Liars have free speech rights but the ACLU shouldn't promote Barton's misinformation

May 31, 2024

I first published this article last year, but a recent update shows the ACLU hasn’t fixed its mistake, so I’m reposting it with updates.

The ACLU has a long history of defending conservative groups when it comes to First Amendment issues, so it wasn’t surprising last year when they announced a lawsuit on behalf of Christian pseudo-historian David Barton and WallBuilders, the group he uses to spread misinformation. (It was almost more surprising that Barton accepted the help.) The ACLU was also partnering with the right-wing First Liberty Institute on the case.

The lawsuit involved ads that WallBuilders wanted to place on buses in Washington, D.C. One of them featured Henry Brueckner’s painting of George Washington kneeling in prayer with text that reads “CHRISTIAN? To find out about the faith of our founders, go to WallBuilders.com.”

(Follow above article link to view photos/PDFs that accompany this article.)

Another ad, with the same text, used the Howard Chandler Christy painting “Signing of the Constitution”:

Both ads, along with identical ones without the text, were rejected by the Washington Metropolitan Area Transit Authority (WMATA):

WMATA rejected the ads on the grounds that they violated its advertising guidelines, which prohibit advertising “intended to influence members of the public regarding an issue on which there are varying public opinions.” It is also apparent that WallBuilders’ ads violated the guidelines’ prohibition on advertisements “that promote or oppose any religion, religious practice or belief.” 

The ACLU’s argument here was that a government agency had no right to discriminate on the basis of viewpoint or “from imposing rules that aren’t applied consistently.” The lawsuit offered a list of ads the WMATA had accepted, like ones calling for term limits for Supreme Court justices and other public policy matters. They also accepted ads promoting “The Book of Mormon” musical (which spoofs the religion).

If the WMATA allowed those ads, the ACLU argued, then they should allow these as well.

“The case against WMATA is a critical reminder of what’s at stake when government entities exercise selective censorship. The First Amendment doesn’t play favorites; it ensures that all voices, regardless of their message, have the right to be heard,” said Arthur Spitzer, Senior Counsel at the ACLU-D.C.  “ACLU defends these suits, regardless of whether it agrees with the underlying message because it believes in the speaker’s right to express it. The government cannot arbitrarily decide which voices to silence in public forums.”

On principle, I side with the ACLU here. This isn’t really about Barton and his lies; this is about the selective enforcement of WMATA rules. In 2015, they established their No Political/Religious/Advocacy Ads rule in the wake of a group trying to put up ads featuring an image of Muhammad. But the fact that some ads in those categories have, since that time, slipped through suggested the rule wasn’t being equally enforced.

That said, there was an aspect of this case that should have raised eyebrows for everyone on the church/state separation side of the aisle.

It had to do with how the ACLU described WallBuilders in both the lawsuit and press release:

Plaintiff WallBuilders sought to advertise on the side of WMATA Metrobuses to promote its religious and educational mission, which is to inform the public about the role that the Founders’ religious faith played in the creation of the nation and the drafting of the Constitution. [From the lawsuit]

…

The lawsuit was filed on behalf of WallBuilder Presentations (“WallBuilders&rdquo, an organization advocating for Americans to understand their history and the important role religion played in the founding of our nation, which sought to advertise on the side of WMATA Metro buses. [From the press release]

That was pure bullshit. WallBuilders and Barton do not want to inform the public about the “role” of the Founders’ faith in order to help Americans “understand their history” and the “important role religion played” in our nation’s formation. They purposely lie about those elements to trick gullible Christians into falsely thinking we were founded as a ”Christian nation.”

Barton has made a career out of twisting and distorting the words of the Founding Fathers and the Bible in defense of Christian Nationalism, homophobia, and bigotry. He’s such an egregious Christian liar that he claimed to have an earned Ph.D. that was later revealed to be a hoax. And he once wrote a book about Thomas Jefferson that was so full of misinformation that his Christian publishers pulled the book from the shelves, saying, “There were historical details — matters of fact, not matters of opinion, that were not supported at all.” (The book was ironically titled The Jefferson Lies.)

And yet conservative Christians and Republican politicians still cite him as an authoritative source of information. They know the sort of people who take them seriously aren’t really interested in honesty. They just want someone to say, with total confidence, whatever they all wish was true.

What about those paintings? The Washington one is deceptive. Constitutional scholar Andrew Seidel wrote about it in The Founding Myth (affiliate link):

For all [the painting’s] ubiquity, there is no historical evidence to support the tale. [Priest Mason] Weems designed the story to portray a devout Washington… But historical facts tell us of a different Washington. He was a man of little or no religion with a strong character that, had he been religious, would have prevented showy religious displays...

