Is First Amendment viewpoint-discriminatory against antigayspeech?
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Nov 7 14:02:00 PST 2007
Well, Michael can disagree with my framing of the question; but
the question still remains: If he's right that the Phelpsians' speech
can be suppressed in the name of protecting gays, then wouldn't speech
by traditionalist Catholics, Protestants, Muslims, and Jews who condemn
homosexuality -- speech that is not nearly as nasty on its face, but
that is doubtless more dangerous in its effect -- be equally
prohibitable? I'd still like to hear where Michael stands on that
issue.
As best I can read the logic of his analysis, then indeed such
speech, including those religious groups' basic teaching (including
literally quoting and endorsing the relevant passages from the Bible)
could be outlawed. He and some others might think that's good. But I
just think it's important to recognize that that's the logical
implication of his argument.
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Newsom Michael
> Sent: Wednesday, November 07, 2007 12:22 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
> First, he who frames the question controls the discourse. I
> wish to emphasize both the reality and the asymmetry of
> violence, both formal and informal, visited upon discrete
> insular minorities. You wish to emphasize speech, without
> regard, or at least much regard to the consequences of that
> speech. We are going to have a difficult time bridging this gap.
>
> Second, I would not say that the speech at issue here "indirectly"
> promotes violence against ostracized groups. I believe it is
> a clever strategy intentionally designed to promote violence.
> I don't know what "facially polite" means. The question is
> the promotion of violence, promoted politely or otherwise.
>
> 3. History and experience teach us to worry much more about
> the right than the left when it comes to violence directed
> against insular and discrete minorities, like gays and
> African Americans.
>
> 4. The question, of course, is who is entitled to the greater
> protection, in the event of a conflict: victims of violence
> or mainstream (or not so mainstream) religious groups. See
> point 1 above.
> We have different priorities and interests. I strongly prefer mine.
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Volokh, Eugene
> Sent: Monday, November 05, 2007 10:43 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
>
> Well, let me probe again the question I raised in the
> post below (which Michael quotes). I take it that to the
> extent that speech can be punished because it indirectly
> promotes violence -- which is to say, to the extent that
> Brandenburg v. Ohio is overruled, at least when speech comes
> from "the political right" (and Phelps' anti-American,
> antipatriotic speech is treated as being of "the political
> right") -- we should worry much more about facially polite
> speech by mainstream religious groups and mainstream
> religious leaders than about facially extremely rude speech
> by the extremely marginal. No-one much listens to Phelps,
> and the very extremism of both his manner and his message
> undermines him, and makes it highly unlikely that his speech
> will actually foment violence. On the other hand,
> condemnation of homosexuality, even in facially peaceful
> tones and with peaceful messages -- for instance, by the
> Catholic Church, by orthodox Muslim or Jewish denominations,
> or by many traditionalist Protestants -- probably does
> indirectly promote violence against gays. The speakers may
> not intend that, but surely the effects of their speech are
> much more harmful to gays than the effects of Phelps' speech.
>
> Under Michael's rationale, then, it seems to me that a
> ban on mainstream religious teachings that promote hostility
> towards homosexuality (even if they don't on their face or in
> their intentions call for violence against homosexuals) would
> be perfectly
> constitutional: Recognition of gay rights would lead, and
> should lead, to suppression of traditionalist religious
> groups' right to promote their religious beliefs. Or am I mistaken?
>
> Eugene
>
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom
> > Michael
> > Sent: Monday, November 05, 2007 3:03 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigayspeech?
> >
> > Let me make two related points.
> >
> > 1. People who dislike Phelps' group may do so for a variety of
> > reasons, some reasons being principled, some being tactical or
> > strategic only.
> >
> > 2. There is a powerful psychological link between gays and the
> > Phelps group's conduct at the funeral of fallen warriors, and it is
> > this: an anti-gay backlash could result because if it weren't for
> > gays, or the "gay agenda," whatever that is, Phelps'
> > group would not be causing such pain and harm. In other words, gay
> > people may well be the target. Gay people might be viewed as the
> > cause of the outrageous behavior at funerals. Have any of
> the families
> > who have been affronted said anything positive about gays?
