An Editorial Exception?

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The New York Sun

Well, that didn’t take long. It was only in January that the Supreme Court, in one of the greatest First Amendment cases in American history, declared that the employment discrimination laws couldn’t be brought against a church over the firing of a minister, even in the face of allegations that it fired the minister for threating to file an employment discrimination claim. “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” wrote the Chief Justice of America, John Roberts, for a unanimous court. “But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”

Well, if churches must be free to choose those who will guide them, what about newspapers? They are covered, after all, by the same First Amendment that prohibits the Congress from interfering with religion. This is the question that hangs over the case that is being levied against the New York Post by an editor it fired in the dispute over the infamous editorial cartoon that was published in 2009 and that, as Reuters put it the other day, “appeared to liken President Barack Obama to a chimpanzee.” Our instinct is that the editor who objected so vociferously, Sandra Guzman, had the better part of judgment in respect of whether the cartoon was offensive. Rupert Murdoch himself eventually issued an apology. It’s another question, however, whether the newspaper broke the employment discrimination laws when it fired Ms. Guzman, who says that her firing was in retaliation for her complaints.

The case is in the news because the other day a magistrate judge in federal court in New York ordered the editor of the Post, Col Allan, to answer questions that, according to the Reuters dispatch, the Post asserts would let Ms. Guzman “breach ‘the heart of the editorial process.’” The Post is appealing the order to a full federal district judge. How far it will press the issue, we don’t know. But we wish the Post luck. When the Supreme Court handed down its ruling in the Hosanna-Tabor case, the phrase it used to describe the rights of the church was a “ministerial exception,” as in there’s a “ministerial exception” to the employment discrimination laws. Our question is why the exception should be limited to ministers. The First Amendment that protects the churches is the same one that protects the newspapers, who need to be unfettered in choosing who — to paraphrase the Supreme Court — will preach their beliefs, teach their faith, make up their front pages, and decide whether their cartoons are offensive. Why should newspapers play second fiddle under the First Amendment?

The New York Sun

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