On June 30th, five male justices held that "closely held" for-profit secular corporations like Hobby Lobby are exempt under the Religious Freedom Restoration Act (RFRA) from the so-called "contraception mandate." Right-wing media predictably cheered and mocked women's access to contraception, even though the decision was based on a series of myths.
Here are eight women explaining why the Hobby Lobby decision is dead wrong:
Right-wing media are celebrating now that the conservative justices of the Supreme Court have issued their unprecedented ruling in Burwell v. Hobby Lobby, with the Court adopting a number of conservative myths in the decision that allows sex discrimination in the name of corporate religion.
On June 30, the conservative majority of the Supreme Court -- five men and no women -- held that "closely held" for-profit secular corporations like Hobby Lobby are exempt under the Religious Freedom Restoration Act (RFRA) from the "contraception mandate." This so-called mandate, a provision of the Affordable Care Act (ACA), requires employer-sponsored health insurance to cover comprehensive preventive health care, including birth control. In so holding, the Court's decision in Hobby Lobby gave credence to some of the worst conservative myths that have been steadily advanced by right-wing media.
The fact that Hobby Lobby likely employs workers who have no moral or religious dispute with contraception didn't seem to be of much concern to outlets like The Wall Street Journal, National Review Online, or Fox News. From the start, NRO framed the case as a David and Goliath-like scenario, with the Green family owners of Hobby Lobby as victims of the federal government -- despite the fact that Hobby Lobby is a massive corporation, owned by billionaires, with hundreds of stores across the country. Fox & Friends host Elisabeth Hasselbeck went so far as to call the contraception mandate evidence of the "moral decay" of the Obama administration's policies. For right-wing media, the religious beliefs of the owners took precedence over those of their female employees. Apparently, the Supreme Court agreed.
The Court attempted to limit its decision to "closely held" corporations like Hobby Lobby, but according to experts, more than 90 percent of corporations are considered to be "closely held." In his majority opinion, Justice Samuel Alito downplayed the significance of the Hobby Lobby decision's expansion of the concept of corporate personhood, writing that "a corporation is simply a form of organization used by human beings to achieve desired ends" and claiming there was nothing radical about extending rights "whether constitutional or statutory" to for-profit secular corporations. His opinion conflated these businesses with non-profits just as right-wing media had urged.
The religious rights of the employees, now held hostage by their employers' moral objections, did not appear to make much of an impact on the Court's conservative majority.
Moreover, wrote Alito, the birth control requirement was not "the least restrictive means" of achieving the "compelling governmental interest" of ensuring no-cost comprehensive preventive health care services for everyone. Instead, said the majority, the government should "assume the cost of providing the contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections," thus shifting the employee-earned benefit of health insurance from a billion-dollar corporation to the general public.
It was enough for Alito that the Greens "sincerely believed" that the contraceptives at issue in the case are "abortifacients" -- echoing right-wing media's constant confusion of the two -- even though they really, really aren't.
The National Rifle Association's media arm issued a video bemoaning that Elliot Rodger, who murdered six during a recent killing spree in California, is referred to by media as a "gunman" or "shooter."
19 people were killed or wounded by Rodger near the campus of UC-Santa Barbara in Isla Vista, California on May 23. Reportedly motivated by a hatred of women, Rodger fatally stabbed three in his apartment before going on a public shooting spree. Of 11 hit by gunfire, three died. Rodger also struck four people with his car, and one person suffered an undetermined injury.
In a June 30 video published on the NRA's "commentators" webpage -- a project that is part of the NRA's efforts to attract a younger and more diverse audience -- NRA News commentator Billy Johnson claimed that media coverage of the killing spree only told "half the story," adding, "Yes, the Santa Barbara murderer had a gun, and yes he killed three people with that gun. But he also killed three people with a knife and injured several others with his car." (Johnson never mentioned those who were wounded by gunfire but survived.)
Undermining their own point, the NRA originally released the video with the title "Santa Barbara Shooting" (as captured by Media Matters below), but has since changed the title to "Santa Barbara Stabber":
Despite the fact that the Supreme Court struck down Massachusetts' abortion clinic buffer zone law, the Wall Street Journal editorial board complained that the Court didn't go further to disallow "other restrictions on abortion protests," inaccurately describing the majority opinion in the process.