> And if so,
> > how often has this happened?
> >
> > The connection between the two points is clear: a tactical
> objection
> > to the Phelps group might merely be that its behavior is
> not the best
> > way
> > -- in the view of the tactical objector -- to stir up an anti-gay
> > backlash.
> >
> > I make a similar point in a forthcoming article: liberal
> evangelical
> > Protestants (and this includes secular rationalist
> Protestants) might
> > have a complex, but essentially tactical objection to proselytizing
> > techniques employed by pietistic evangelical Protestants:
> namely that
> > while it is good that such proselytizing might bring
> non-Protestants
> > into the pan-Protestant nomos, such proselytizing
> thereafter becomes
> > counterproductive from the point of view of liberal evangelical
> > Protestants because they believe -- rationalists that they are, or
> > tend to be -- that conversion of the mind is the only way that they
> > will build up their numbers, and the appeals of pietistic
> evangelical
> > Protestants, with their emphasis on the heart and the soul, hinder
> > conversion of the mind.
> >
> > I can't really respond to Eugene's proposed perspective
> because I do
> > not think that we agree as to what is at stake.
> > There is an ideological asymmetry in the fact and experience of
> > violence, both formal and informal, in the United States.
> > Violence is visited far more by those on the political
> right on those
> > on the political left than is the reverse case.
> > (This is so, in my opinion, because the political right is largely
> > united in its views on race whereas the political left is
> more often
> > than not divided. The political right has greater cohesion,
> > therefore, which enables it better to practice violence
> against those
> > that it dislikes. There are, of course, other factors that
> contribute
> > to the asymmetry, not least of which might be that Americans lean
> > towards the political right, and not the left.)
> >
> > Stimulating violence against African-Americans or against gays,
> > longtime victims of such violence, calling directly or indirectly,
> > overtly or covertly, for the use or application of
> violence, given the
> > reality of the patterns of violence in America, is not
> something that
> > ought to be protected under the banner of "free speech."
> >
> > I can't read the First Amendment as privileging bullying or worse.
> > The speech-conduct distinction can be easily manipulated to
> encourage
> > bullying and the like. By the same token it can be manipulated to
> > discourage such behavior. I prefer the second course, not
> the first.
> > I am not saying that Eugene means to encourage bullying, but the
> > practical consequences of his approach might lead to that
> unfortunate
> > result.
> >
> > The relevance of Romer and Lawrence is, in my view, this:
> > the cases attempt, among other things, to hold the line against
> > fomenting violence
> > -- both formal and informal -- against gay people.
> >
> > I share the views of many who have spoken on the Westboro matter
> > arguing that we ought to be able to protect mourning and grief from
> > the likes of the Phelps group. Indeed, I have said so myself in so
> > many words. But, above and beyond that, I think that the
> real target
> > of the Phelps group is gay people, and that real desire is
> to foment
> > an anti-gay backlash.
> > It is the second point that I had failed to make in earlier
> posts and
> > I wish to correct that mistake now. The real issue is violence --
> > formal or informal -- against gays and whether the First Amendment
> > gets in the way of trying to contain such violence.
> >
> >
> >
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh,
> > Eugene
> > Sent: Friday, November 02, 2007 6:47 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigayspeech?
> >
> >
> > OK, let me present it from a different perspective:
> > Many traditionalist Christians have argued that civil
> rights victories
> > for the gay rights movement mean losses for traditionalist
> Christians
> > -- in particular, loss of free speech and the right to spread their
> > religious views. Many have responded that this isn't so, or is at
> > least
> > overstated: That of course Christians can keep their free speech
> > rights and the rights to spread their religious views, and gays and
> > lesbians can have the right to sexual autonomy, the right to marry
> > free of government constraint, and so on.
