Tuesday, August 11, 2009

Phase 3: A Referendum?

In recent posts on this blog I've wondered about Phase 3, the next step, if any, that Maziarka and the WBC4SL will take in their attempt to force their homophobic and censorious agenda on the West Bend library. I certainly don't know what that step will be, but a possible hint was given this weekend in an online artcle by the American Family News Network, linked from a post on the WISSUP blog. We are told there that "the organization is examining its options, which includes a referendum."

It's impossible to guess what the details of such a referendum would be, but it's worth thinking a little about it in advance.

First, I think it's a good idea that Maziarka and the WBC4SL are exploring the possibility of a referendum. I'm talking here about the process of exploration, not about whatever referendum might eventually be placed before the voters. The exploration is a good idea because the process will be highly educational for everyone, above all for the would-be censors. At some point, they'll be forced to consult people who actually understand the applicable laws, a step they've obviously skipped so far, as evidenced by the half-baked pseudo-legalism of their petition. The process will be a rude awakening to Maziarka and the WBC4SL, who will be forced to confront the fact that their understanding of the legalities of obscenity and censorship has so far been infantile.

There's a good chance that the referendum will never make it past this exploration process, but that's far from certain. They might find a legal angle they think could work, or they might ignore the competent legal advice given them.

The details can't be predicted, but such ballot initiatives tend to follow certain patterns. One possibility, if Wisconsin ballot law allows, would be some kind of "advisory" referendum. An advisory referendum wouldn't change any laws or require any actions, it would just make a statement about values or findings. For example, it might say something like, "the citizens of West Bend find books depicting nudity to be patently offensive." Such a referendum won't directly change anything, but if drawn sufficiently narrowly, perhaps could open the door to some kinds of civil lawsuits. It would still take private funding to pursue such suits, so the real-world probability of an advisory referendum bringing about change is quite small. It will, however, enable endless rhetoric about "community standards" and "the will of the people."

A second possibility would be a referendum that is more than merely advisory, that seeks to change something in the real world. For example, a referendum might require the library to put a warning sticker on any book containing text or images descriptive of sex or sexuality. Censorship and obscenity law being what they are outside of the fantasy world of the WBC4SL, it is difficult to imagine such a referendum being legally enforceable. It is all too easy, though, to imagine such a referendum getting on the ballot, and maybe even passing. Even just getting such a measure on the ballot, let alone passing it, will force a string of suits to test its legality and enforceability, funded by the city and/or county, and depending on the details of the referendum, funded by the state and/or federal governments.

Taxpayers beware! This is all going to cost tax dollars. Moving this debate from the town hall meeting to the ballot box also forces it into the courtroom, and you're going to pay the court costs and legal fees.


  1. My biggest issue with a referendum is the fallacy of having a majority of those who bother to vote becoming the moral voice for a "community", thereby squelching any minority view/opinion/orientation. This is precisely the concern encapsulated by de Tocqueville (and others) as the tyranny of the majority.