Is First Amendment viewpoint-discriminatory against antigayspeech?
Volokh, Eugene
VOLOKH at law.ucla.edu
Fri Nov 9 10:24:06 PST 2007
Well, from reading criminology literature, which seems to
suggest that the overwhelming majority of crime relates to gangs, drugs,
felonies, love triangles, and the like, and which offers no evidence
that politically motivated crime is a large fraction of all violence.
(I've taught a seminar on firearms regulation policy, which has chiefly
focused on criminology; this has required me to become pretty familiar
with various crime statistics.)
But it sounds like you have a rival source of information -- can
you point us to it, please? There are, for instance, about 15,000
homicides in the country each year. What fraction do you think is
politically motivated, whether right-wing or left-wing? Is there any
reason to think that it's anything more than a tiny fraction?
As to racism, note in particular that the great majority of
homicide is intrarace. For instance,
http://www.ojp.usdoj.gov/bjs/homicide/tables/ovracetab.htm reports
(recognizing, of course, that one can't tell the offender's race when
the homicide is unsolved) that in 2005 there were 4755 white-on-white
homicides, 934 black-on-white, 4497 black-on-black, and 337
white-on-black. I recognize that there are possible twists here, for
instance with regard to Hispanics both as victims and perpetrators. But
the big picture seems to be that very little of this homicide is likely
to be motivated by racism, whether right-wing racism or left-wing
racism. The Klan and Klan sympathizers, heinous as they are, are a tiny
sliver of the homicide problem. "[T]he major purveyors of informal
violence" against blacks today are those black criminals who prey on
members of their own racial group, not white racists; these numbers show
this for murder, but the same is generally true for other violent crimes
as well.
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 09, 2007 10:09 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
> I don't know where you get your information.
>
> -----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 6:29 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
>
> 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).
> > > > > > _______________________________________________
> > > > > > To post, send message to Religionlaw at lists.ucla.edu To
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> > > > > >
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> > > > > >
> > > > > > _______________________________________________
> > > > > > To post, send message to Religionlaw at lists.ucla.edu To
> > > subscribe,
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> > > > > >
> > > > > > Please note that messages sent to this large list cannot be
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> > > > > > (rightly or wrongly) forward the messages to others.
> > > > > >
> > > > > > _______________________________________________
> > > > > > To post, send message to Religionlaw at lists.ucla.edu To
> > > subscribe,
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> > > > > >
> > > > > > Please note that messages sent to this large list cannot be
> > > > > viewed as
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> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu To
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>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
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