> >
> > But I take it that Michael disagrees: His view is that
> Romer and
> > Lawrence should indeed lead the Court to uphold restrictions on
> > antigay speech, which I take it would include antigay religious
> > teachings. Moreover, I take it that the assertedly compelling
> > government interest in protecting gays is *much* more
> jeopardized by
> > mainstream antigay teachings (even when they are comparatively
> > politely framed), from groups such as traditionalist Protestants,
> > Catholics, Muslims, and orthodox Jews, than by Phelps' gang
> of kooks
> > (which if anything would lead to some extra sympathy for
> gay rights,
> > by tying extremist antigay bigotry to extreme
> anti-Americanism). So
> > under his rationale, the Court should uphold general bans on
> > anti-gay-rights teachings, including religious teachings.
> >
> > If that's right, then weren't the traditionalist
> Christian views who
> > complained about the gay rights movement, and in particular
> about the
> > indirect consequences of its validation in cases such as Romer and
> > Lawrence, quite prescient? If Michael's views are to
> prevail, then it
> > really is a question of choosing whose rights we protect --
> the sexual
> > autonomy and equality of gays and lesbians, or the free
> speech and the
> > religious speech rights of traditionalist Christians. When
> the first
> > group wins, the second loses (again, if Michael's views are to be
> > accepted).
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom
> > > Michael
> > > Sent: Friday, November 02, 2007 12:41 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > > antigay speech
> > >
> > > No, not remarkable.
> > >
> > > Viewpoint neutrality is a chimera and an illusion, in my
> > opinion. I
> > > do agree that the Court is not likely to agree, but that
> > does not mean
> > > that the Court is right, but merely that the Court has spoken --
> > > wrongheadedly.
> > >
> > > -----Original Message-----
> > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh,
> > > Eugene
> > > Sent: Friday, November 02, 2007 2:56 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > > antigay speech
> > >
> > >
> > > Wow, that really is a remarkable First Amendment
> > > position: The government is constitutionally permitted to
> > ban antigay
> > > speech (all antigay speech? some antigay speech?
> > > only antigay speech at funerals?), but I take it constitutionally
> > > forbidden from banning progay speech, anticapitalist speech,
> > > anti-Christian speech, and so on.
> > > Might as well chuck all the Court's pretensions to viewpoint
> > > neutrality out the window if that sort of exception is accepted
> > > (though fortunately I can't count a single vote for it on today's
> > > Court).
> > >
> > > Eugene
> > >
> > > > -----Original Message-----
> > > > From: religionlaw-bounces at lists.ucla.edu
> > > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom
> > > > Michael
> > > > Sent: Friday, November 02, 2007 11:29 AM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: Is First Amendment
> viewpoint-discriminatory against
> > > > antigay speech
> > > >
> > > > David has it right: a compelling governmental interest in
> > > protecting a
> > > > discrete and insular minority -- one that is routinely
> victimized.
> > > >
> > > > -----Original Message-----
> > > > From: religionlaw-bounces at lists.ucla.edu
> > > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> > David Cruz
> > > > Sent: Thursday, November 01, 2007 8:12 PM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: Is First Amendment
> viewpoint-discriminatory against
> > > > antigay speech
> > > >
> > > > I too found that comment a little cryptic. If Michael
> > meant to be
> > > > doctrinal rather than just attitudinally predictive, my
> > > guess would be
> > > > that he didn't mean that a different First Amendment rule
> > > would apply,
> > > > but that those decisions might somehow justify a
> conclusion that
> > > > there's a compelling governmental interest present. But it
> > > wasn't at
> > > > all clear to me, so perhaps Michael might clarify.
> > > >
> > > > David B. Cruz
> > > > Professor of Law
> > > > University of Southern California Gould School of Law Los
> > > Angeles, CA
> > > > 90089-0071 U.S.A.
> > > >
> > > > -----Original Message-----
> > > > From: religionlaw-bounces at lists.ucla.edu
> > > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf
> Of Volokh,
> > > > Eugene
> > > > Sent: Thursday, November 01, 2007 4:43 PM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: Is First Amendment viewpoint-discriminatory
> > > against antigay
> > > > speech
> > > >
> > > > I'm puzzled -- do Romer and Lawrence really
> justify not just
> > > > protection of gays against governmental discrimination, but a
> > > > different First Amendment rule for antigay speech than for
> > > > pro-gay-rights speech or a wide range of other speech?
> > > >
> > > > Eugene
> > > >
> > > > Michael Newsom writes:
> > > >
> > > > > That said, I have no idea of what the Court would do with
> > > > this case,
> > > > > but my guess is that the Court would overturn the jury
> > > verdict 5-4,
> > > > > although Kennedy, on the strength of Romer and Lawrence,
> > > might vote
> > > > > with the moderates and the case would come out the other
> > > > way, 5-4 to
> > > > > uphold the jury verdict (although the punitive
> damages might be
> > > > > reduced, the Court likely to send a signal, I think, in
> > > the Valdez
> > > > > case that it is prepared to rein in punitive damages).
> > > > _______________________________________________
> > > > To post, send message to Religionlaw at lists.ucla.edu To
> subscribe,
> > > > unsubscribe, change options, or get password, see
> > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > > >
> > > > Please note that messages sent to this large list cannot be
> > > viewed as
> > > > private. Anyone can subscribe to the list and read
> > > messages that are
> > > > posted; people can read the Web archives; and list members can
> > > > (rightly or wrongly) forward the messages to others.
> > > >
> > > > _______________________________________________
> > > > To post, send message to Religionlaw at lists.ucla.edu To
> subscribe,
> > > > unsubscribe, change options, or get password, see
> > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > > >
> > > > Please note that messages sent to this large list cannot be
> > > viewed as
> > > > private. Anyone can subscribe to the list and read
> > > messages that are
> > > > posted; people can read the Web archives; and list members can
> > > > (rightly or wrongly) forward the messages to others.
> > > >
> > > > _______________________________________________
> > > > To post, send message to Religionlaw at lists.ucla.edu To
> subscribe,
> > > > unsubscribe, change options, or get password, see
> > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > > >
> > > > Please note that messages sent to this large list cannot be
> > > viewed as
> > > > private. Anyone can subscribe to the list and read
> > > messages that are
> > > > posted; people can read the Web archives; and list members can
> > > > (rightly or wrongly) forward the messages to others.
> > > >
> > > _______________________________________________
> > > To post, send message to Religionlaw at lists.ucla.edu To subscribe,
> > > unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > >
> > > Please note that messages sent to this large list cannot be
> > viewed as
> > > private. Anyone can subscribe to the list and read
> > messages that are
> > > posted; people can read the Web archives; and list members can
> > > (rightly or wrongly) forward the messages to others.
> > >
> > > _______________________________________________
> > > To post, send message to Religionlaw at lists.ucla.edu To subscribe,
> > > unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > >
> > > Please note that messages sent to this large list cannot be
> > viewed as
> > > private. Anyone can subscribe to the list and read
> > messages that are
> > > posted; people can read the Web archives; and list members can
> > > (rightly or wrongly) forward the messages to others.
> > >
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu To subscribe,
> > unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot be
> viewed as
> > private. Anyone can subscribe to the list and read
> messages that are
> > posted; people can read the Web archives; and list members can
> > (rightly or wrongly) forward the messages to others.
> >
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu To subscribe,
> > unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot be
> viewed as
> > private. Anyone can subscribe to the list and read
> messages that are
> > posted; people can read the Web archives; and list members can
> > (rightly or wrongly) forward the messages to others.
> >
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu To
> subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others.
>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu To
> subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others.
>
More information about the Religionlaw
mailing list