Tag Archives: Free Speech

Shiffrin on Progressive Preference for Speech Over Religion

Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve’s even as his politics and my own differ in various ways.

Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause–that is, its arguably indefensible modern scope. He writes:

Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.

Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).

It’s an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).

In Turkey, the Clash of Civilizations Continues

In academic and policymaking circles in the West, one hears a great deal about universal human rights. These rights, it is said, apply to everyone, everywhere; they are inherent in human nature. It’s an interesting idea. The problem is, not everyone agrees. That’s putting it mildly. Whole civilizations reject the Western conception of universal human rights, including, principally, freedom of expression and freedom of religion. We can tell ourselves that the conflict is temporary and superficial, that other civilizations are moving inexorably toward our understanding. We have international agreements! But much suggests the clash is profound and perduring.

Events in Turkey over the past weekend provide more evidence. On Saturday, 100,000 people gathered in the city of Diyarbakir to protest the publication of cartoons of the Prophet Muhammad in the French journal, Charlie Hebdo. One hundred thousand people – that’s hardly a fringe phenomenon. According to an account in a Turkish newspaper, speakers condemned the notion that freedom of expression extended to insults against the Prophet. Protesters held up placards with phrases such as “‘Damn those saying “I am Charlie,” and ‘May Charlie’s Devils not defame the Prophet.’”

These sentiments are not limited to the reaches of Anatolia. Prime Minister Ahmet Davutoğlu personally expressed his support for the protesters. At a meeting of the ruling AKP party in Diyarbakir, he sent greetings to the protesters, to “each and every brother who defends the Prophet Muhammad here.” (Ironically, Davutoğlu represented Turkey at the solidarity rally in Paris the weekend after the Charlie Hebdo attacks).  And, on Sunday, a court in Ankara ordered Facebook to block users’ access to pages containing content deemed insulting to the Prophet. According to the New York Times, Facebook immediately complied.

Of course, not everyone in Turkey endorses these actions, but that’s not the point. Throughout the country, and in many other places across the globe, millions disagree, profoundly, with how the West understands things. They are not about to change their minds. We need to pay attention. The clash of civilizations continues.

Who Speaks on Your License Plate?

The Supreme Court recently granted cert in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issues presented in that case are whether specialty license plates are a form of government speech, and whether Texas engaged in viewpoint discrimination when it rejected the SCV’s plate design featuring the Confederate battle flag. In a 2011 article in the Tulane Law Review, I wrote about license plate speech more extensively from a perspective slightly different than that presented in the Walker v. SCV case. My focus was on the question of Establishment Clause responsibility for religious messages on license plates. But the issues raised overlap significantly.

Imagine a state decides to display religious symbols or text on a license plate. South Carolina, for instance, created a specialty plate featuring a stained glass window with a superimposed cross and the words “I Believe.” Efforts to create a plate with a similar design failed in Florida. A federal court ultimately permanently enjoined South Carolina from issuing the plates.

Does a state’s specialty license plate program create a public forum for speech? If religious messages are displayed on the license plates, is the message purely private religious speech, or is it attributable to the state for Establishment Clause purposes?

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Interesting Law and Religion Case Before the Supreme Court Next Week

The Supreme Court’s January calendar begins next week with argument in Reed v. Town of Gilbert, Arizona, a law and religion case that has gotten very little attention. The case relates to some of the issues that Mark Movsesian and Perry Dane have been talking about involving the New York City subway regulations concerning advertising. I found Perry’s phrase, “mental maps,” to be useful in thinking through the categories that we use to divide up both meanings and the motivations for expressing certain meanings. This case tests our mental maps.

It seems that the Town of Gilbert has a complex set of regulations governing the display of signs. It categorizes signs into five groups: political signs, ideological signs, “qualifying event” signs, homeowners’ association temporary signs, and real estate signs. Different rules regarding the size, duration, and location of the sign (among other variables) apply depending on the category of sign that one wishes to display.