On the rare occasions when Washington actually attended church (perhaps twelve times a year pre-presidency and only three times in his last three years), Washington refused to take communion, even though his wife did… Washington refused to have a priest or religious rituals at his deathbed, a startling lapse if he were truly devout. As historian Joseph Ellis put it, "there were no ministers in the room, no prayers uttered, no Christian rituals offering the solace of everlasting life.... He died as a Roman stoic rather than a Christian saint."

If he was religious, Washington was exceedingly private about those beliefs, even in personal letters and papers… The ostentatious show Weems invented is simply not in keeping with Washington’s strong, silent character.

And yet that’s the painting Barton wanted to use to suggest the foundation of our country is based on his particular version of Christianity. Like pretty much everything Barton says, it’s built on lie.

To be clear, lying is not necessarily a reason for the WMATA to reject an ad. Barton may still have the upper hand when it comes to the legal issues here. But for the ACLU to help perpetuate those lies? That was appalling.

Warren Throckmorton, who’s covered Barton for years and released a podcast on the pseudo-historian’s lies, couldn’t believe it:

David Barton and Wallbuilders obscures and reimagines American history. He does not want Americans to understand all of their history. Sometimes, he leaves some of the history out when he tells it, as when he left out part of the 1782 Virginia Law on Manumission when he wrote about Thomas Jefferson’s record on slavery. Sometimes he makes things up, like when he says Jefferson cut out and pasted end-to-end all of the words of Jesus (red letters) in a little book for Indians to read. Barton will even tell Americans that the Constitution quotes the Bible verbatim. Does someone who does those things really want “Americans to understand their history?”

So if the ACLU must represent misinformation as free speech, then go for it. But must they lie to defend lying?

At the time, I felt like those aspects of the press release and lawsuit were influenced by First Liberty Institute rather than an ACLU lawyer, but it was still absurd for the ACLU to go along without pushing back harder. They could just as easily have said David Barton was lying, but lying wasn’t against the WMATA’s policies, and we defend his legal right to spread lies in the name of Jesus.

Instead, they allowed Barton’s allies to frame him as a hero, something you can be sure Barton will parrot whenever he delivers another speech in front of a Christian audience.

And now there’s a ruling on the case.

Last week, U.S. District Judge Beryl A. Howell ruled that the WMATA had to accept and run Barton’s ads. The ACLU’s side won. That’s the correct ruling.

But when the ACLU announced its win, it repeated the lie that “WallBuilders is a Texas-based non-profit organization that seeks to educate the public about the role that the Founders’ Christian faith played in the creation of the nation and the drafting of the Constitution.”

Even the sound bites included in the press release reveal the ACLU saying nothing about Barton’s lies while the right-wing First Liberty takes a more open victory lap:

"We are pleased that this ruling moves us one step closer to ending WMATA’s arbitrary censorship of speech about public issues,” said Arthur Spitzer, Senior Counsel at the ACLU-D.C. “In a democracy, the government has no right to pick and choose which viewpoints are acceptable. This case is about expanding everyone's freedom to express their views without unreasonable government interference." 

“The First Amendment grants all Americans the right to express their point of view, religious or secular,” said First Liberty Senior Counsel Jeremy Dys. “Rejecting a faith-based advertising banner by labeling it an ‘issue ad,’ while accepting other ads such as those promoting a ‘Social Justice School’ and ‘Earth Day’ is clearly hypocritical, discriminatory, and illegal. We are grateful that the court recognized that WMATA unconstitutionally rejected WallBuilders ads and look forward to continuing to fight for complete victory.”

I don’t mind the ACLU taking a neutral stand on Barton’s lies as far as First Amendment policies go, but they do not have to hold back on saying it’s a lie. It’s frustrating that they still haven’t figured that out.

The case isn’t over yet. There are still issues to be worked out with the WMATA’s policy concerning religious advertising. But this is undoubtedly a win for Barton.

He can now say with complete sincerity that even the godless liberal ACLU and a Barack Obama-appointed judge believe WallBuilders works to help Americans “understand their history and the important role religion played in the founding of our nation”—and he wouldn’t be wrong. He would be mischaracterizing their statements, as he always does, but at the core of his lie would be a nugget of unfortunate truth.

The ACLU was right to defend him on free speech grounds. But they didn’t have to help him promote his lies. They did it months ago. They’re still doing it now.