Category: First Amendment

Ira Glasser: Why we need freedom of speech, even if it’s offensive and hateful

January 23, 2023 • 9:20 am

The University of Chicago and some of our faculty are pondering creating an orientation module on free speech for incoming students—a module that’s all too rare but essential, for “progressive” students are beginning to oppose free speech and the First Amendment since some speech is seen as “harmful”, “offensive”, or even “violent.”

I wrote to a few people involved in our campus endeavor and told them this:

This short article by Ira Glasser (former head of the ACLU) is the best concise explanation of why we need the First Amendment that I’ve ever read. It carefully explains why all speech—including “hate speech”–must be protected. Naturally, it appeared in a right-leaning site, Spiked, but that makes no difference.
Were I to construct an orientation for first-year students here, I’d have them read his piece (it also explains why all progress in social justice has required freedom of speech):
https://www.spiked-online.com/2023/01/21/why-we-must-fight-for-the-right-to-hate/
. . . and also watch Christopher Hitchens’s 20-minute defense of free speech; a tour de force of rhetoric:
https://www.youtube.com/watch?v=4Z2uzEM0ugY
Even if you already know all the reasons why free speech—with the few exceptions carved out by the court—is in the Bill of Rights, you should still read this article by the estimable Ira Glasser, head of the American Civil Liberties Union from 1978-2001. I’ve written about him several times, including this interview as well as a blurb for a very good movie about his career, “Mighty Ira.“

Now Glasser has just published a very good piece in Spiked that I highlighted above (naturally it’s on a right-leaning site, for the Progressive Left is not so keen on free speech because it can include “hate speech”). It’s hard to get a defense of free speech published in a liberal place.

Glasser’s message is simple and compelling; click on the screenshot to read it:

The parts of the article essential for a modern student’s introduction to free speech is Glasser’s explanation of not only why “hate speech” must be allowed, but also why progressive social justice of the good type requires freedom of speech.

I’ll give a few excerpts. I hope college administrators can and will use this piece to introduce students to the purpose and meaning of the First Amendment.

This describes why the ACLU defended the racist George Wallace’s right to speak in New York City after the mayor had banned him.

For example, the First Amendment protects the right to free speech and assembly by barring the government from abridging such rights. That is how I was able to stop the mayor of New York from banning George Wallace from speaking in 1968. Why did I do it? Because what if George Wallace had been elected? He had already been elected as governor of Alabama. He was trying to get elected as president (and he had considerable support). If he had gained political power, he would not have hesitated to suppress or punish my speech, or the speech of others I supported.

So I needed an insurance policy. I needed a legally supreme rule that barred him from curbing my speech in case he gained political power. And in order to do that, I needed to stop the then mayor of New York, a liberal whom I supported, from using his power to silence Wallace, a reactionary whom I feared. The two were linked because the antagonist of liberty is always power. And because power is fickle and unpredictable.

In a democracy, you can never know who will have power. So all power must be limited in order to protect liberty, including speech. That’s what liberty is: a legal limit on democratic power. The right to freedom of speech is guaranteed only by limiting the power of any government to abridge it. By defending George Wallace’s right to speak when he doesn’t have power, you insure against his curbing your right to speak should he gain power.

On the two-edged sword of bannng speech:

When Martin Luther King, Jr and his colleagues marched, white and black, hand in hand, in America’s deep South, the majority of residents there found King’s vision of an integrated society deeply offensive and tried, on that ground, to ban his speech.

We may find the two examples vastly different. They are vastly different. But if being offensive was allowed to justify banning speech, and if what is offensive were decided by majority vote, then civil-rights marchers would have been banned in Alabama, just as neo-Nazi marchers would have been banned in Illinois.

Could the two cases have been separated, and decided differently? Consider this: those same neo-Nazi marchers in Skokie were also banned from demonstrating in a park in Chicago, along with rival demonstrators from the Martin Luther King, Jr Association, a civil-rights group. Both were banned, based on the same law. And both bans were struck down by the First Amendment, which bars the government from enforcing such a law. The rights of both groups were thus joined together, even as their goals were diametrically opposed.

There was – indeed there is – no way around that. That is why the price of permitting King to speak in Alabama was to allow Wallace to speak in New York. And the cost of banning Wallace from speaking in New York would have been to allow Alabama to ban King from speaking in Alabama.

Finally, the part that may stir the thought of “progressives” who want to ban offensive speech:

What progressives say they care about most is social justice. And for many progressives, free speech and social justice seem to be antagonists. How, they ask, does defending the right of people to advocate bigotry advance the cause of social justice? In their view, prohibiting speech because its content is bigoted or hateful would seem to advance social justice.

Such speech is a barrier to social justice, they say. Permitting it makes it harder to eradicate the layers of prejudice against women and people of colour that has resulted, and still results, in invidious discrimination and subjugation.

I certainly have no quarrel with the passion to end such discrimination and subjugation. I have spent most of my adult life fighting to do just that, and I believe that although much progress has been made, we are still far away from the day when we can declare that fight definitively won. So opposing the content of racist speech remains vital. But believing that, in order to advance social justice, it is necessary to give the government the power to ban speech is self-defeating. Giving the government this power harms social justice. That’s because, in practice, social justice depends on free speech, and always has.

Historically, in the United States, every fight for social justice began with free speech, depending on speech to initiate and sustain the movement to right wrongs. In the early years of the 20th century, for example, the nascent labour movement critically required (and did not often enjoy) the right to meet, to leaflet, to demonstrate and to picket in order to convert workers’ powerlessness into success against oppressive employers.

