Accuracy in Media

When Bill O’Reilly says Fox News is not conservative, he may have in mind John Gibson, who came from MSNBC. He recently filled in for O’Reilly and treated conservative professor and noted author David Lowenthal very badly. The issue was the Ten Commandments monument that Justice Roy Moore refused to move from his courthouse.

Gibson said Moore was a rabble-rouser defying higher court rulings. But Lowenthal said the federal courts had no jurisdiction over Alabama. “How can you defend what he’s doing?” Gibson thundered. “The defiance of judicial orders is undermining the authority of his very position.” Lowenthal replied that, “You’re assuming the thing to be contested. Which is that the federal judiciary has jurisdiction over this matter.” Gibson interrupted Lowenthal at about that point to go to his other guest, a liberal professor who agreed entirely with Gibson.

Lowenthal virtually pleaded for the opportunity to make his case. “If you would let me simply explain?” said Lowenthal. “It’s a simple basic point. Must Alabama bow down to the federal judiciary? Every justice and every federal employee is sworn to uphold the Constitution, not the Supreme Court’s interpretation of the Constitution.” Gibson claimed to really be on Moore’s side, that he believed the Constitution allowed such a monument. But he didn’t want to hear the details of the case.

In an interview, Lowenthal explained that, contrary to Gibson’s claim, it isn’t Moore who is defying the law, it is the federal court. Lowenthal compared Moore’s position to a soldier who receives an illegal order and is bound by his oath to disobey it. The second point, which Lowenthal was not allowed to make on the show, is that the First Amendment prohibition against establishing religion was designed by the founders to make sure that Congress didn’t establish a national religion or church like they have in England. He said it has nothing to do with states displaying the Ten Commandments, and any ruling to the contrary employs “fancy footwork” rather than relying on the actual text of the Constitution.

In fact, Lowenthal says that, at the time, about half the American states had their own official churches or religion. Lowenthal said he had never thought Gibson was going to treat him in such an insulting manner: “If I had thought he was going to do anything like that, I just wouldn’t have appeared.” On the Fox Show, Special Report with Brit Hume, law professor Jonathan Turley of George Washington University admitted that the founders meant to prohibit establishment of a national church but that the clause “came to mean something more” when the Supreme Court found a “separation of church and state” that he acknowledged in response to Brit Hume’s question was not actually in the Constitution itself.

Brit Hume called Turley “our favorite law professor.” But he was engaging in the same kind of “fancy footwork” used by the federal judge in the Moore case. This interview?and the Gibson treatment of Lowenthal?proved O’Reilly’s point that Fox is not necessarily conservative.

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