The petitioners in the case are representatives of the Good News Community Church, a small Christian church that “holds services on Sundays, where attendees worship and fellowship together, learn biblical lessons, sing religious songs, pray for their community, and encourage others whenever possible.” Good News depends on signs to advertise its presence and invite people to join.

The Town has classified Good News as the sort of organization entitled to “qualifying event signs.” A “qualifying event sign” is a “temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

By contrast, a “political sign” is a “temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election.”

And an “ideological sign” is a “sign communicating a message or ideas for non- commercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.”

The petitioners’ basic complaint is that by lumping the Church in with organizations entitled only to a “qualifying event” sign, the Town is engaging in viewpoint discrimination against it, because it is only entitled to a tiny sign of very limited duration that can only be displayed in limited locations. The Town’s justification for this highly reticulated set of requirements and classifications? “Safety and aesthetics.” Also of interest is that at some point in the procedural history (which looks rather involved), the Town amended certain locational requirements for “qualifying events signs,” replacing them with a requirement that “qualifying events signs” must “relate to events in the Town of Gilbert.” That requirement does not apply to political or ideological signs. The Church claims that this amendment was made specifically to target it for unfavorable treatment.

At any rate, it will be interesting to see how the argument goes. Here is an interesting contrast contained in the Petitioners’ Brief:

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“Freedom of Speech and Islam” (Kolig, ed.)

Last month, Ashgate Publishing released “Freedom of Speech and Islam” edited by Erich Kolig (University of Otago). The publisher’s description follows:

Freedom of speech and expression is considered in the West a high public good and an important social value, underpinned by legislative and ethical norms. Its importance is not shared to the same extent by conservative and devout Muslims, who read Islamic doctrines in ways seemingly incompatible with Western notions of freedom of speech. Since the Salman Rushdie affair in the 1980s there has been growing recognition in the West that its cherished value of free speech and associated freedoms relating to arts, the press and media, literature, academia, critical satire etc. episodically clash with conservative Islamic values that limit this freedom for the sake of holding religious issues sacrosanct. Recent controversies – such as the Danish cartoons, the Charlie Hebdo affair, Quran burnings, and the internet film ‘The Innocence of Muslims’ which have stirred violent reactions in the Muslim world – have made the West aware of the fact that Muslims’ religious sensitivities have to be taken into account in exercising traditional Western freedoms of speech.

Sniderman et al., “Paradoxes of Liberal Democracy”

This month, Princeton University Press released “Paradoxes of Liberal Democracy: Islam, Western Europe and the Danish Cartoon Crisis” by Paul Sniderman (Stanford University), Michael Peterson, Rune Slothuus, and Rune Stubager (all from Aarhus University, Denmark).  The publisher’s description follows:

Paradoxes of Liberal DemocracyIn 2005, twelve cartoons mocking the prophet Mohammed appeared in the Danish newspaper Jyllands-Posten, igniting a political firestorm over demands by some Muslims that the claims of their religious faith take precedence over freedom of expression. Given the explosive reaction from Middle Eastern governments, Muslim clerics, and some Danish politicians, the stage was set for a backlash against Muslims in Denmark. But no such backlash occurred.

Paradoxes of Liberal Democracy shows how the majority of ordinary Danish citizens provided a solid wall of support for the rights of their country’s growing Muslim minority, drawing a sharp distinction between Muslim immigrants and Islamic fundamentalists and supporting the civil rights of Muslim immigrants as fully as those of fellow Danes—for example, Christian fundamentalists. Building on randomized experiments conducted as part of large, nationally representative opinion surveys, Paradoxes of Liberal Democracy also demonstrates how the moral covenant underpinning the welfare state simultaneously promotes equal treatment for some Muslim immigrants and opens the door to discrimination against others.