Also during the early 20th century, the movement to end the lynching of black people, led by courageous advocates like Ida B Wells, totally depended upon freedom of speech and the right to publish. Without these freedoms, it would not have been able to spread the word about the epidemic of lynchings in the South and to gather and build opposition to it.

Or take the case of Margaret Sanger, the founder of Planned Parenthood. In 1916, she was arrested in New York City nearly every week for distributing informational leaflets on birth control to women victimised and, yes, effectively enslaved by unwanted pregnancies. The beginning of the reproductive-rights movement required freedom of speech the way a new plant requires water and sunlight.

And of course, in our own time, the civil-rights movement could not have ended legalised racial subjugation without freedom of speech. The First Amendment protected the early efforts of activists to call attention to the abuses of skin-colour exclusions and build the support needed to end them. In 1955, for example, Rosa Parks sat down on a seat reserved for whites on a Montgomery, Alabama bus, and a then unknown young Baptist minister named Martin Luther King, Jr stood up to support her, by organising a boycott of those buses. None of that would have been possible without the protection of the First Amendment.

If this doesn’t convince people to adhere to First Amendment principles, on or off campus, well, there’s no hope for them.

Here’s a 7-minute clip of Mighty Ira defending freedom of speech on Bill Maher’s show, as well as criticizing the modern ACLU for preferring to defend speech that isn’t “harmful”. The ACLU has undergone a severe erosion of its founding principles since Ira was at the helm:

The Popehat on Free Speech

December 27, 2022 • 10:45 am

I didn’t know that “Popehat” (real name Ken White, a criminal defense attorney and author) has a Substack site, but then again, who doesn’t these days? What makes this all so annoying is that there’s no way to know who has such sites and who doesn’t.

At any rate, I use to read Popehat’s site for free-speech commentary, and now you can go to his site, “The Popehat Report,” which appears to be free. I can’t remember how I found the two articles below, but they’re both worth reading, and you can do that by clicking on the screenshot. I’ll give a brief summary of each.

The article above was written because the quotation in the title is often used to justify new ways to shut down First Amendment speech. In it, White makes two points. First, the exceptions to the First Amendment are well known and haven’t changed in years. Second, the Supreme Court, in its last modification of the First Amendment, said clearly that further changes are unlikely.  In other words, there will be no future amendment that bars hate speech—the subject of much debate these days.

White:

Let’s review the exceptions to government-protected speech, first through the cases and then through a summary:

The Supreme Court has repeatedly listed the First Amendment exceptions. In 2010, in a very important but not particularly well known case called United States v. Stevens, the Supreme Court offered one of its periodic summaries:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).

So, there you have it: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Throw in true threats – which was left out of this list for some reason – and child pornography, and you’ve got the categories. Note that the Court specifically identifies them as well-known and historic, not as in flux.

I was going to add, “What about false advertising?”, but I suspect that it falls under the aegis of “fraud”. Note, too, that “incitement” is not flexible, for it’s been specified this way:

Incitement is a First Amendment exception. But incitement means “speech that is intended, and likely, to cause imminent lawless action.” All of those words mean things, things defined by decades of court decisions. They don’t mean whatever you want them to mean — they specifically don’t mean “saying things that are bad for America on TV.” Might the courts gradually develop their understanding of one of these words – for instance, by developing a broader understanding of “imminence” based on an internet culture? Yes, over time, through a familiar process. But the point is that you must engage the existing law on what “incitement” means to be accurate — you can’t just declare it to mean whatever you want, and expect that to matter in court. The Supreme Court has been saying for almost a century that First Amendment exceptions are “well-defined and narrowly limited.” The fact that the words in the names of the exceptions — like “incitement,” or “threat” — have flexible colloquial meanings does not signify that the legal meaning of those exceptions is flexible. It isn’t.

Note that “fighting words” or “hate speech” do not constitute incitement.  As far as creating new categories, in the U.S. v. Stevens case, the government asked the Supreme Court to carve out a new exception to the First Amendment that prohibits depictions of animal cruelty. The government’s justification was that the court had already created an exception in the form of banning child pornography, so why not another?.  But the Court responded that it didn’t really create an exception, but merely codified what was already a crime—child abuse, seen as inherent in child pornography. The court then said, in an 8-1 decision, that it couldn’t envision any new exceptions:

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them.

As for why this matters, it’s because of what I said above: courts are always under pressure to tighten the rules of free speech (“hate speech” is the latest proposed restriction), but that won’t happen. As White says,

[This] matters because it’s good for Americans to know, and understand, our civil rights and the powers and limitations of our government. We’re bitterly divided as a nation. Much speech is controversial, much speech is despised by someone. We’re under constant pressure to accept new limits on speech. It’s good to argue about these things. But the argument should be reality-based. “The First Amendment isn’t absolute,” used as a justification for new exceptions, and untethered from the law, isn’t reality-based.

