Tag Archives: Free Speech

Quote for the Day

On the spread of American pop culture across the globe:

[S]ince the Internet ensures that barriers are transgressed with impunity, the lowest forms of human life will in due course dominate the screen in every living room, and the blame for this will fall squarely on America. Of course, that will be unjust. The blame for watching destructive images falls on the person watching them. The problem is that people are sorely tempted beings, unable to protect themselves from their own worst desires without the help of a culture that backs up their efforts.

Roger Scruton, Pop Imperialism.

Inazu on the Idea of the Public Forum

John Inazu has posted a very thoughtful and interesting piece, The First Amendment’s Public Forum. The abstract and some rapid reactions to the piece follow:

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.”

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

This piece continues and amplifies on John’s important work on the freedom of assembly. I have often wondered (and I suspect John may also wonder) whether the increasing muscularity of speech doctrine–verging, in my own view, on what might reasonably called absolutism–has contributed (or is contributing) to the weakening of the other freedoms guaranteed by the First Amendment. One need not hold Robert Bork’s view of the speech clause to suspect that this is happening. One can see the phenomenon with respect to the religion clauses–for example, in the claim that corporations cannot “exercise” religion because corporations cannot “believe” anything, or have no “consciences” (that very claim about corporations was rejected by the Court as to speech itself, though Justice John Paul Stevens as well as most of the rest of the legal academy are still up in arms about it). John’s own relational account of the freedom of assembly emphasizes the value of congregation and consociation–of the act of gathering together for a social purpose–which is rather a distinct good than whatever speech concerns are at issue. One might add that the value of place–of having a place, and perhaps even (and more controversially?) of knowing one’s place–are important First Amendment considerations.

“We are not against modernity, but we are against westernization”

Earlier this month, Penguin Books India agreed to recall and destroy copies of a book by American scholar Wendy Doniger, The Hindus: An Alternative History. Penguin did so in order to settle a four-year old lawsuit by a Hindu activist group, Shiksha Bashao Andolan, alleging that publication violated Indian law, which forbids insulting the religious beliefs of a class of citizens. In a statement, Penguin maintained that it had an obligation “to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be.” Doniger concurred, stating that Indian law is “the true villain of this piece.”

The main complaint seems to be that Doniger’s book presents a hypersexualized, distorted version of Hinduism. Here’s Shiksha Bashao Andolan’s president, Dinanath Batra, in a Time magazine interview, describing what his group finds objectionable:

Doniger says [in the book] that when Sanskrit scriptures were written, Indian society favored open sexuality. The jacket of her book shows Lord Krishna sitting on the buttocks of nude women. She equates the shivlingam, worshipped all over India by millions, with sex and calls it an erect penis. She calls Gandhiji strange and says he used to sleep with young girls.

What I find most interesting in this controversy is the incomprehension each side has for the other. The activists, with Indian law on their side, think they are striking a blow for cultural and religious freedom. They are standing up to tactless outsiders who mock sacred things. Most Western observers, by contrast, are simultaneously repulsed and amused at the notion that people would find Doniger’s book off-putting and actually try to stop its publication. The activists must be rubes and obscurantists. The condescension comes through very clearly in the questions Time put to Batra, including the last one: “Don’t you worry that your objections might seem outdated in today’s modern world?” Batra’s answer is revealing, too: “We are not against modernity, but we are against westernization.”

Once again, we see the conflict between the values of WEIRD cultures–Western, Educated, Industrialized, Rich, and Democratic–and those of more traditional societies. WEIRD cultures stress individual expression and fulfillment; traditional cultures value authority, community, and sacredness. To someone from a WEIRD perspective, it’s impossible to believe that serious people could be morally outraged by Doniger’s book, or think destroying the book a proper response. By contrast, people embedded in a traditional Hindu culture find Doniger’s interpretation disgraceful and foreign–an insult that should not be borne.

Of course, cultures aren’t uniform. Some Indians have WEIRD values; some Westerners are traditionalists. Some well-known Indian writers objected to Batra’s lawsuit; here in the US, the Hindu American Foundation issued a statement basically endorsing Penguin’s decision. But, on the whole, the WEIRD/Traditionalist divide is a useful way to understand our world. It explains many current controversies, like blasphemy prosecutions in Pakistan, proposals to ban circumcision in Scandinavia, anti-homosexuality laws in Africa, and the dispute over Doniger’s book.

