Religious harassment and free speech

[Jim Maule]

Gene writes...
>         I generally believe that offensive speech must remain
> constitutionally protected.  Though it may offend some listeners, it may
> enlighten or persuade others.  As I've tried to show with my various
> hypos, there will often be some offended listeners, even some "captive"
> offended listeners; if the offensiveness of speech to such listeners can
> justify suppression, then a huge range of speech will end up being
> punishable.

I suppose my first clarification is that I think mere offensiveness
is not enough to suppress or perhaps even regulate speech. (Goodness,
I rely on the protection given offensive speech as I am sure I have
(intentionally or more likely unintentionally) offended people! I am
focusing on harmful or threatening speech -- without getting into
where and how the line is drawn, there certainly is speech that is
threatening or harmful (ranging from fire in a crowded theater to
"see those cult members? think they ought to get home in one piece?"
stuff). In my original postings I had suggested that the showing of
harm or threat could be affected by the content, and though I have
been persuaded that going that path isn't in compliance with current
FA jurisprudence, I still think that among the factors relevant in
determining whether speech is harmful or threatening, things such as
age (children), location (crowded theatre), physical positioning (in
your face v. from a distance), and content (addressing religious
beliefs v arguing over who ran the red light) are relevant. Perhaps
someday these tests will be refined, but for the moment, let's just
assume that the speech is harmful or threatening.

>         I do recognize, though, that in some situations it's possible to
> protect the offended listeners *without* interfering with communication
> to potentially willing listeners.  Giving a householder veto power over
> mail sent to him is one example, see Rowan v. Post Office Dep't;
> likewise for phone calls; possibly likewise for one-to-one statements
> said in the workplace when it's clear that the listener doesn't want to
> hear them.

I thank Doug and Marty for providing a better articulation of what I
wanted to say on this point. I think Gene may be suggesting that the
larger the crowd the more difficult it is to conclude that all of the
audience are NOT willing listeners. In some of the original hypos,
that might not be so difficult -- a group of worshippers entering a
church or temple or synagogue and being harassed on the basis of
religion (in contrast to, say, which team is the best baseball club)
should be presumed to be unwilling listeners. Maybe it is here that
the fact that the speech addresses religion is a factor --
determining whether there are unwilling listeners can relate the
nature of the speech to the characteristics of the group audience.
Here I probably ought to suggest that Gene is correct in suggesting
that religion is not the only such identifying characteristics... a
group of delegates to the Democratic National Convention can be
presumed to be unwilling listeners when someone positioned nearby is
shouting to a gathering crowd "Should we let these bums nominate
another Clinton? Do you think we ought to let these people know we're
sick of their decisions? Are you willing to let them enter that
convention hall?" Here the characteristic is political affiliation
and I think I am persuaded that it, too, would provide a basis for
concluding that the delegates are not willing listeners. Of
course,there are willing listeners -- some among those the person is
trying to incite (though some may already be "in" on the speaker's
plan and already know what is going to be said, in which case the
speaker is speaking as an agent of those associates and not *to*
them, but perhaps that refines the argument too much).

>         But the premise of this exception is precisely that there's only
> one listener, who doesn't want to hear.  The moment you have speech
> that's addressed to many listeners (a billboard, a picket line, a poster
> on a cubicle wall, an article in a newspaper or an employee newsletter,
> etc.), restricting the speech at the demand of an offended listener, or
> even many offended listeners, will interfere with communication to
> other, potentially willing listeners.  This, I think, is unacceptable.

And again thanks to Doug and Marty for elaborating on this point.
When they suggested what it is I am trying to say, they are right.
Their articulation is helpful.

>         It's true that under my proposal, a good deal of speech --
> speech that reaches both offended listeners and others -- will end up
> being protected despite the offense it causes, and thus the harm of the
> offense and the actions that flow from the offense will go unpunished.
> But this, I think, is the right rule under the Free Speech Clause.

I agree with Gene's articulation. It is not the offensiveness but the
creation of fear (for want of a better term) that concerns me. And,
yes, this is subjective. I think a group of Teamsters on a picket
line is less likely to be threatened by offensive speech than a group
of senior citizens on their way into a function at a synagogue who
are accosted by skinheads screaming for the return of persecution.

>         I realize, of course, that one could take the opposite view: the
> view that we should be able to protect offended listeners even if in the
> process we interfere with communication to other listeners.  We see a
> narrow version of this in FCC v. Pacifica Foundation, and a broader one
> in the Cohen v. California dissent.  And Jim is urging such a view.

And as Marty points out there are times that this is necessary.
Perhaps children present a unique case, but as much as I advocate
freedom of religious and other expression, children must be protected
from certain things (this is more a matter of regulation than
suppression). Are there other groups that are as needful as children?
Perhaps. Are there other groups that are as needful as children when
there are certain circumstances? Probably. Consider the senior citizen
group mentioned above.

>         But of course I might have misinterpreted Jim's proposal; if so,
> I'd be delighted to be set straight.

Considering how inarticulate I have been as I have struggled with
this issue, it isn't a matter of Gene's misinterpretation as much as
it is a matter of my inarticulation.

Thanks
Jim



Jim Maule
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.vill.edu
http://www.cilp.org/~maule
(610) 519 - 7135

"government big enough to give you everything you want is also big
enough to take away from you everything you have"
    -- George Herbert Walker Bush