On June 26, the Court ruled in McCullen v. Coakley that Massachusetts' buffer zone law violated the First Amendment because it was broader than necessary to achieve the Commonwealth's goal of promoting public safety outside of reproductive health clinics, while simultaneously declining to strike down the constitutionality of buffer zones in general. A version of the law was passed in 2000 in response to years of violent and deadly incidents outside of abortion clinics nationally and directed at Massachusetts clinics in particular. The legislature amended the law in 2007 to further help police officers enforce the law by implementing a 35-foot buffer zone around clinic entrances that prohibit anyone not on clinic business -- anti-choice protestors and pro-choice supporters alike -- from entering and remaining. The Court ultimately found that, while buffer zones are not unconstitutional in and of themselves, Massachusetts' law was not narrowly-tailored enough to support the legitimate interest in promoting public safety.
Joining and writing for the four liberal justices on the Court, Roberts limited his decision to the specific facts, and the specific petitioners in McCullen, as he struck down this specific buffer zone law. For Roberts, because the named plaintiff in this case was apparently a peaceful petitioner and not the "aggressive" type of "face-to-face" protestor who created "clashes" at the entrances of the health centers, the law regulated more speech than is allowed under the public safety rationale of constitutional buffer zones. But in a June 26 editorial, the Journal completely ignored the history of violence outside of abortion clinics across the country, and argued that Roberts "missed an opportunity to clean up one of the Court's mistakes" by failing to overturn Hill v. Colorado, a 2000 case that upheld the constitutionality of a different buffer zone law. The editorial went on to argue that the decision in McCullen "leaves too much speech in future jeopardy" because state legislatures are still free to regulate speech outside of clinics within the bounds of the First Amendment. The Journal also inaccurately claimed that Roberts confirmed that the Massachusetts law was "directed at peaceful speakers":
In McCullen v. Coakley, Chief Justice John Roberts writes that the law unconstitutionally restricts access to public sidewalks around abortion clinics in the name of "public safety" without "seriously addressing the problem through alternatives." By regulating public streets, the state directly foreclosed access to places that "developed as venues for the exchange of ideas." Restrictions must be based on misconduct, not directed at peaceful speakers.
So far, so good. The problem is that the Chief's opinion goes on to engage in contortions arguing that the Massachusetts law really wasn't trying to restrict the "content" of speech. That's critical because it means the law isn't subject to strict First Amendment scrutiny. It also means that while this Massachusetts law went too far, other restrictions on abortion protests might be allowable.
The fascinating question is why the Chief Justice refused to follow the logic of his own free-speech jurisprudence and overturn Hill v. Colorado. Perhaps he figured he would lose the four liberal Justices and thus the authority of a unanimous Court. Or perhaps he has been chastened by all of the liberal media critics who say he's too eager to overturn precedents.
The reality is that he's not eager enough, and thus the Court ends up with too many of these halfway decisions that reach the right outcome for what are often the wrong reasons. The First Amendment needs a more stalwart defender in the Chief Justice's chair.
Houston media outlets have failed to hold anti-LGBT activists accountable for the misinformation they have spread about the city's Equal Rights Ordinance (HERO), currently the focus of a repeal effort. Media outlets have allowed myths about the ordinance's protections for transgender people to go unchallenged and have disproportionately cited anti-LGBT groups and advocates in their reporting on the measure.
Fox News host Martha MacCallum described the pending Hobby Lobby case -- a challenge to the Affordable Care Act's requirement that all employer-sponsored health insurance cover contraceptives as part of preventive services -- by repeating four right-wing media myths in the span of 17 seconds. MacCallum adopted the false narrative of the religious owners of the for-profit, secular chain store and its supporters during the June 25 edition of America's Newsroom:
1. "The Hobby Lobby case, which challenges the Obamacare conception mandate that requires ..."
As political science professor Scott Lemieux explained, "there is no 'contraception mandate.' Hobby Lobby is not legally required to compensate its employees with health insurance at all. ... What is erroneously described as a 'mandate' simply means that if corporations choose to take advantage of the tax benefits for compensating employees in health insurance rather than wages, the insurance has to meet minimum coverage standards." In other words, Hobby Lobby can avoid contraception coverage by providing no health insurance at all -- but it may not hold its employees hostage by sponsoring health insurance policies that are not complaint with the ACA.
