasure that his misfortune has

produced is certainly correct from one

moral perspective, but there are also val-

id moral reasons to regard his illness as a

potentially positive thing. Judging the

moral meaning of Mr. Trump’s bout with

Covid-19 — and our reactions to it — is no

easy task.

The same bedrock moral principles —

that life is sacred, that all people deserve

to be treated with dignity and respect —

make it wrong both to wantonly endan-

ger others and to wish suffering and

death upon any individual. We appeal to

these principles in objecting to the glee

and schadenfreude that engulfed Twitter

in the wake of Mr. Trump’s diagnosis.

From this perspective, it does not matter

how morally corrupt he may be, nor the

harms he has inflicted on others, wit-

tingly or unwittingly, directly or indi-

rectly.

This is all beside the point when we

consider that the president is a person

with dignity or, as columnists more often

put it, “a man with a family.” According to

this line of thought, we should not wish to

see Mr. Trump fighting for his life on a

ventilator, no matter what he has done,

and we are right to be concerned by atti-

tudes that seem to contravene this prin-

ciple.

But while it is true that life is sacred,

and we must honor the dignity of all per-

sons, including Mr. Trump, society also

has a legitimate moral interest in seeing

wrongdoers face consequences for their

actions. The sense that justice requires

punishment for wrongs runs deep and is

not the same as a mere thirst for revenge

or a desire to get even.

On the contrary, punishment plays an

important role in any healthy moral

ecosystem. When the moral order has

been ruptured, punishment for wrongs

helps to repair tears to the social fabric

and to reinforce the validity of the moral

expectations that were violated. Imagin-

ing Mr. Trump’s illness as a metaphorical

punishment for his misdeeds helps to

satisfy at the level of fantasy a legitimate

need to see justice done. Because Mr.

Trump contributed to the illness and

death of so many Americans, it is under-

standable that many feel satisfied in see-

ing him forced to contend with a harm to

which he has exposed so many others.

The moral complexity becomes great-

er still when we consider that from a

purely consequentialist point of view,

there are reasons to view Mr. Trump’s

potential incapacity as the best moral

outcome. Most famously associated with

the utilitarianism of Jeremy Bentham

and John Stuart Mill, consequentialism

is the philosophical position that affirms

that what is morally right is whatever

makes the world best in the future. If one

believes that Mr. Trump has unleashed a

tremendous amount of suffering and

death through his mismanagement of

the coronavirus pandemic and that he is

likely to continue causing harm on this

scale, a consequentialist argument can

be made that his speedy recovery from

Covid-19 would not be the best moral out-

come.

The consequentialist argument, while

repugnant from the perspective of hu-

man dignity, tells us that a world in which

Mr. Trump is unable to commit harm

would be morally better than a world in

which he continues to harm freely. This

philosophical approach to weighing mor-

al outcomes conflicts with the principle

of individual human dignity and offers no

easy guideline for reconciling these pow-

erful yet opposing ways of thinking

about what is best.

So where does this leave us?

Can those who rejoice in Mr. Trump’s

misfortune claim the moral high

ground? Not so fast. Those who regard

Mr. Trump as the enemy may simply

wish to see him suffer. Such a wish may

be entirely untethered from concerns

about justice or the consequentialist

moral appeal of a world where he is too ill

to campaign effectively. For these rea-

sons we are right to be skeptical of their

reaction. Moreover, the principle of hu-

man dignity tells us that even the presi-

dent, for all the wrong he has done, de-

serves our good will.

Here’s how I explained the moral

quandary to my 7-year-old: I am sad that

Mr. Trump got sick because in general

suffering is bad, and I don’t want anyone

to suffer, but on the other hand I think he

should suffer consequences for the harm

he has done. This answer seemed satis-

fying enough at the time, but it left out an

important distinction.