And read this one, too (both are fairly short):

 

Here White distinguishes between three construals of “free speech”, which I’ll characterize in my own words (quotes from White are indented).

a.) Free Speech Rights (“FSR”). These are the rights conferred by the First Amendment—that is, all the speech that isn’t prohibited by law (see above). White emphasizes that the exceptions are likely to be pretty much set in stone and will not be modified to include “hate speech”. He argues—and I agree—that knowing some of the history of the courts’ construal of free speech is useful in keeping your arguments on the rails. And it’s useful to be mindful of the philosophy behind FSR, as outlined in the Stevens case ruling mentioned above:

The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

You can’t just argue on utilitarian grounds, then, that new types of speech should be considered violations. The First Amendment is based on deontological principles, not utilitarian ones.

b.) Free Speech Culture (“FSC”). This is the principle that, regardless of the First Amendment, speech venues such as private universities and widespread social-media outfits like Twitter and Facebook would be best served by adhering to First Amendment principles even if they’re not obliged to do so. This is is a utilitarian application of FSR:

The next category is “Free Speech Culture,” or “FSC,” sometimes called “free speech values” or “free speech principles.” An appeal to FSC is based on history, philosophy, and political science. It presumes that it’s a social good to have wide-ranging, robust, uninhibited debate on important issues, though it might reach that conclusion by different roads. Some believe that a “marketplace of ideas” inevitably produces the conclusions best for society, some believe that all speech has inherent value, and some (like me) believe that as a matter of humility and consciousness of our limits we should be should be careful deciding that we are so clearly right that contrary ideas shouldn’t be heard. Ultimately FSC is utilitarian — we use it to debate how we ought to act collectively for the healthiest society and the optimal pursuit of knowledge.

Here’s where we debate not whether a private school has a right to disinvite a controversial speaker, but whether as a matter of academic culture it should. Here’s where most debates about “cancel culture” will fall. Carefully separating out the legal “may” from the philosophical “should” helps clarify the argument.

As White notes, FSC can contradict FSR, as when students shout down a speaker. In most places they have the right to do so, just as the speaker has a right to speak, but application of FSC would mandate that the students shut up, let the speaker talk, and then protest either in the Q&A section or by offering non-disruptive counterspeech. That’s what White argues, and again I agree.

c.) Speech Decency (“SD”).  This is speech that truly is hateful, and while it is legal, and even allowed under FSR and FSC, can still be reprehensible—reprehensible enough that the speaker should be called out on decency grounds. White gives one example involving the n-word:

Finally, some debates about speech are about human decency — Speech Decency, or “SD.” I think sometimes that familiar phrase “hate speech is not free speech” is an appeal to SD. It’s a way of saying that there’s an idealized set of speech that may be controversial or disagreeable but ultimately is not cruel and contemptible, and that racist speech is outside of that set.

This is a perfectly legitimate debate. It’s fine to say that using a racial epithet is usually protected by FSR, that in some circumstances it ought to be protected as a matter of FSC (for instance, in allowing “Huckleberry Finn” to be taught to high school children notwithstanding its use of epithets), and that people who use it to belittle and demean ought to be called out as a matter of SD.

Once again, clarity about values helps illuminate the different rights and different interests in play.

In this case the speaker’s intent is usually vital in determining whether he/she has violated SD and should be called out. Using the n-word didactically, as when teaching Huckleberry Finn, or, as Don McNeil of the NYT did, asking a question about what somebody else said (this led to his firing), is not reprehensible and should not be offensive.  In such cases the language doesn’t violate any of the three construals of speech given above.

Another example is “hate speech”, which can be truly hateful rather than offensive. I would defend your legal right to call me a “Dirty Jew who should be gassed”, and even defend the idea that you should be able to say that on Twitter. But I would find it reprehensible, hateful, and deem you a bigot and an anti-Semite.

White justifies parsing speech into the three distinctions mentioned above, and I agree:

Debates that clearly identify FSR, FSC, and SD are useful and sometimes even illuminating. They have the potential to teach people about their civil rights and about American government. They can persuade our fellow citizens about how to balance different interests, or at least clarify how we reach our personal outcomes on difficult social and cultural questions.

Debates that sloppily conflate FSR, FSC, and SD are counterproductive. They tend to misinform people about American civil rights, especially if the listener is not already sophisticated on the subject. They produce some of the most persistent delusions of free speech discourse — like the imagined right not to be offended or the supposed right not to be criticized.

FFRF further expands mission to disability rights, seen as a church-state issue involving “Christian nationalist ideology”

November 17, 2022 • 9:30 am

Five days ago I wrote about the Freedom From Religion Foundation (FFRF) signing onto an amicus brief in an appeal arguing that a 10-year-old transsexual girl (taking puberty blockers) be allowed to play on her school’s girls’ softball team.  The initial case denied that girl the right to play based on an Indiana state law barring transgender females from student sports teams. Now I have no issue with fighting for a girl that young to be able to play, but the serious problem was that the appeal was trying to overturn the law in general, not just give one young student an athletic right.

In other words, the FFRF was supporting the right of transgender girls and adolescents to play on any public school sports team, even if they were medically untreated or had gone through puberty. Not only is that unfair to women and girls in general (it would spell the end of fair competition in sports up through grade 12), but it’s way outside the remit of the FFRF, which is dedicated to keeping church and state separate, as well as mitigating the harms of religion in American society.  A few of us brought this to the attention of the FFRF, who defended their participation because opposing transgender issues is a religious issue, though not one of the main goals of the FFRF.

I’ll preface this post, which shows the FFRF expanding into realms even more far removed from church-state issues, with the way I began my previous post:

I’ve always been a fan of and a member of the Freedom from Religion Foundation (FFRF). I am on their Honorary Board of Directors, and in 2011 received their “Emperor Has No Clothes Award”, which as they say is “reserved for public figures who take on the fabled role of the little child in the Hans Christian Andersen fairy tale and ‘tell it like it is’—about religion.” I’ve was very honored with their recognition, and humbled to be added to the many people I admire who have also gotten the gold statue of the naked emperor—a statue made by the same company that makes the Oscars.