2. "... that employers provide ..."
As Georgetown Law professor Marty Lederman has written, it would be the federal government that requires the insurance companies -- not Hobby Lobby -- to meet the minimum coverage standards that include comprehensive preventive services, including birth control. According to Lederman, "Once the HHS Rule goes into effect, it would not be the Greens who 'directed' the Hobby Lobby ... insurance plans, in any real sense, to cover contraception: That would, instead, be a legal requirement imposed by the government -- and it's a requirement that applies to any and all such plans throughout the nation, whether sponsored by an employer or not."
3. "... free access to conception methods ..."
It turns out that so-called "free" birth control isn't actually free. In fact, "it is misleading -- and politically dangerous to say so," according to Jodi Jacobson, editor-in-chief of RH Reality Check, because "if you have insurance, you pay for it, either by virtue of your labor or out of your own pocket, or, depending on the situation, both. And under the ACA, it is now mandated that your insurance plan cover certain benefits without a co-pay. This does not make them 'free.' It means that you are paying for that service as part of your premium. You earned it, you paid for it, it is yours. If you pay for it, you deserve to get it."
4. "... as part of a comprehensive Obamacare health policy, includ[ed] in that would be some drugs which could trigger abortion."
Despite the fact that Hobby Lobby "sincerely believes" that some contraceptives result in the termination of a pregnancy, the science simply does not support this claim. According to The New York Times, "It turns out that the politically charged debate over morning-after pills and abortion ... is probably rooted in outdated or incorrect scientific guesses about how the pills work. Because they block creation of fertilized eggs, they would not meet abortion opponents' definition of abortion-inducing drugs."
The Wall Street Journal is criticizing the Supreme Court's recent securities class action decision that refused to overrule 25 years of precedent because of the "mischief" of successful investor class actions, even though the Court adopted a compromise that the Journal had previously advocated for.
On June 23, the Supreme Court ruled in Halliburton v. Erica P. John Fund that investors who had been harmed by corporate fraud could continue to rely on the "fraud on the market" theory to pursue class action lawsuits. That theory, first outlined in Basic v. Levinson in 1988, recognizes that in a relatively efficient regulated market, publicly available information about a corporation will be reflected in its stock price, including fraudulent statements or disclosures made by corporate officers. "Fraud on the market" allows a subsequent lawsuit on the presumption that when making investment decisions, shareholders are relying on the assurance that the stock price is not distorted by a corporation's fraud.
As the Journal knew, Halliburton had the potential to gut this well-established precedent for investor class actions, which allow institutional investors -- like union pension funds -- to protect their investments from fraud, because it would be nearly impossible to litigate individualized reliance on the fraudulent information before buying or selling stock. Often, these misrepresentations are buried in thousands of pages of financial disclosure documents, but nevertheless are incorporated into and impact the overall price of a company's stock. Rather than accept Halliburton's invitation to reject both its own case law and subsequent federal legislation that affirmed the "fraud on the market" theory, the Court instead adopted a version of a "midway compromise" discussed at oral arguments. The Court held that corporate defendants can now introduce studies at the class certification stage (before the class action commences) that show that the price of the stock was not affected by material misstatements made by corporate officers, evidence that has typically been evaluated later at trial.
But the Journal is upset at this turn of events -- even though it had previously lobbied the Court to "require some evidence of price movement resulting from a misstatement before a class is formed," because securities class action lawsuits are supposedly "economically destructive." The Journal is no great fan of class actions in any form, despite the fact they are often the most efficient and economical way for groups of injured people to access justice and obtain legal relief. In its coverage of Halliburton, the editorial board has parroted right-wing myths propagated by the U.S. Chamber of Commerce, calling class actions "frivolous" and not much more than a "windfall" for plaintiffs' lawyers.
Conservatives are trying to smear former Secretary of State Hillary Clinton for her work in 1975 as a court-appointed attorney for an indigent defendant alleged to have raped a 12-year-old girl, a case she detailed in her memoir a decade ago. As Republican lawyers and the American Bar Association have previously noted, such criticisms undermine the American system of justice.
