Is First Amendment viewpoint-discriminatory against antigayspeech?

[Newsom Michael]

It does nothing of the sort.  You are ignoring context and setting.  You
always seem to start with abstractions, and I start with context.  That
is why we talk past each other.

-----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 6:27 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is First Amendment viewpoint-discriminatory against
antigayspeech?


	I'm puzzled:  It's relatively unimportant that Michael's
approach would allow the criminalizing of the teaching of standard
traditionalist Catholic, Protestant, Jewish, and Muslim doctrine?  I
would think that this sort of implication would be pretty significant.

	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 2:15 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory 
> against antigayspeech?
> 
> 1. I disagree with your framing because the question as you 
> frame it is relatively unimportant.
> 
> 2. We also need to recognize the logical implications of your 
> argument:
> unwarranted support for bullies and worse. 
> 
> -----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 5:02 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory 
> against antigayspeech?
> 
> 
> 	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).
> > > > > _______________________________________________
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