Lately, however, the FFRF has crept out of its bailiwick of enforcing separation of church from state, and is, like the ACLU and the SPLC, engaged in matters of social justice. Well, that’s their call, and I wouldn’t beef about it unless I thought they’ve undertaken campaigns that are unwise.

This time, the FFRF is making a push for disability rights. While I’m in favor of disability rights, I don’t see them as connected in any way with the separation of church and state. This latest move, on top of the unwise support for transsexual girls participating in public school sports (especially when they’re post pubescent), shows that the organization is expanding into the realm of social justice, just as the ACLU and SPLC has. In general, I see such an expansion as unwise, especially when it involves misguided stands like those about transgender women athletes.

On to the FFRF’s latest remit. One of my favorite paper magazines/newsletters is the FFRF’s  monthly publication Freethought Today, which is now online. And if you go to pages 2 and 3 of the latest issue, you’ll find two long articles on disability rights and “ableism”: “More discussion needed about ableism, disability” and “Disability rights in post-Roe America.” The second one—the author is Sammi Lawrence—covers a whole page, begins by making a tenuous connection between disability rights and church-state issues. Emphasis below is mine, but notice how she bundles disability rights together with Christian nationalist ideology:

Disability rights are a state/church issue.

While America’s conscience has not consistently recognized this, there are clear ties between the Christian nationalist ideology that pervades legislation and the ongoing reality of stagnant and inadequate disability rights laws. The dangerous theocratic Christian ideology that led to Roe v. Wade being overturned is the same ideology that continues to play a part in the oppression of the 61 million disabled adults across the United States. This ideology has guided both harmful disability rights policy and the dismantling of abortion rights. To put it simply, if you care about disability rights, then you also care about the separation of state and church

It goes on, analogizing disability rights with abortion as issues of “bodily autonomy”, issues supposedly a plank of Christian nationalism:

Ever since Roe v. Wade was overturned, the issue of bodily autonomy has remained at the forefront of people’s minds. Bodily autonomy is the simple concept that individuals should have the right to control what does and does not happen to their bodies. The Christian worldview is often one in which an individual’s bodily autonomy is subject to debate and compromise whenever that autonomy conflicts in any way with Christian ideology. Too often, the individual whose bodily autonomy is up for discussion is not even invited to the debate, let alone given a seat at the metaphorical table. Those who are anti-choice view a person’s body, typically a woman’s body, as the conduit for something “greater,” a vessel that is subject to a god’s will, whether that will be an unwanted pregnancy or a disability.

The author continues with a long defense of rights for the disabled, mentioning from time to time their connection with religion:

The first [aspect of what Lawrence calls the “Christian model of diability”] is that disability is a punishment from God or exists as a means through which God may display his alleged greatness. To provide but a few examples:

“And the Lord said unto him, Who hath made man’s mouth? or who maketh the dumb, or deaf, or the seeing, or the blind? Have not I the Lord?” (Exodus 4:11)

And, my personal favorite, in the book of John, Jesus heals a blind man who was born blind for no other purpose than so Jesus could heal him later: “As [Jesus] went along, he saw a man blind from birth. His disciples asked him, ‘Rabbi, who sinned, this man or his parents, that he was born blind?’ ‘Neither this man nor his parents sinned,’ said Jesus, ‘but this happened so that the works of God might be displayed in him.” (John 9) The disabled person is viewed as morally inferior, as a living warning against disobedience or a walking advertisement for God’s mercy.

This viewpoint is reflected in Christians who insist upon praying for disabled people’s disabilities to go away. Many, if not most, disabled people will at some point have the awkward and condescending experience of some well-meaning Christian wanting to pray to God on their behalf to ask God to “cure” or “fix” their disability.

Well, being blind is something that most people would regard as a handicap, a “disability”. (I know, the new term is “differently abled”.) As for the prayer, that’s okay so long as we realize it doesn’t work and so long as you don’t hector the disabled with religious stuff like prayer.

Lawrence emphasizes that disabilities aren’t caused by supernatural factors. That they are the result of natural factors falls under what Lawerence calls the “medical model of disability”, a view that few rational people hold:

The Medical Model asserts that disability is always “bad.” It is an abnormality that must be fixed or cured. Under this model, health care professionals, and authority figures generally,hold the exclusive power to cure, fix or accommodate a disability. Disabled people are told that they do not know what is best for themselves, that their input in their own treatment, accommodations and life choices are unnecessary and unpersuasive, and that they should be content with the choices that are made for them.

I would argue that yes, disabilities are in general bad, and most who have them would make them go away if they could. But I don’t know many people who argue that disabled people are hectored to be cured rather than being offered help (if help exists).

Lawrence’s own view is the one held by those of us with a rational mind, including the religious (is that an oxymoron?):

In contrast, contemporary disability advocates reject the Medical Model in favor of viewing disability as something that is neither morally good nor bad. Disability is simply one facet of an individual’s identity and a key component of how they socialize with the world. The disabled individual should, to the greatest extent possible, be in charge of their own life and medical decisions and be granted the same bodily autonomy that any other non-disabled person would be granted.