As the current Supreme Court term winds down, a number of highly anticipated cases will be released in the coming week. Here are five of the decisions right-wing media have repeatedly misinformed about, as well as the top myths and facts.
The St. Louis Post-Dispatch, one of the largest newspapers in the Midwest, has dropped George Will's syndicated column, calling the conservative pundit's recent commentary on sexual assault "offensive and inaccurate" and apologizing for its publication.
In a June 7 column, Will disputed evidence that 1 in 5 women on U.S college campuses experience sexual assault, and claimed that efforts to fight what he called "the supposed campus epidemic of rape" have made victimhood a "coveted status." The Post-Dispatch called Will's comments "offensive and inaccurate," and in a June 18 editorial, it announced it would no longer publish Will's syndicated column:
The change has been under consideration for several months, but a column published June 5, in which Mr. Will suggested that sexual assault victims on college campuses enjoy a privileged status, made the decision easier. The column was offensive and inaccurate; we apologize for publishing it.
As Media Matters has reported, Will's column has drawn significant criticism from women's rights activists, writers, and several U.S. senators. Women's rights group UltraViolet launched a petition drive calling for Will's ouster from the Washington Post. National Organization for Women President Terry O'Neill agreed, saying "The Washington Post needs to take a break from his column, they need to dump him," adding that columns like Will's are "actively harmful for the victims of sexual assault."
As the backlash against Will's claims began to heat up, the Washington Post Editorial Page Editor Fred Hiatt defended Will in a statement to Media Matters, saying his comments were "well within the bounds of legitimate debate":
George Will's column was well within the bounds of legitimate debate. I welcomed his contribution, as I welcome the discussion it sparked and the responses, some of which we will be publishing on our pages and website. This is what a good opinion site should do. Rather than urge me to silence a viewpoint they disagree with, I would urge others also to join the debate, and to do so without mischaracterizing the original column.
The Post-Dispatch noted that the move to drop Will's column had "been under consideration for several months," but Will's column on sexual assault "made the decision easier." This isn't surprising, given that Will's contributions to public debate have a problematic history of denying facts. According to Discover Magazine, Will has helped to "muddle our collective scientific literacy" by grossly distorting climate data -- a trend that the Los Angeles Times has similarly dubbed "mystifying." Will has also misrepresented the effects of the Voting Rights Act to claim that it has given "a few government-approved minorities ... an entitlement to public offices" and has come under fire for claiming that President Obama owed his success in the 2012 presidential election to his race.
CNN host S.E. Cupp baselessly suggested that Hillary Clinton's support for a ban on assault weapons is bad politics by promoting the myth that the 1994 Republican takeover of the House of Representatives was fueled by the passage of an assault weapons ban that year.
In fact, political scientists say tax increases and a fight over healthcare reform better explain the Republican takeover. But conservative pundits often incorporate the 1994 assault weapons ban into the media myth that it is politically unwise for politicians to support gun reform and that the National Rifle Association has the ability to use the gun issue to determine election outcomes.
During a June 17 town hall forum on CNN, Clinton expressed support for a ban on assault weapons and high-capacity ammunition magazines, as well as expanded background checks on gun sales. On the gun debate, Clinton added, "we need a more thoughtful conversation, we cannot let a minority of people ... hold a viewpoint that terrorizes the majority of people."
Appearing on CNN's The Situation Room after the town hall discussion, Cupp suggested political danger in Clinton's position, stating, "Democrats really suffered, and Hillary Clinton knows this, Democrats really suffered the last time they enacted an assault weapon ban. There were a lot of Democrats who were thrown out of office the last time that passed."
In a January 17, 2013, US News article headlined "Gun Control Laws Weren't Primary Reason Dems Lost in 1994" political scientists and 1994 election experts Philip Klinkner and Gary Jacobson are quoted arguing that assault weapons ban legislation was only one of several controversial votes leading up to the midterm elections but that a "mythology" was formed around the gun vote. Klinkner and Jacobson instead pinned the electoral success of the Republican Party on the failure of health care reform and tax increases:
While the '94 election proved Americans wanted Democrats out of congressional power (more than 50 Democratic seats were lost), it's less clear if the weapons ban, or any one issue, was the primary reason for their loss.