As I’ve written before, it seems to me that three possibilities exist. First, WEIRD values will come to dominate worldwide. WEIRD culture has many benefits, and America projects it around the world relentlessly, through movies, advertising, the Internet, and so on. Second, Western culture will become less WEIRD. This could happen, too, especially if large numbers of people from traditional societies immigrate to the West. Third, and most likely, WEIRD and non-WEIRD cultures will continue to face off against one another for the foreseeable future, with inevitable clashes and occasional compromises. Buckle your seat belts.

Also, They Will Need to Use Electric Typewriters

This is rather silly. Inside Higher Ed reports that the International Studies Association–according to its website, “the most respected and widely known scholarly association dedicated to international studies”–has proposed a ban on personal blogging by editors of its journals. The proposal would allow editors to blog only at official sites affiliated with their journals. The ISA’s President says the association is concerned about the lack of professionalism at many academic blogs and that it doesn’t want readers to confuse editors’ personal posts with the association’s official products.

Maybe international studies blogs tend to tackiness, I don’t know. But I can’t see how a scholarly association would think to ban personal blogging in the year 2014. Leave aside for the moment concerns about academic freedom. Blogs serve a useful academic function. Sure, blogs aren’t the same thing as long-form scholarship; a writer can’t fully develop ideas in the blogging format. But blogs allow scholars to carry on helpful conversations with colleagues across the world and to engage the wider public as well. They can highlight current issues that merit further study. And blogs can be equalizers for scholars from smaller and less well-known institutions. Scholars who would never be asked on PBS’s News Hour can use blogs as a way to get their ideas out and influence debate. It would be wrong to lose these benefits because of a vague concern about professionalism. If the ISA is having trouble with editors who post childish comments on personal blogs–apparently, this is one of the reasons the association has proposed the ban–it ought to speak to those editors directly, rather than adopt a blanket prohibition. (H/T: Instapundit).

Discussion on Banning “Islamophobia” (Jan. 17)

The Hudson Institute in Washington will host a discussion, “The Organization of Islamic Cooperation: Free Speech Implications of a Proposed Ban on ‘Islamophobia,’” on January 17:

“Islamophobia” is a widely used yet vague and controversial term referring to anti-Muslim bigotry. In recent years, identifying, monitoring, reporting on, and working to ban Islamophobia worldwide has been a major focus of the Organization of Islamic Cooperation (OIC).

The OIC is an international body of 56 member states that is based in Saudi Arabia and active within the United Nations. While the United States has formally recognized its work in the past – US ambassadors have observed its sessions and former Secretary of State Hillary Clinton co-chaired some of its meetings – American awareness of the organization remains scant.

 In 2007, the OIC began issuing regular “observatory” reports on Islamophobia, and since 2009 has published monthly bulletins that cite primarily Western examples of Islamophobia.

Is Islamophobia a serious problem, or is the term itself an ideological cudgel designed to incite fear and criminalize dissent?  Dr. Mark Durie will discuss these and other basic questions related to the OIC’s efforts to ban Islamophobia.

Details are here.

“Prayer is serious business”

With Thanksgiving weekend coming to an end, it seems like a good time to share a few words about Town of Greece v. Galloway, the legislative prayer case on which the Supreme Court heard oral argument early last month, on November 6.

I have a special personal interest in this case because I was a law clerk to William J. Brennan, Jr. when the Supreme Court decided Marsh v. Chambers, the case that first upheld the practice of legislative prayer on essentially historical grounds, and worked on Justice Brennan’s dissent.  The dissent argued, compellingly I think, that official legislative prayers violated the Establishment Clause despite their long history in both Congress and state legislatures.  But my favorite passage in the dissent, and the one possibly most relevant to the Town of Greece case, is this:

[L]egislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian.  I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations.

More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate.  Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Continue reading

“Innocence of Muslims” Filmmaker Released from Prison

How time flies. It hardly seems possible that almost a year has passed since last September’s controversy over an offensive You Tube video, “The Innocence of Muslims.” The video led to protests at American embassies in Egypt and elsewhere in the Middle East, drew the attention of the US President (“The future must not belong to those who slander the Prophet of Islam”), and had serious people questioning American free speech principles. Things have gotten much worse in the Middle East since then–in Egypt today, there are reports of massive violence in Cairo and the burning of churches across the country–for reasons that have nothing to do with a video that, one suspects, gets very few hits any longer. At one point, the US Government asserted that the video had led to the storming of the US consulate in Benghazi, Libya, and the murder of four Americans there, including the US ambassador. But that explanation is no longer operative, and the media seems mostly uninterested in finding out what really happened. What difference at this point does it make?

