"Coercive" Speech

[Michael deHaven Newsom]

"Volokh, Eugene" wrote:

>
>
>         I just don't see this link between "educational" /
> "noneducational" and "coercive" / "noncoercive."
>
>         We can all think of lots of things that are not educational,
> but not at all coercive.  I assume that an hour on "Why You Should
> Vote for Al Gore" is not very educational, even if it's not at all
> coercive (or entertaining!) under any definition of coercive.
> Similarly, an entirely noncoercive sermon (again, however you define
> this slippery term) may also be noneducational (though I can certainly
> imagine some sermons that are educational).  Likewise for lots of
> other things.
>

We can start with Brennan's opinion in either Engel or Schempp, for what
it is worth.  Brennan there attempted to make a distinction between
education and indoctrination.  I merely pointed out that indoctrination
may involve coercion and all expletive deleted broke loose.  I am still
puzzled by this resistance to what seems to me to be a perfectly obvious
point.  Just one more example, although I wonder why I even try:  in the
literature on National Prohibition, one finds a 1984    unpublished
thesis by a fellow named David E. Ruth called The Georgia Prohibition
Act of 1907.  (on file with the History Department of Emory
University).  He offers us a thesis that provides, in part, that the
impetus for that Act was a desire to recover the control that the
country Protestant clergy had over poor people.  Maybe, if I believe
what I read in response to my posts, poor Mr. Ruth did not get it right
either.  Now I will grant you that it is *possible* that that control
entailed more than mere speech.  But it is inconceivable to me that
speech did not play a large part in the exercise of this control.

Anyway, you still have not laid out a road map to guide FCC
decision-making.

>
>         On the other hand, we can all think lots of things that are
> educational, but coercive.  K-12 education is coercive under the most
> literal definition -- up until a certain age, parents are legally
> required to send their kids to some school, and if they can't afford
> private schooling, they are in effect required to send their kids to
> government-run school.  And kids are of course coerced to go to
> school, either by the government or the parents.  They also are
> coerced to say and do certain things, on pain of lower grades, and the
> same is true in university.

Yup, coercion is a fact of life.  And that includes religious coercion.
So what is the point?

>
>
>         If one focuses not on this kind of coercion but on the
> supposed (and I stress "supposed") coerciveness of speech that tries
> to persuade people by threatening them with dire consequences if they
> aren't persuaded, we can still imagine lots of such education.  AIDS
> education may or may not be a good idea, but surely it's still
> education even though it warns you "If you don't act in a certain way,
> you'll die an awful death."  Same for other forms of health education,
> driver education, gun safety education, and various other items.

I don't get it.  I fail to see the relevance.

>
>
>         Finally, McCollum, Lee, et al. don't stand for the proposition
> that private religious speech can be restricted in a public forum,
> only for the proposition that government speech or government-selected
> religious speech can be restricted in a public forum.

I disagree.  Explain to me how the speech at issue in McCollum can be
fairly described as either government speech or government-selected
speech.  If a student offered to read a passage from the KJV in the
morning home room period, and the teacher let her do so, that is still
private religious speech, I think.  Maybe you would insist that such
speech is government speech, although of course it is quite a stretch to
call it "government-selected" religious speech.  A school teacher has no
Free Exercise right to read to her students from the Koran in that home
room period. Would Lee have come out any differently if the Rabbi had
been given no guidance as to how to compose the prayer at issue?    Are
the cases holding that student-led speech in certain "ceremonial" public
school situations is unconstitutional holding that such speech is
"government" speech or "government-selected" speech?  I wonder.

Of course, this could all just be a matter of semantics.  If the
government permits a private person to utter religious speech in a
public forum, I fail to see how it does not become, under your view,
government speech.



>
>
>      -----Original Message-----
>      From:   Michael deHaven Newsom [SMTP:mnewsom at LAW.HOWARD.EDU]
>      Sent:   Wednesday, January 19, 2000 10:23 AM
>      To:     RELIGIONLAW at listserv.ucla.edu
>      Subject:        Re: "Coercive" Speech
>
>      Interestingly, we have joined a basic issue, so to speak.  I
>      cannot
>      imagine any analytical construct that distinguishes between
>      "educational" and "non-educational" speech, or programming
>      content that
>      does not take coercion into account.  For these purposes, I am
>      bracketing "entertainment."  This may or may not be altogether
>      proper,
>      but I suspect that the FCC is not interested in the
>      "entertainment"
>      value of the programming on this special subset of TV stations.
>      If
>      there is a better way to distinguish between education and fire
>      and
>      brimstone sermons, than an analysis of "coercion,"  please let me
>      know.
>
>      I do not wish to be understood as "liking" having to consider
>      whether
>      something is coercive or not, especially in this context.  But I
>      do not
>      see an alternative, short of striking down the underlying law.
>
>      Eugene correctly recognizes that we are talking about a kind of
>      government "subsidy" in these cases and maybe what we have to do,
>      for a
>      variety of reasons, is simply hold our noses and get on with it.
>
>      I cannot resist the temptation to point out that in a variety of
>      other
>      contexts, the fact of a public forum has led to content
>      discrimination
>      (assuming that a broad Free Speech analysis is in fact
>      appropriate,
>      something that I am not prepared to grant or concede), that is,
>      treating
>      religious speech differently than other kinds of speech.
>      McCullom,
>      Engel, Schempp, Lee and other cases come to mind.  This fact of
>      public
>      forum leads me to question an "absolutist" analysis, quite apart
>      from
>      the textual signals embedded in the language of the Religion
>      Clauses
>      that point away from an absolutist-Free Speech analysis when
>      religious
>      speech is involved.
>
>      Ultimately whether the public forum factor justifies an
>      "endorsement"
>      test or a "coercion" test, or some other hopefully functional
>      test,
>      there is something different about religion and religious
>      speech.  I
>      would go so far as to argue that the difference obtains quite
>      without
>      regard to the presence vel non of a public forum.  But *that* is
>      clearly
>      another discussion to be undertaken sometime later,  (Especially
>      after I
>      can get this piece finished and published and hopefully move the
>      debate
>      to a somewhat different place -- the social, cultural and legal
>      power of
>      religion.)
>