"This is a mythology that has developed," says Philip Klinkner, who edited a book about the '94 elections. "That narrative stretches things way too far."
The truth, political scientists say, is that it can be attributed to a combination of factors, and the "assault weapons" ban was just one of several controversial votes that led to the loss.
With Democrats in charge of the House, Senate and White House, the 103rd Congress tackled a long, progressive wish list. The White House pressured legislators to take on healthcare reform (unsuccessfully), pass the North American Free Trade Agreement and raise taxes through a deficit reduction act, which was fraught with political land mines for congressional Democrats. None of the policies helped earn legislators points back home among their more conservative constituents.
"The vote for gun control mattered, but the vote for the tax increase and healthcare were more important," says Gary Jacobson, who has done a statistical analysis of what votes affected the outcome of the 1994 election.
According to Jacobson's analysis, the 1994 election results were largely due to a political realignment, with voters no longer splitting their tickets and instead voting for Republican congressional challengers in districts in which President Clinton had lost in 1992. Jacobson concluded, "Republicans won the House in 1994 because an unusually large number of districts voted locally as they had been voting nationally."
The Wall Street Journal is celebrating a recent Supreme Court ruling that will allow an anti-choice activist group to challenge the constitutionality of an Ohio law that bans false statements in election campaigns, a state statute that is opposed by free speech advocates across the political spectrum. But the WSJ went on to erroneously argue that the false statement at issue in the case -- that the Affordable Care Act (ACA) funds abortions -- is actually true, because contraceptives are actually "abortifacients."
On June 16, the Supreme Court unanimously ruled that the group, Susan B. Anthony List, had standing to sue over the Ohio statute. Susan B. Anthony List, which is "dedicated to electing candidates and pursuing policies that will reduce and ultimately end abortion," ran into trouble when it tried to take out a billboard calling Ohio congressman Steve Driehaus' vote for the ACA a vote for "taxpayer funded abortion." Driehaus filed a complaint against Susan B. Anthony under the Ohio statute, but ultimately withdrew it after he lost his election. Nonetheless, the organization challenged the constitutionality of the false statement law, claiming that it violated their First Amendment rights.
The Court's decision did not address the merits of Susan B. Anthony's claim. But that didn't stop some right-wing media outlets from calling the ruling "a big win ... for the pro-life movement." The Wall Street Journal evidently agreed with this analysis and added that the decision is "a rebuke to politicians who don't want to be criticized" in a June 16 editorial. The WSJ went on to argue that the billboard at issue had been "vindicated" because the ACA forces "religious groups to finance abortifacents."
From the editorial:
Monday's decision concerned whether Susan B. Anthony was able to sue. The Sixth Circuit Court of Appeals had said it could not because Mr. Driehaus withdrew his complaint after he lost. But Justice Clarence Thomas wrote for the Court that this decision improperly minimized the burden on groups whose speech is chilled for fear that they could be sanctioned or sued. Lower courts will now revisit the constitutional challenge.
As it happens, Susan B. Anthony's billboard claim has been vindicated by the Obama Administration's rule forcing religious groups to finance abortifacients in their health-care policies for employees. In a democracy, voters rather than a priesthood of regulators are obliged to sort out the truth or falsity of political claims. Congrats to Susan B. Anthony, and perhaps the Sixth Circuit will seek out some remedial First Amendment education.
Noir -- a weekly program aired by the National Rifle Association as part of its efforts to reach a younger audience -- has run two segments that fetishize an assault weapon as an attractive woman.
Over the past year the NRA has launched a number of initiatives to engage with women, minorities, and younger Americans. Noir, a Sunday web series hosted by popular gun blogger turned NRA News commentator Colion Noir, is packaged for a Millennial audience, although the show has been widely mocked by critics as a phony and out-of-touch attempt at messaging.
