Proposed exception for hate speech against religious groups and against conduct-defined groups

[Vance R. Koven]

At 11:57 PM -0700 6/24/01, Volokh, Eugene wrote:
>So, again trying to focus more on the list topic, let me ask:  How
>exactly would this new category of speech that the government could
>suppress be defined, especially when it comes to hate speech against
>*religious* groups, or groups defined by conduct that some religions
>consider immoral?
>
>         Maybe if we see such a definition, then some of us will
>indeed agree that it's suitably narrow, and that its boundaries are
>justified in a way that wouldn't equally justify suppression of a
>broader range of speech.

This thread seems to have drifted rather far from what I considered
to be a fairly modest proposal about the taxonomy of religious speech.

For the record: I never suggested that religious speech should not be
protected; I only wondered if certain types of "speech" in religious
contexts ought to be examined not under the speech clause but under
the religion clauses. The point was that certain forms of expression
that nowadays fall under the rubric of "speech" were "iconic":
instruments of liturgy rather than conveyors of verbal meaning.
Examples: displaying a cross; bowing toward Mecca; wearing a
yarmulke;
"ourFatherwhoartinheavenhallowedbethynamethykingdomcomethywillbedoneonearthasitisinheaven..."

Light is either a wave or a particle, depending on the context in
which it is observed. Speech too can be speech or something else
depending on the context in which it is used. Religious speech
should, it seems to me, be protected under either or both the speech
and religion clauses depending on what it is and how it's used. Truly
iconic expressions might be better understood under the religion
clauses than as pure speech, although I fully acknowledge Eugene's
point (which I raised myself) that courts would have a hard time
making sensible distinctions. The purpose, however, is not to
suppress anything, but to analyze the range of interests that
government (as the proxy for the wider society) can offset against
religious *conduct.* As Paul Finkelman pointed out, there are reasons
to believe that the different phrases used in the First Amendment had
at one time or another distinct meanings, and I'm fully aware that
case law under the Constitution has tended to erase any such
distinctions. I'm not fully persuaded that this erasure was entirely
a good thing.

I'm as distressed as Eugene is at the ramifications of a "hate
speech" exception to free speech protection, because I think it
involves suppressing speech based on the ideas it conveys. It is
useful to contrast this with incitement to imminent violence, which I
think is an example of treating speech as conduct, like throwing a
Molotov cocktail. Some--by no means all, or even most--religious
"speech" can, I still think, be looked at the same way, which I
believe achieves analytical clarity by understanding that what it
really is is a determination that some kinds of communication get
protected, if anywhere, elsewhere than under the free speech clause.

--
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*Vance R. Koven  Counselor at Law    20 Park Plaza Ste. 633   Boston MA 02116*
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