Revealing the strength of Denmark’s commitment to democratic values, Paradoxes of Liberal Democracy underlines the challenges of inclusion but offers hope to those seeking to reconcile the secular values of liberal democracy and the religious faith of Muslim immigrants in Europe.

Is More Less? Or is More More?

The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?

The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger’s key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to “balance” the right against rival interests.

That particular “more-is-less” claim depends on the scope given to a protected right. A related “more-is-less” claim focuses on the expansion of the number of protected rights. That’s the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven’t seen it, Steve is writing up a storm over there). Steve writes:

[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.

Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights…“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)….

Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.

Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are “substantial” trigger the law’s protection. A religious burden isn’t enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we’ve now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of “substantiality” and we talk about the shifting of burdens and the balancing of interests because we’ve watered down the basic right so much that we don’t even really know what it is that counts as the right in the first place any longer.

But there is another side to the story. That side is admirably represented by John Inazu in this paper–More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of “rights confinement” as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest–that is, in what government ought to be interested in at all.

Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen.

If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right’s prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right’s strength and ambit, but evolving cultural perceptions of the strength and ambit of the state’s proper power.

“Profane” (Grenda, Beneke, & Nash, eds.)

This month, University of California Press will release Profane: Sacrilegious Expression in a Multicultural Age, edited by Christopher Grenda (Bronx Community College and City University of New York), Chris Beneke (Bentley University), and David Nash (Oxford Brookes University).  The publisher’s description follows:

ProfaneHumans have been uttering profane words and incurring the consequences for millennia. But contemporary events—from the violence in 2006 that followed Danish newspaper cartoons depicting the Prophet Mohammed to the 2012 furor over the Innocence of Muslims video—indicate that controversy concerning blasphemy has reemerged in explosive transnational form. In an age when electronic media transmit offense as rapidly as profane images and texts can be produced, blasphemy is bracingly relevant again.

In this volume, a distinguished cast of international scholars examines the profound difficulties blasphemy raises for modern societies. Contributors examine how the sacred is formed and maintained, how sacrilegious expression is conceived and regulated, and how the resulting conflicts resist easy adjudication. Their studies range across art, history, politics, law, literature, and theology. Because of the global nature of the problem, the volume’s approach is comparative, examining blasphemy across cultural and geopolitical boundaries.

Shiffrin on Hobby Lobby

First Amendment scholar Steven Shiffrin has a typically thoughtful post on the Hobby Lobby decision. Part of what makes the post so good is that it follows from Steve’s own longstanding and (to me) persuasive criticisms of the extraordinary lengths to which we are prepared to recognize rights of free speech. Parenthetically, the last time I checked, Steve is not particularly well-known for his dyed-in-the-wool conservatism. But setting aside that rather tedious ideological point, it is quite striking to see the expansive interpretation of the rights of speech (whatever the source–constitutional or statutory) in conjunction with what critics of decisions like Hobby Lobby argue should be a narrowing of the rights of religious freedom. Steven goes through a few of the issues, but among the best parts of Steve’s post is the following:

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim….

Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

Winston, “The Rushdie Fatwa and After”

This month, Palgrave Macmillan will release The Rushdie Fatwa and After: A Lesson to the Circumspect, by Brian Winston (University of Lincoln). The publisher’s description follows:

The freedom to create was rocked by the Imam Khomeini’s death sentence on Salman Rushdie 25 years ago. Ever since Khomeini’s fatwa called for Rushdie’s murder because of what he wrote in his novel The Satanic Verses, the zealous of many faiths have been moved on more than one occasion to protest – often with extreme violence – artistic expression in all its forms. The Rushdie Fatwa and After untangles that original event and the other major attacks on creative freedom it presaged. It argues that our ability to resist this assault has been seriously undermined by Western tolerance. The ripples of the stone the Imam cast that day in 1989 are travelling yet, disturbing the waters of the Western Enlightenment, circles within circles, like the stories of The 1001 Nights. Now Winston presents this sorry history as what that book might well call ‘a lesson to the circumspect’.