A segment during the June 15 edition of Noir opened with a black-and-white scene of a stylishly-dressed woman standing in an alley. Doing voice-over work, Noir appeared to describe the woman, ranging from her clothing ("Her Jimmy Choo's can't be comfortable, but you'd never know it"), to her intellect ("Chess, yeah it's a men's game, but when she plays, men pay"), to her actions ("Flirts more than you can handle too. She's the kind to tell the bartender how to make her drink").
In the final shot, the woman is seen holding a Heckler & Koch MR556 assault weapon and Noir reveals he was talking about the firearm the whole time:
NOIR: Why is she alone on this dark street? On this cold night? You care, but she doesn't. Her Jimmy Choo's can't be comfortable, but you'd never know it. Unaffected elegance. Too cool elegance. Not for you elegance, you say. There's got to be something wrong with her; that attitude, high maintenance, hiding something. She's taller than you can handle. Flirts more than you can handle too. She's the kind to tell the bartender how to make her drink. And Chess, yeah it's a men's game, but when she plays, men pay. Say you don't like her, until she looks your way. She's not easy and she's not flawless. But she's never wasted her time thinking about it. She is the HK MR556.
From the June 13 edition of Courtside Entertainment Group's The Laura Ingraham Show:
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A new Delaware law that would restore the rights of stockholders to bring class action lawsuits without fear of having to pay legal costs if they don't win every single part of their legal claim is being slammed by the U.S. Chamber of Commerce and its affiliate, the Institute for Legal Reform (ILR). But even right-wing media outlet Forbes isn't sold on their arguments.
In May, the Delaware Supreme Court surprisingly ruled in ATP Tour v. Deutscher Tennis Bund that corporations were allowed to unilaterally add bylaws forcing the loser in shareholder litigation to pay all the associated legal fees. These sorts of "loser pays" provisions are atypical in the U.S. but have been promoted by conservative organizations like the Chamber and the ILR under the guise of ending "frivolous lawsuits." Ultimately, though, such provisions have the effect of deterring or outright blocking many meritorious class action lawsuits brought by victims of corporate malfeasance.
In response to the state supreme court's holding in ATP Tour, Delaware legislators have proposed SB 236, a bill that would reinstate the normal prohibition on "loser pays" bylaws. The ILR is already registering its vocal opposition to the bill, arguing that it will leave corporations vulnerable to "abusive litigation."
Usually, right-wing media can be counted on to recycle the Chamber and ILR's pro-business talking points, in particular The Wall Street Journal editorial board. This time, however, even Forbes' Daniel Fisher questioned ILR's arguments. According to Fisher, who has supported anti-consumer provisions like forced arbitration clauses in the past, "opponents of SB 236 may be pushing too far" by promoting a loser pays system:
The bill's sponsor, Democratic Sen. Bryan Townsend, said he will set the bill aside for a while amid vocal opposition by the U.S. Chamber Institute for Legal Reform, according to the Wilmington News Journal.
The bill seems to restore the status quo by affirming the limited liability nature of corporations, where shareholders can only lose money to the extent of their investment. But the ILR said the proposed law -- passed, it noted, on "an extraordinarily expedited basis" -- would reverse a decision that "gives corporations a way to protect their shareholders" against the costs of "abusive litigation."
By pushing to retain the option implied by the ATP Tour decision, opponents of SB 236 may be pushing too far. Delaware courts have granted them ample tools to deal with shareholder litigation and chipping away at limited liability might be a cure that is worse than the disease.
Fisher's skepticism of ILR's issues with the bill are well-founded. According to Paul Bland, executive director of Public Justice, the Delaware Supreme Court's decision not only runs afoul of the basic concepts of contract law by allowing corporations to unilaterally change the rules of the game on their investors, it makes it "far easier for corporations to insulate themselves from accountability if they cheat shareholders or break the law. By contrast, the vast majority of courts in the U.S. disapprove of this kind of loser-pays provision."
It's not just states like Delaware that are threatening the viability of investor class action lawsuits, one of the best ways for defrauded stakeholders to get legal relief from the corporation who harmed them. Any day now, the Supreme Court will issue its decision in Halliburton v. Erica P. John Fund, a case that could make it nearly impossible for investors who have been the victims of corporate fraud to join together as a class and sue. Watch Bland explain in two minutes how Halliburton could be yet another in a long line of pro-business decisions from the conservative majority at the Court: