Is First Amendment viewpoint-discriminatory against antigayspeech?
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Nov 7 15:28:53 PST 2007
Help me out here: The major purveyors of informal violence --
murders, robberies, assaults, and the like -- are *not* street thugs?
Who are they then? The Phelps crowd? Politically motivated right-wing
activists?
(I should say that as to one important class of informal
violence, which is rape, bedroom thugs -- date-rapists -- are a more
major purveyor than street thugs; but street thugs are a major category
even there, and *the* major category as to the other kinds of violence.)
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 2:13 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
> No, the major purveyors are not street thugs.
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Volokh, Eugene
> Sent: Wednesday, November 07, 2007 4:59 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
>
> The major purveyors of informal violence are street thugs.
> Politically motivated violence, whether motivated by left
> ideologies (anarchism, labor extremism, the Weather
> Underground, the Black Panthers, the Black Muslims) or right
> ideologies (racism, anti-gay ideology when hostility to
> homosexuals was a matter of ideology rather than as a matter
> of social routine, as it has often been in the past), is
> fortunately pretty rare. Whether one categories violence
> that's partly influenced by general praise of violence and of
> violent lifestyles -- for instance, the violence that is
> glamorized by some rap music -- as "left," "right," or
> something else is an exercise left to the reader.
>
> 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 12:32 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigayspeech?
> >
> > Formal violence = violence perpetrated by the state,
> typically through
> > the forms and the processes of the criminal law, but not
> exclusively
> > so, of course. (The easiest example being violence perpetrated
> > through the use of military force.)
> >
> > Informal violence = lynching, cross-burnings, assassinations,
> > vigilante "justice," gay-bashing, and the like. The state
> may support
> > or condone such violence, but informal violence is not
> conduced by the
> > formal instrumentalities of the state, enforcement of criminal
> > sanctions, police enforcement, military force, or otherwise.
> >
> > The political right is far more guilty of informal violence
> than the
> > political left is. Just think about who the major purveyors of
> > informal violence have been throughout our history. One
> could start
> > with the Ku Klux Klan, clearly a right-wing outfit. Think
> about those
> > who indulged in mob violence against African-Americans and
> gays. The
> > rhetoric of those mob attacks is hardly the language of the
> political
> > left.
> >
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Esenberg,
> > Richard
> > Sent: Tuesday, November 06, 2007 8:31 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigayspeech?
> >
> > "Violence is visited far more by those on the political
> right on those
> > on the political left than is the reverse case."
> >
> > What do mean by "violence, formal and informal. In contemporary
> > America, direct political violence is, thankfully, relatively rare
> > unless you define violence in a way that departs from its customary
> > usage. Perhaps the idea is that political rhetoric leads to
> criminal
> > activity by others, but the notion that this happens to any
> > substantial degree (as well as the assertion that violence,
> however we
> > may define it, is a disproportionately a malady of the political
> > right) do not strike me as self evident.
> >
> > I suppose that you can always argue for the special protection of
> > those we regard as discrete, insular and socially
> disadvantaged, but
> > isn't it hard to do that without some notion of what type
> of criticism
> > (or verbal
> > attacks) are permissible. If gays are in, how about fundamentalist
> > Christians and Muslims who also feel put upon by the larger
> society.
> > How about Jews? Need we have special concern about rhetoric
> denouncing
> > the "Jewish lobby"? After a few easy cases (and maybe not even that
> > many), I think it's hard to make distinctions like this without
> > advancing a judgment that is either entirely subjective or
> based upon
> > ideological presuppositions.
> >
> > But even if that's not the case, what about the impact of an
> > asymmetric rule that reflects this supposed ideological asymmetry?
> > Don't we expect rules to affect the behavior that they govern? To
> > paraphrase Scalia in R.A.V., if we allow one side to fight
> freestyle
> > while the other must follow the Marquis of Queensbury
> rules, isn't it
> > almost certain that, human nature being what it is, those who can
> > fight freestyle will?
> >
> > Rick Esenberg
> > Marquette University Law School
> >
> >
> >
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu
> > [religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> > [VOLOKH at law.ucla.edu]
> > Sent: Monday, November 05, 2007 9:43 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).
> > > > > _______________________________________________
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> > > > > _______________________________________________
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> > > > _______________________________________________
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