Is First Amendment viewpoint-discriminatory against antigayspeech?

[Scott Idleman]

I don't much prefer the use of the terms "left" and "right," largely 
because, while some obviously prefer to employ these terms to describe their 
own views, the terms seem so often to be used perjoratively or to simplify 
or caricature another's political, economic, or social perspectives.

It is one thing to say that someone is a social progressive or a moral 
conservative -- although here, too, there is much room in these labels, 
especially given the variables of time and location -- it is quite another 
to describe in a wholesale fashion another as being on the left or on the 
right.

What I have often found when actually talking face-to-face with 
individuals -- which in my experience is often the best means of overcoming 
any type of "ism" or bigotry -- is that their views on social or economic 
policies are much more complex than I might have supposed and that I would 
be mistaken and disrespectful to refer to their views solely in terms of 
right and left.

In all events, I will look at the Dawson book.

Scott Idleman
Marquette University Law School

----- Original Message ----- 
From: "Newsom Michael" <mnewsom at law.howard.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Wednesday, November 07, 2007 4:33 PM
Subject: RE: Is First Amendment viewpoint-discriminatory against 
antigayspeech?


>
> You make some rather sweeping claims regarding the use of the terms
> "left" and "right."  I would appreciate any authority to which you could
> refer me that might support those claims.
>
> I don't think that any of the claims that you make are defensible, but I
> am open to persuasion by respectable authority on one or more of them.
> Speaking of authority, you might want to take a look at Michael Dawson,
> Black Visions which shows, in my opinion, that the terms do have
> substance and coherence.  Certainly in the crucible of race the terms
> do, as Dawson argues. If you recall, I indicated that the major
> difference between the left and the American political and ideological
> right was that the latter largely had a consensus view of race whereas
> the American left did not.  I made the point deliberately and with a
> fair amount of thought beforehand.
>
> If you like, I can explain my views of the Civil War off list.  I do not
> see the conundrum that you do.
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scott Idleman
> Sent: Wednesday, November 07, 2007 5:05 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Is First Amendment viewpoint-discriminatory against
> antigayspeech?
>
>
> It seems that the use of the words "left" and "right," in some of the
> recent
> posts, is both very controlling of the discourse and, quite possibly,
> tautological.  Indeed, I get the sense that these terms are being used
> as
> labels to define, after-the-fact, those whose sociopolitical
> philosophies
> yield certain outcomes, rather than those who adhere to certain
> philosophical views.  In other words, "the right" categorizes
> after-the-fact
> those persons or perspectives that generate a lot of violence as defined
> by
> Professor Newsom, while "the left" categorizes after-the-fact those
> persons
> or perspectives that generate relatively little violence as defined by
> Professor Newsom.  In this sense, the distinction may be ideologically
> useful, but it is analytically (or pragmatically) unhelpful.
>
> The distinction, or its use, is also very ahistorical.  It is employed
> entirely in retrospect, with arguably little regard for the
> circumstances
> and perspectives of the time.  The framers, at the time, were in many
> respects progressives, even radicals, but they are presently viewed by
> some
> as privileged racists -- I think they would be considered perpetrators
> of
> violence under Professor Newsom's model -- who are not deserving of
> admiration, much less having public schools named after them.  And what
> of
> the Union under President Lincoln?  It waged the bloodiest war, and
> singularly most destructive domestic campaign, in the name of
> progressive
> ends.  Was it an act of the "right" -- as it sought the conservatist end
> of
> maintaining the geopolitical boundaries and constitutional structure of
> the
> nation -- or was it an act of the "left" -- as it sought to end slavery
> and
> create a better nation?
>
> I also get the sense that the term "violence" is being used to describe,
>
> selectively, policies or conduct that disproportionately or
> intentionally
> visit burdens upon marginal groups.  But again that's an invitation to
> tautology, or at least after-the-fact labeling.  Isn't taxation, backed
> up
> by the coercive force of the state (including the use of the criminal
> law),
> a form of violence or an act that carries with it the threat of
> violence?
> If so, why aren't liberal policies of redistribution-via-taxation
> policies
> of violence?  Why aren't compulsory schooling, vaccination requirements,
> and
> mandatory sensistivity training--and the list goes on--similarly forms
> of
> violence?  If they are not considered such, I think it is only because
> of a
> selective use of the term "violence."
>
> I don't get the sense that Professor Volokh and others are trying to
> control
> the discourse as much as they are trying to apply reason to difficult
> questions that arise in society and, eventually, in the legal system.  I
> do
> think, however, that the redefinition and use of loaded terms like
> "violence" is a manipulation of discourse for ideological ends,
> especially
> when others who do not accept or understand such definitions are
> categorically labeled as wrong.
>
> Scott Idleman
> Marquette University Law School
>
>
> ----- Original Message ----- 
> From: "Newsom Michael" <mnewsom at law.howard.edu>
> To: "Law & Religion issues for Law Academics"
> <religionlaw at lists.ucla.edu>
> Sent: Wednesday, November 07, 2007 2:22 PM
> 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).
>>> > > _______________________________________________
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>>> > > _______________________________________________
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>>> > > _______________________________________________
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>>> > _______________________________________________
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>>> _______________________________________________
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>> _______________________________________________
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>> or wrongly) forward the messages to others.
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> _______________________________________________
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