What I did not try to explain is that the

punishment that Mr. Trump’s bout of

Covid-19 represents is merely symbolic,

a stand-in for the real punishment he de-

serves, which is necessarily social in

character. Mr. Trump deserves to be pun-

ished at the ballot box and to be held ac-

countable for any possible criminal

wrongdoing in a court of law.

I hope that after experiencing first-

hand the illness that has killed so many

people and devastated the lives of so

many others, the president will think bet-

ter of his cavalier attitude. It seems, so

far, that he hasn’t. Nevertheless, I hope

Mr. Trump returns to good health. I hope

this both because Donald Trump is a hu-

man being with dignity, and also because

the world needs this president to get his

real just deserts. 0

No Joy in the President’s Illness

SASHA MUDDis an assistant professor of

philosophy at Pontificia Universidad

Católica de Chile.

Sasha Mudd

Wishing harm on others

may come naturally, but

that doesn’t make it right.

ANNA MONEYMAKER FOR THE NEW YORK TIMES

A

T LEAST 15 million Americans ev-

ery week tune in to one of the

top 15 talk radio programs.

They are not monolithically

conservative, but they are overwhelm-

ingly so. A dozen of the top 15 shows fea-

ture conservative or libertarian hosts —

with devoted followings like Rush Lim-

baugh’s “Dittoheads” or Michael Sav-

age’s “Savage Nation” — and only one

leans left.

Talk radio may face an aging audience,

a decline in ad revenue and competition

from new mass media forms like pod-

casts, but there are still millions of Amer-

icans whose politics are shaped by what

they listen to on talk radio all day, every

day. Fox News gets more of the attention

for shaping conservative opinion and for

its influence on the Trump administra-

tion, but we shouldn’t overlook the power

of conservative talk radio.

The conservatism of talk radio only

partly overlaps with institutional con-

servatism, that of right-wing Washing-

ton think tanks, magazines and the Re-

publican Party itself. By the early 2000s,

it had embraced a version of conserva-

tism that is less focused on free markets

and small government and more focused

on ethnonationalism and populism. It is,

in short, the core of Trumpism — now

and in the future, with or without a Presi-

dent Trump.

Talk radio’s power is rooted in the

sheer volume of content being produced

each week. The typical major talk radio

show is produced every weekday and

runs three hours, so just the top 15 shows

are putting out around 45 hours of con-

tent every day. Even setting aside hun-

dreds of additional local shows, the dedi-

cated fan can listen to nothing but con-

servative talk radio all day, every day of

the week, and never catch up.

Yet talk radio still somehow manages

to fly below the national media radar. In

large part, that is because media con-

sumption pattens are segregated by

class. If you visit a carpentry shop or fac-

tory floor, or hitch a ride with a long-haul

truck driver, odds are that talk radio is a

fixture of the aural landscape. But many

white-collar workers, journalists includ-

ed, struggle to understand the reach of

talk radio because they don’t listen to it,

and don’t know anyone who does.

Moreover, anyone who wants to make

an effort to understand talk radio runs

into a barrier immediately: Because of

the ocean of content, one must listen to it

at great length, a daunting task for any-

one not already sympathetic with a

host’s conservative views. The time com-

mitment suggests the depth of listener

loyalty.

Each show has its own long-running

inside jokes and references, a kind of lin-

guistic shorthand that unites fans and re-

pels outside examination. And since

shows have begun to regularly publish

online transcripts only in the past decade

or so, journalists and scholars have

found it hard to wade through all the con-

tent.

As Jim Derych, the author of “Confes-

sions of a Former Dittohead,” put it, Rush

Limbaugh “makes you feel like an insid-

er — like you know what’s going on politi-

cally, and everyone else is an idiot.”

There is power in that feeling, the propo-

sition that you and the radio elect have

been awakened to a hidden truth about

the real way the world works while the

rest of the American “sheeple” slumber.

Like single-issue voters, talk radio

fans are able to exercise outsize influ-

ence on the political landscape by the in-

tensity of their ideological commitment.

