Tag Archives: Free 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’.

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.