ADVOCACY OF PUBLIC REJECTION

[Michael deHaven Newsom]

I wonder whether the setting or the context of the speech that Eugene
would allow might matter?  I am not sure, for once, mirabile dictu, that
I disagree with Eugene that much on this point.  My concern is one for
context.  I would be interested in Eugene's views on that matter.  I
agree with him that the distinctions are likely to be gossamer at best.
But grounding Eugene's point in context might strengthen it.

For what it is worth, I think that proper speech has to be specifically
related somehow to the bad things complained of.  I wonder if this
resolution meets that test.

"Volokh, Eugene" wrote:

>
>
>         Not so hypothetical, of course; the Board's statements
> specifically condemned religious groups.  One statement read:
>
> Supervisor Leslie Katz denounces your hateful rhetoric
> against gays, lesbians and transgendered people.
> What happened to Matthew Shepard is in part due to
> the message being espoused by your groups that
> gays and lesbians are not worthy of the most basic
> equal rights and treatment.
> It is not an exaggeration to say that there is a direct
> correlation between these acts of discrimination,
> such as when gays and lesbians are called sinful and
> when major religious organizations say they can
> change if they tried, and the horrible crimes committed
> against gays and lesbians.
>
> Another
>
> call[ed] for the Religious Right to take accountability for
> the impact of their long-standing rhetoric denouncing gays
> and lesbians, which leads to a climate of mistrust and discrimination
> that can open the door to horrible crimes such as those
> committed against Mr. Gaither.
>
> (The third apparently didn't mention religious organizations as such.)
>
>                 My view is that government officials must be able to
> point both to misconduct and good conduct by religious groups, whether
> Islamic, fundamentalist Christian, or whatever else.  When religious
> groups do things, whether good or bad, they become proper subjects for
> criticism and praise, whether by private speakers or governmental
> ones.  And this is true even though such criticism or praise might in
> some measure be interpreted as disapproval or endorsement of the
> groups.  At the same time, I recognize that the existing endorsement
> test might indeed condemn such speech, and that it may be hard to
> distinguish speech that should be permissible criticism or praise from
> speech that should be unconstitutional disapproval or endorsement
> (surely the labels themselves alone won't do it, and other
> distinctions that come to mind, such as a distinction between praise
> of a group's theology and of its actions or public statements, seem
> pretty gossamer).
>
>                 Eugene
>
>      -----Original Message-----
>      From:   Scarberry, Mark [SMTP:Mark.Scarberry at PEPPERDINE.EDU]
>      Sent:   Friday, January 18, 2002 10:46 AM
>      To:     RELIGIONLAW at listserv.ucla.edu
>      Subject:        Re: ADVOCACY OF PUBLIC REJECTION
>
>      Suppose the San Francisco Board of Supervisors adopted the
>      following resolution: "(1) We condemn fundamentalist Christians
>      for their hatred of sexual minorities. (2) Fundamentalism in any
>      religion is dangerous. (3) Public spirited citizens will avoid
>      becoming involved with fundamentalist religious groups."
>
>
>      Doesn't this violate Justice O'Connor's endorsement test? This is
>      an endorsement of a view of a particular view of religion, and it
>      attempts to make "outsiders" out of those who have particular
>      kinds of religious faiths. Is the actual resolution adopted by
>      the SF Bd of Supervisors distinguishable? Suppose the Bd adopted
>      only sentence (1)? (2)? (3)? some combination of them?
>
>
>      Mark S. Scarberry
>      Pepperdine University School of Law
>      mark.scarberry at pepperdine.edu
>
>
>       -----Original Message-----
>      From: David E. Guinn [mailto:davideguinn at YAHOO.COM]
>      Sent: Friday, January 18, 2002 6:51 AM
>      To: RELIGIONLAW at listserv.ucla.edu
>      Subject: ADVOCACY OF PUBLIC REJECTION
>
>           I think an interesting question arises in this case (I
>           haven't read the opinion yet):
>
>           Culture War's Latest Round Won by City of San Francisco
>           <http://www.law.com/students/>
>           The Recorder
>           A divided panel of the 9th U.S. Circuit Court of Appeals
>           ruled Wednesday that the San Francisco Board of Supervisors
>           didn't violate the Constitution when it passed resolutions
>           in 1998 criticizing a religious coalition's anti-gay
>           rhetoric. The resolutions were passed after the coalition
>           took out a full-page newspaper advertisement criticizing all
>           forms of sexual "sin," including homosexual and premarital
>           sex.
>
>
>           ******
>           The Rev. Donal Wildman and the American Family Association
>           were violently attacked back in the 1980s (very unfairly, I
>           thought, by such respectable sources as the NY Times, etc.)
>           when they advocated that television stations refuse to
>           broadcast certain programs like "Married With Children"  and
>           that consumers should boycott advertizers on those programs.
>           (They were not advocating legal censure - merely seeking
>           public condemnation.)  It is interesting that when the shoe
>           is on the other foot (i.e. somebody criticizes their
>           position and advocates that their position not be accepted
>           for broadcast) they sue.
>
>
>           If religion takes a public stand on a controversial issue of
>           public concern - should they be free from counter argument
>           by those holding different views?  Does it matter that the
>           opinion is expressed by a government entity?  Would we say
>           the same thing if the speaker was a non-religious group
>           (i.e. should the government not criticize the KKK or el
>           Queda - or even the Boy Scouts)?
>
>
>           David
>
>           David E. Guinn, JD, PhD
>           5032 N. Glenwood Ave. #3
>           Chicago, IL 60640
>           (773) 334-7223
>
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