Political scientists have long noted the

way in which single-issue voters can

punch above their numerical weight. An

organization like the National Rifle Asso-

ciation, which says it has about five mil-

lion members, has been able to outlobby

gun control supporters despite broad

(but diffuse) public backing for at least

incremental gun control measures.

Talk radio listeners make up a group at

least three times as large as the N.R.A.

and are just as committed to a particular

vision of America. To take one example,

since the mid-2000s, talk radio listeners

have played a big part in steering Repub-

licans toward the virulent anti-immigra-

tion stance of Mr. Trump. Mr. Limbaugh

once proposed a set of “Limbaugh Laws”

requiring immigrants to speak English,

barring them from holding government

office or having access to government

services, and excluding unskilled work-

ers from the country.

Talk radio is not bounded by physical

space. It can follow listeners wherever

they go, from the car radio while com-

muting to the radio resting on the work-

bench to a radio app on a smartphone. It

has the potential to dominate the con-

struction of a person’s worldview in a

way that other media simply cannot (un-

til, perhaps, the advent of its white-collar

cousin, the podcast).

This was true of conservative radio

long before the current generation of talk

radio hosts emerged in the 1980s. By the

early 1960s, a group of AM radio broad-

casters had built an informal national

syndicated network of hundreds of radio

stations; the largest of the broadcasters,

a fundamentalist preacher in New Jer-

sey named Carl McIntire, reached an es-

timated audience of 20 million listeners a

week (which, for sake of comparison, is

as many as Rush Limbaugh reportedly

hit at his peak four decades later). Amer-

icans could tune in to a station airing con-

servative programming all day, every

day.

By 1963, President John F. Kennedy

was so worried about what an aide called

this “formidable force in American life

today,” which was able to “harass local

school boards, local librarians and local

government bodies,” that he authorized

targeted Internal Revenue Service au-

dits and the use of the Federal Communi-

cations Commission’s Fairness Doctrine

to silence these pesky conservative

broadcasters. The result was the most

successful episode of government cen-

sorship of the last half century.

Conservative broadcasters have

never forgotten it, and it is a key reason

that a conspiracist mind-set has such a

grip on listeners. Since 2003, Rush Lim-

baugh, who got his start working in radio

as a teenager in the mid-1960s, has men-

tioned the Fairness Doctrine on nearly

150 episodes. He credits the rise of talk

radio to the lifting of the Fairness Doc-

trine in 1987 by the Reagan administra-

tion. And he worries that the left could at

any moment use a revived Fairness Doc-

trine to silence conservative radio. As

Mr. Limbaugh put it in January, “They’ve

been trying to nullify or negate me” for

three decades.

This suspicion that elite institutions —

the media, universities, government, Big

Tech — are run by hostile liberal gate-

keepers seeking to silence conservative

voices continues to fuel right-wing anxi-

ety. It also helps explain conservative

support for Mr. Trump, who can be ac-

cused of many things but not of failing to

speak his mind. When you believe that

all politicians lie but that only liberal poli-

ticians rig the game, you’re more likely to

vote for someone who you think will fight

back, even if that person lies along the

way.

Take talk radio’s role in spreading

Covid denialism. At each stage of the

backlash against government recom-

mendations for fighting the pandemic,

talk radio hosts prepared the way for

broader conservative resistance. In-

deed, many of Mr. Trump’s own talking

points about the virus — like comparing

it to the flu and accusing China of weap-

onizing the virus — echoed ideas already

spreading on talk radio shows.

Conservative talk radio will march to

Mr. Trump’s drum, but no matter what

happens in November, it will also outlast

him. Talk radio emits much too powerful

a signal to fade silently into the ether. 0

Talk Radio Is at the Heart of Trumpism

PAUL MATZKO, the editor for tech and

innovation at Libertarianism.org, is the

author of “The Radio Right: How a Band

of Broadcasters Took On the Federal

Government and Built the Modern Con-

servative Movement.”

Paul Matzko

The medium is turning

millions of Americans

into conservatives.