Hindus and Baptists

[Thomas C. Berg]

On Fri, 22 Oct 1999 12:25:47 -0500 Rob Weinberg
<robertmw at MINDSPRING.COM> wrote:

>
>
> I was aware when the Southern Baptists targeted the Jews during jewish high
> holy days, I observed and empathized when they went after the Mormons
> recently. I was unaware until Will's post that they were targeting the
> Hindus. I suppose Islam is next, if they haven't already.  While Jim
> decries being considered one of the "racists, sexists, anti-gays, born
> again bigots," for his political views, he appears unable to appreciate
> that his religious/political views are not a license -- at some point -- to
> start a fight, a riot or create mayhem.
>
> While the "auditor's" self-control should clearly be a factor in analyzing
> the injury or reasonableness of a claim of fighting words, Jim does not
> answer the question itself: Is there a point at which you draw the line
> between "religious" free speech and fighting words? History is replete with
> speech -- wrapped in religion -- rising to the level of fighting words. The
> answer is, "Of course."
>
>

Rob and Steve Jamar dutifully note the First
Amendment-protected status of religious proselytizing but
then go on to say various things that, to me, suggest that
they think proselytizing is sort of at the periphery of
protected speech.  (For example, this language of Southern
Baptists "targeting" and "going after" other groups, and
"inciting hatred," which conveys images of more than just
speaking or criticizing other religious beliefs.)

But religious proselytization is at the core of free
speech rather than the periphery.  The history of America,
political and social as well as religious, would be
dramatically different without the waves of religious
revivals, in which converts were sought not only through
conducting meetings but also through door-to-door and
street campaigns.  The Free Speech Clause without
proselytization would be (as Justice Scalia said about
religious speech in general) like Hamlet without the
prince.

Religious proselytization is subject to the fighting
words doctrine to the same extent other core speech is --
that is, not very much.  The fighting words doctrine is
extremely narrow (the Court hasn't upheld a conviction
under it since the first time it mentioned it in
*Chaplinsky* in 1942), and the vast majority of instances
of proselytization do not come close to fighting words
(including almost every instance of Southern Baptist
proselytization of which I am aware).  You need a
face-to-face epithet directed at an individual --
profanity, for the most part -- that, in *Chaplinsky*'s
words, is "no essential part of the exposition of ideas."
Passing out brochures saying Hindus are damned, even
shouting it vehemently on the street in front of a Hindu
temple and on a holy day, is just not fighting words.  That
non-Christians are damned *is* the idea being expressed.
And if the time and place made it fighting words, then
Atlanta could bar racists from holding a march on Dr. King's
birthday.

Closed situations like the workplace differ from general
fighting words doctrine in one sense:  the speaker goes
beyond the bounds of protection if he keeps repeating a
clearly unwelcome message to an individual, because the
recipient can't avoid it the way he can avoid speech on the
streets.  The fact of the workplace should not mean that
the speech becomes fighting words because of the
offensiveness of the idea; it's the repetition of
epithets, or repetition directed at the individual, that
matters. (In addition to again commending Eugene's various
articles on this, can I plug Berg, 22 Harv. J. L. Pub.
Poly. 959 (1999), recently issued?)

Tom Berg




-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Birmingham, AL 35229
(205)726-2415
Email: tcberg at samford.edu