Nobody but some non-Christians would say that disabilities are MORALLY bad, anyway, but who could disagree with Lawrence here? Although I have my issues with deaf people deciding not to deal with the deafness of their children so as to perpetuate “deaf culture”, that’s only tangential.

So Lawrence, who is disabled, advocates ably for the rights of other disabled people. The problem is that this is an issue for disabiity rights organizations, not an organization devoted to religious and Church-State issues. After all, the “Medical Model” really has nothing to do with religion, and as I note below, the connection forged between disability rights and Christian nationalism is unconvincing and poorly confected.

So I wrote to Dan Barker (also mentioning the transgender “mission creep” of the FFRF), and here’s part of my email:

. . . . I saw that the FFRF used this same argument for disability rights in the latest issue of your newsletter. The first three pages of the newsletter contain nearly two pages of arguments about disability rights, and one of them makes this argument (my emphasis):

Disability rights are a state/church issue.

While America’s conscience has not consistently recognized this, there are clear ties between the Christian nationalist ideology that pervades legislation and the ongoing reality of stagnant and inadequate disability rights laws.The dangerous theocratic Christian ideology that led to Roe v. Wade being overturned is the same ideology that continues to play a part in the oppression of the 61 million disabled adults across the United States. This ideology has guided both harmful disability rights policy and the dismantling of abortion rights. To put it simply, if you care about disability rights, then you also care about the separation of state and church

Now I have no quarrel with fighting for disability rights, but:

a. Disability rights have nothing to do with church-state issues (have you seen evangelists railing against the disabled?)
b. You could say “there are clear ties between the Christian nationalist ideology that pervades American and the ongoing reality of X” (add under “X” your favorite social justice issue).
This, plus the transgender activism that we’ve discussed, makes me worry about “mission creep” of the FFRF: that you’ll dilute your strong efforts at separating church and state with various other aspects of social justice activism. I have nothing against most of that activism (though I do have with transgender participation in sports), but it is after all called the FFRF, and the forces of theocracy, especially in the Supreme Court, are rising again.
If Dan replies, I’m not going to put it here, as his end of the correspondence should be private. All I can say is that I suspect the FFRF will ignore our beefs (several of us wrote him). I also predict that the FFRF will continue to expand into non-religious areas of social justice, justifying them by drawing tenuous connections between religion and the areas chosen.  After all, can you think of any issue that can’t be framed as a “Christian nationalist” one? I just thought of gun rights, and of course you could say that Christian nationalists own more guns than nonbelievers, which is probably the case. And you can probably justify this by showing a history of Christians using and approving of guns (e.g., Lauren Boebert and many other Republicans). But that’s a correlation and not a causation, because the tribalism of Christian nationalism is connected with guns, but not because they’re mentioned in the Bible.

 

I’m writing this post to make people aware of what’s happening at the FFRF. I still love the organization and am a huge fan of Dan Barker and Annie Laurie Gaylor, the co-presidents, but am afraid that the organization is going woke.  One of my friends characterized this creep as a supplement to British historian Robert Conquest’s “laws of politics” (have a look at them). The new law:

 “Any organization that is not explicitly and constitutionally right-wing will sooner or later become left-wing.” In the past 3 years, substitute “woke” for “left-wing.”

FIRE free-speech rankings again put Chicago on top, but Columbia at rock bottom

September 9, 2022 • 12:00 pm

We’re #1 again: in freedom of speech, that is. The Foundation for Individual Rights and Expression, FIRE, has listed its annual free speech rankings, with the lowest numbers going to the best schools. A number of things are assessed in these rankings, including student views (how comfortable they are expressing ideas, acceptability of disruptive conduct, etc.) as well as administrative conduct (speech code ranking, disinvitation, etc.) You can see all the criteria and how they were combined in their rankings summary booklet (download pdf here after filling in your information); the relevant bits for scoring are on pp. 9-12.

The email from Fire noted this:

The past year has shown just how vulnerable the free speech rights of both students and faculty are on America’s college campuses. At Georgetown University, Ilya Shapiro was suspended — over a tweet! — from his new role as senior lecturer and executive director of the Georgetown Center for the Constitution. At American University, eight law students were placed under investigation for debating abortion in the wake of the leaked draft of the Dobbs Supreme Court decision. In both of these cases, FIRE stepped in, defending what these universities did not: freedom of speech. What can prospective college students or their parents do to ensure that they attend a college that respects freedom of speech? 

To see the rankings, click on the link below. I’ll put up to the top 15 and bottom ten schools. Last year we were #2 (I can’t remember who beat us out), but now we’re back on top again. This requires eternal vigilance on the part of the University of Chicago’s administration and faculty, for pressure from both above and below always tries to erode free speech—even here.

Enter FIRE’s 2022-2023 College Free Speech Rankings. We surveyed 45,000 students and examined colleges’ track records on free speech to rank over 200 of America’s top colleges — giving you a straightforward guide to the best colleges for free speech in the country.

Here are the top 15 schools with links to their evaluation pages:

1.) The University of Chicago.

2.) Kansas State University

3.) Purdue University: Main Campus

4.) Mississippi State University

5.) Oklahoma State University

6.) Claremont McKenna College

7.) University of North Carolina at Greensboro

8.) Northern Arizona University

9.) North Carolina State University at Raleigh

10.) Oregon State University

11.) The University of Memphis

12.) The College of William and Mary (my alma mater!)

13.) The University of North Carolina at Charlotte

14.) Arkansas State University: Main Campus

15.) Florida State University

Note that three of the 15 are in North Carolina, and nine are in the South (if you count Oklahoma as “south”). That’s a proportion from the South that I wouldn’t expect.