One person for whom time has not flown, however, is the video’s American producer, Nakoula Basseley Nakoula, also known as Mark Basseley Youssef. He has spent the past year in federal prison. Nakoula has been in jail for violating parole on a prior fraud conviction, but there can be little doubt that as a practical matter authorities seized him because of the controversy over the video. Federal authorities have now moved him to a halfway house to serve the remaining weeks of his sentence. The location is undisclosed, presumably to protect Nakoula. In an interview this week with CNN, Nakoula says he was shocked at the allegation that his film caused the Benghazi attack. He also–much less convincingly–expresses surprise that people would think his video was anti-Islam. Nakoula will be on probation for a few more years and will also need to face civil suits by the film’s actors, who allege he misled them about the video’s content.

Crimm & Winer on Tax Laws and Political Speech by Houses of Worship

Our St. John’s colleague, Nina Crimm, has published “Tax Laws’ Ban on Political Campaign Speech by Houses of Worship: Inappropriate Government Censorship and Intrusion on Religion”  (with Laurence Winer (Arizona State)) in a symposium issue of the Bar Ilan University Journal of Law, State and Religion. The abstract follows:

To ensure their legitimacy, western liberal democracies depend on the fullest protection for freedom of political and electoral speech. Governments should not interfere with or chill these fundamental rights of democratic participation without overwhelmingly compelling reasons to do so.  In the US, however, despite the majestic protections of the First Amendment, anomalously there remains a large class of nonprofit entities that are statutorily precluded from this type of crucial political involvement, and this exceptional restriction on speech is incongruously based in the federal tax code. In particular, spiritual leaders who might feel theologically compelled to speak out on critical moral and political issues of the day risk the tax exempt status of their houses of worship if they cross an amorphous line into explicit or implicit political campaign speech. Both freedom of expression and religious freedom are at stake, and the tax system is a particularly inapt and inept mechanism for restricting speech and influencing the political activity of houses of worship.

Wilson, “The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars”

This August, Stanford University Press will publish The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars, written by Joshua C. the street politics of abortionWilson (University of Denver).  The publisher’s description follows.

The U.S. Supreme Court decision in Roe v. Wade stands as a historic victory for abortion-rights activists. But rather than serving as the coda to what had been a comparatively low-profile social conflict, the decision mobilized a wave of anti-abortion protests and ignited a heated struggle that continues to this day.  Picking up the story in the contentious decades that followed Roe, The Street Politics of Abortion is the first book to consider the rise and fall of clinic-front protests through the 1980s and 1990s, the most visible and contentious period in U.S. reproductive politics. Joshua Wilson considers how street level protests lead to three seminal Court decisions—Planned Parenthood v. Williams, Schenck v. Pro-Choice Network of Western N.Y., and Hill v. Colorado. The eventual demise of street protests via these cases taught anti-abortion activists the value of incremental institutional strategies that could produce concrete policy gains without drawing the public’s attention. Activists on both sides ultimately moved—often literally—from the streets to fight in state legislative halls and courtrooms.

At its core, the story of clinic-front protests is the story of the Christian Right’s mercurial assent as a force in American politics. As the conflict moved from the street, to the courts, and eventually to legislative halls, the competing sides came to rely on a network of lawyers and professionals to champion their causes. New Christian Right institutions—including Pat Robertson’s American Center for Law and Justice and the Regent University Law School, and Jerry Falwell’s Liberty University School of Law—trained elite activists for their “front line” battles in government. Wilson demonstrates how the abortion-rights movement, despite its initial success with Roe, has since faced continuous challenges and difficulties, while the anti-abortion movement continues to gain strength in spite of its losses.

Supreme Court to Hear Abortion Protest Restriction Case

The Supreme Court has granted certiorari in McCullen v. Coakley, a case out of Massachusetts involving a free speech challenge to a law that makes it a crime for speakers other than clinic “employees or agents…acting within the scope of their employment” “to enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of a “reproductive health care facility.” The Court’s decision in Hill v. Colorado (2000) is also arguably in play. In Hill, the Court (6-3) upheld a Colorado statute making it unlawful for a person within 100 feet of an abortion clinic entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass leaflets, display signs, or engage in oral protests, education, or counseling of that person.

See this post and the linked amicus brief authored by our friend and CLR Forum former guest Kevin Walsh for argument about how the Court could strike down the Massachusetts law in McCullen without overturning (or even disturbing the core holding of) Hill.