stern's thoughts on "captive audiences"

[David Guinn]

>>> Michael McConnell <Mcconnellm at LAW.UTAH.EDU> 02/11 7:05 AM >>>
 I wonder if perhaps the Establishment Clause is being infected by the notion that
the government has a right/obligation to protect people from
unwelcome or unpleasant private speech in public forums, businesses,
and places of public accommodation (broadly construed). In principle,
this drives freedom of speech to the margins of society -- to
churches, homes, intimate associations, and any expressive
associations that have not been stripped of their identity by hostile
courts.
>>>>

While I agree that this is troubling, I think it is in part the result of anti-discrimination efforts.  Historically, people were shielded from "hostile" speech by their patterns of private association.  They tended to gather together into communities of like minded individuals.  One either conformed to the dominant ethos of that group or moved on.  Indeed, at the time of the revolution, "the frontier" was the great escape valve for religious freedom.

We are no longer free to isolate ourselves or discriminate against many groups.  While I personally think that this is a positive good, I think the concept of "hostile environment" litigation is an effort to create or enforce a minimalist code of "civil" discourse.  In a world in which people must work together in close and intimate association, it is unrealistic to picture ourselves and individualist, gun slingers free to insult who we may.  Just as we've recently been reminded on this list - constructive conversation does require the acceptance of a certain degree of civility.   We can disagree strongly, without being disrespectful.

David

David E. Guinn, JD, PhD
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