And the ten worst universities for free speech, with the worst listed first:

203.) Columbia University (!) Get to work, John McWhorter!

202.) University of Pennsylvania

201.) Rensselaer Polytechnic Institute

200.) Georgetown University

199.) Skidmore College

198.) Yale University (!)

197.) Northwestern University

196.) Pitzer College

195.) Scripps College

194.) Santa Clara University 

Here are some other colleges of interest and their rankings:

170.) Harvard University

154.) Cornell University

169.) Princeton University

135.) Oberlin College

115.) Smith College

114.) Brown University

69.) The University of California, Berkeley

Sadly, The Evergreen State University is not listed.

And here are the special points made by FIRE, with the first two already noted above. The chilling of speech mentioned in the third and fourth points are important, which is why our Kalven Report stands as a buttress to Chicago’s Principles of Free Expression.

  • The University of Chicago was the top-ranked school in the College Free Speech Rankings for the second time in three years.

  • Columbia University had, by far, the lowest score in the 2022 College Free Speech Rankings, with a Speech Climate rating of “Abysmal.” The University of Pennsylvania, Rensselaer Polytechnic Institute, Georgetown University, and Skidmore College are also ranked in the bottom five.

  • More than three in five students (63%) expressed worry about damaging their reputation because of someone misunderstanding what they have said or done, and just over one in five (21%) reported that they feel a lot of pressure to avoid discussing controversial topics in their classes. Twenty-two percent reported that they often self-censor.

  • Roughly three in five students reported they would feel discomfort publicly disagreeing with a professor about a controversial topic or expressing an unpopular opinion to their peers on a social media account tied to their name.

Some Walgreen’s employees refuse to sell condoms and birth-control medication because it violates their faith; company says that’s allowed by their rules, but the Supreme Court will rule this fall

July 24, 2022 • 9:15 am

Here are two cases of apparent religious discrimination exercised by employees of the drugstore chain Walgreen’s. I’d like to know what readers think about the legality of these situations, which will probably be decided this fall by the Supreme Court.

According to several sources, including NBC News and USA Today, a Walgreen’s employee in Wisconsin refused to ring up condoms at the checkout counter, and a pharmacy employee at a different Walgreen’s refused to give a women her prescribed birth-control pills—both on religious grounds. Click below to see the two stories:

Click to read about Condomgate:

Below is a tweet by Nathan Pentz, who went to a Walgreen’s in Wisconsin and was embarrassed when the cashier wouldn’t ring up some condoms:

Nathan Pentz tweeted earlier this month that his partner, Jess, went to buy condoms at a store in Hayward because she forgot her birth control. He said when she went to the checkout, the cashier said he would not ring up the condoms, because of his faith.

Pentz also tweeted the couple’s customer service response to Walgreens, which said the employee “embarrass[ed] [her] in front of other customers because of her reproductive choices.”

The thread goes on, and includes an eyewitness who saw the whole thing:

This refusal is apparently company policy:

In a statement to NBC News, a Walgreens spokesperson said its employee’s actions did not violate company policy.

But what if there is no other cashier on duty? Sometimes I go to Walgreen’s to get milk on my way to work, and at about 5:30 there is only one cashier on duty. Or what if every employee refuses services on those grounds?

Now I suppose you could say that the employee was simply exercising his religious freedom. More on that below, but NBC News notes this:

Incidents of faith-based objections in business have received more attention in recent years. In the most prominent example, the Supreme Court ruled in 2018 in favor of a cake-maker who objected to baking a cake for a gay couple, though the court did not address the larger issue of whether businesses can refuse service outright on religious grounds.

In February, the court agreed to hear the case of a web design firm in Colorado that objected to providing services for same-sex marriages. That case will be heard in October.

Pillgate: This incident is even worse because it involves duplicity on the part of a pharmacy. Click to read:

TikTok user Abigail Martin said she has been using birth control for six years. She said she called in her prescription on a Saturday, only to receive a response saying that she was out of refills.

After waiting on hold and receiving no response, Martin said she went into a Walgreens location to talk to the pharmacist.

In a recent TikTok, Martin said the woman at the pharmacy, who she said was wearing two crosses around her neck, looked Martin up and down before saying she couldn’t refill the prescription.

“I said, ‘You won’t refill it or you can’t refill it?’ And she goes, ‘You just need to call your provider,'” Martin said.

After getting confirmation from her provider and a four-day delay on her prescription, Martin said she called Walgreens again and  had her prescription filled.

The four-day delay was apparently imposed by Walgreen’s itself, who said the pills were “out of stock.”  (That was surely a lie.) The woman who refused to provide the pills apparently does this regularly.

Here’s Martin’s TikTok describing the incident (she has nearly a million followers). Do watch it (she begins to break down at the end—the wages of discrimination):

@abigailmartiin

i am so beyond pissed at our country right now. #roevwade #prochoice #womensrights #birthcontrol #vanlife

♬ original sound – Abigail Martin

Below is Walgreen’s policy, which, as you see, allows religious people to refuse to sell certain items BUT the religious person must find someone immediately to sell the item. Pentz was rung up by a manager, but Martin wasn’t even informed of the company policy.  They should at least force the woman wearing the crosses to tell the customer that they will find someone to fill the prescription. And what is Walgreen’s doing delaying the prescription for four days and lying about it being “out of stock”? Company policy should not allow lying.

Now my question, and the question to the readers is “Is this kind of religious-based discrimination against customers/items legal”? After all, the First Amendment guarantees one the right to practice religious freedom. But that is not an unlimited permission: teachers, for example, are not allowed to pray in class because it violates the religious freedom of those who hear it, who might feel coerced. And there are “public accommodation laws”, as in Colorado, which forbids businesses serving the public to discriminate against customers, even on religious grounds.

That Colorado law was the reason why the Supreme Court had to decide a related case, when bakers at the Masterpiece Cake Company in Lakewood, Colorado, refused to bake a wedding cake in 2012 for a legally married same-sex couple, Charlie Craig and David Mullins.

The couple filed a lawsuit and the state court decided in favor of Craig and Mullins. As Wikipedia notes, “the cake shop was ordered not only to provide cakes to same-sex marriages, but to ‘change its company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers.”

Masterpiece appealed, and the appellate court upheld the state court decision: there could be no discrimination against customers, even though the bakery claimed that not making any wedding cakes, which they decided to do, cost them 40% of their business.

The next step was an appeal to the Supreme Court, which ruled, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (the vote was 7-2  with Ginsburg and Sotomayor dissenting), to uphold Masterpiece and strike down the appellate court decision. But the grounds, which did include First Amendment considerations, were not that the bakery discriminated against the customers’ homosexuality. Rather, they ruled that the Colorado Civil Rights Commission itself had shown hostility towards religion. I quote from the court’s majority opinion; bolding is mine:

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The Commission was deemed “not neutral”, ergo a violation of the First Amendment.

Note that the court did not rule whether an individual business serving the public (including Walgreen’s in the cases above) could discriminate among customers based on the faith of the business’s employees. That, said the court, would be left to a future decision.

And that decision will be made this fall, almost surely in favor of allowing businesses to discriminate on religious grounds. Here’s the case that will be decided this fall:

The Supreme Court granted certiorari to 303 Creative LLC v. Elenis in February 2022, which again dealt with Colorado’s anti-discrimination laws as they apply to public businesses. The case concerns a Christian web designer who seeks to make wedding announcement websites for heterosexual couples only. She fears punishment under Colorado’s anti-discrimination law and thus aims to block the law as a violation of her First Amendment rights.

Does anybody doubt that the highly religious Supreme Court will allow this kind of discrimination? And in the case of Walgreen’s or other businesses, it could well rule that if Walgreen’s owner was religious, the entire company would not have to sell birth control to anyone based on religious grounds. They wouldn’t of course, as the public would simply boycott the company to death (there are already calls to boycott Walgreen’s). But this is possible for smaller businesses, and wasn’t settled in the Masterpiece case.

But suppose, for instance, that one’s “religion” allowed other forms of discrimination, say against sex or ethnicity? That would not be allowed under any construal of the Constitution, as it would constitute illegal practice. Why, then, would discrimination on the grounds of religion be permissible? Would restaurants be able to refuse to serve gay customers?

My own view is that if you serve the public, you have to serve them equally, and public good takes precedence over the religious beliefs of a business owner or employee. (Remember, we have a conflict between two constitutional “rights” here.)

As to whether a single employee, as in the condom case above, should be able to decline service but immediately get someone in the business to provide that service, I don’t know. There is no discrimination by the business, but by an employee, and in the end there was no discrimination in sales. Still, can’t a company require its employees, as a condition of employment, to serve all customers equally? Can it fire someone who doesn’t? Or does that requirement violate the First Aendment

These are issues that are legally unresolved, but will be this fall. And, I’m afraid, most of us won’t be happy with the decision.

The infamous Masterpiece Cake Shop:

h/t: Ginger K.

Cathy Young: is she soft on the eroding wall between church and state?

July 6, 2022 • 12:45 pm

The Supreme Court is in the process of remaking American “rights”: prohibiting abortion, allowing people to openly carry handguns in places where that was forbidden, and, in the case of Kennedy v. Bremerton School District, ruling that a public high school football coach who prayed on the 50-yard line after games had a Constitutional right to do so. The vote was, of course, 6-3, the same vote as when the Court allowed taxpayer money to be used to buy vouchers to send kids to religious schools.  The Bremerton opinion was written by Justice Gorsuch, and can be found, along with the dissents, here. (Sotomayor’s dissent is well worth reading.)

Given the religious and Catholic nature of much of the court, and its strong conservative bent, it seems likely we’ll see more disassembling of the wall between church and state that was dictated by the Establishment Clause of the First Amendment—and by its intellectual author, Thomas Jefferson.

This Wall and the Court’s effect on it is the subject of Cathy Young‘s new piece in The Bulwark (a more or less centrist site) which you can read by clicking the screenshot below.  I’ve always found Young thoughtful and sensible, and so I was keen to read her take. This time, though, I don’t really agree with it, as she seems pretty sanguine about the increasing intrusion of religion into government activities.

If you read Sotomayor’s dissent—which has photos, something I’ve never seen in a published decision—you’ll know the privotal issue: were coach Joseph Kennedy’s midfield prayers a personal act, or was it a demonstration that could coerce players, students, and the public into joining him, a behavior that does violate the First Amendment? Six Justices said “no violation,” but the pictures and testimony are pretty convincing otherwise, and back Sotomayor’s words in her dissent:

[Kennedy’s] prayers were intentionally, visually demonstrative to an audience aware of their history and no less captive than the audience in Santa Fe, with spectators watching and some players perhaps engaged in a song, but all waiting to rejoin their coach for a postgame talk. Moreover, Kennedy’s prayers had a greater coercive potential because they were delivered not by a student, but by their coach, who was still on active duty for postgame events

The six members on the other side of the court, religious to a man (and one woman), didn’t seem to have any problem with this. But I do, for if the documentation in Sotomayor’s dissent is correct, there was not only coercion, but a deliberate attempt by Kennedy to mix his Christianity and his public-school football job. It’s a violation of the First Amendment.

Cathy Young does make a point that the wall can be built too high, but she doesn’t seem to be particularly bothered by Bremerton:

And yet before one dismisses Kennedy’s complaints out of hand, it is worth remembering that there is a history of aggressive and illiberal efforts to purge anything with religious themes from the school environment under a misguided reading of strict church/state separation. Thus, high school valedictorians have been forbidden to insert even brief religious references in their graduation remarks, despite the fact that they are not authority figures and are platformed along with many other speakers.

In one particularly ludicrous 1996 incident in New Jersey, a first-grader named Zachary Hood was barred from participating in a classroom exercise in which each student read to the class a short text of his or her choosing because the text he had chosen came from a children’s book of Bible stories (an account of the reunion of estranged brothers Jacob and Esau which made no mention of God or miracles). The federal courts at the time sided with the school district, ruling that to allow Zachary to read the story out loud in front of the class would amount to an impermissible endorsement of the Bible by the public school. However, Zachary and his mother won a settlement in a related case in which a drawing he made was removed from a display of the students’ Thanksgiving art because it was religiously themed. As the Becket Fund, which litigated on Zachary’s behalf, notes on its website, the case resulted in a Department of Education guidance in 2003 stating that “students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions.”

Young is correct here: it’s surely foolish to omit all mention of religion or God in schools: after all, it’s part of our culture, and people need to learn about comparative religion. What cannot happen is that schools cannot endorse one religion—or religion in general, force students to participate in religious exercises, or coerce them to express or adhere to religious sentiments. And what Young describes above doesn’t fall into those categories.

But Young also quotes legal analyst Jeffrey Rosen:

“In an era when religious identity now competes with race, sex and ethnicity as a central aspect of how Americans define themselves, it seems like discrimination—the only unforgivable sin in a multicultural age—to forbid people to express their religious beliefs in an increasingly fractured public sphere.” In that sense, Kennedy v. Bremerton continues a longstanding trend.

True: religion is part of many people’s identity. And the valedictorian above wasn’t doing anything wrong by expressing her belief. But coach Kennedy, who had a long history of coercive prayer in the locker room before he started praying after games, was being coercive, for some testimony says the students felt coerced, and Kennedy invited both his team and their opponents to participate in prayer. If you were on his team, you’d more or less have to. Both that and the “mob scenes” described by Sotomayor go far beyond the trivial incidents described by Young above.

There’s a very good reason to keep that wall of separation high, for there is no ideology so oppressive when it gains power as religion (in fact, that’s what we’re seeing on the Supreme Court now). Religion is arguably the most divisive of human personal beliefs, and that’s why Jefferson was so proud of writing The Virginia Statute for Religious Freedom—the precursor of our First Amendment. He was so proud of it, in fact, that it’s one of the three things he wanted on his gravestone (and NOT the presidency):

From Wikipedia: Jefferson’s tombstone. The inscription, as he stipulated, reads “Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for Religious Freedom, and father of the University of Virginia.”

In the end, after adding religion to the mix of identity politics, and noting that this creates bad behavior by both advocates and opponents of church-state separation, Young winds up with a rather tepid conclusion:

Does Kennedy v. Bremerton take us into new territory when it comes to potential religious coercion in schools? Interestingly, Millhiser and Volokh, who assess the case very differently, agree on one thing: that its impact as precedent is uncertain because the majority opinion relies on the least controversial (from a First Amendment perspective) version of the facts.

That said, it seems all but certain that the ruling will open the door to other lawsuits from teachers and other public employees who will want to challenge whether prayer or other kinds of speech are protected, and in turn from students who might feel more clearly coerced by an authority figure than did the students in this case. The coming years may bring many more opportunities to see to what extent the current Court’s conservative majority has a genuine interest in protecting religious liberty.

Well, when you add that to the school voucher decision forcing taxpayers to subsidize religious education, I think the impact of the courts on the First Amendment—and that includes this case—is almost certain to be dire and corrosive. Of course we’ll have more lawsuits, as more people can climb over the wall that the Court has lowered, but it’s hard for me to believe that Young doesn’t think the current Court’s “conservative majority has a genuine interest in protecting religious liberty.”

Violating the First Amendment, the Supreme Court rules that taxpayer money can be used to send kids to religious schools

June 21, 2022 • 12:00 pm

Further eroding the wall between church and state, the Supreme Court ruled today by a margin of 6-3 (get used to that vote!) that the state of Maine MUST allow taxpayer-funded vouchers for students who want to go to religious schools.  This means that we, the taxpayers, must surrender some of our hard-earned dosh to subsidize religious instruction. This has violated all precedent, as the articles below explain.

You can read the decision here.

Judge Roberts, who voted with the conservative majority, called the “no-religious-vouchers” law of Maine “discrimination against religion.” I can see that argument (though I disagree with it), except that the private or public schools normally funded with such vouchers do not push a religious point of view. In fact, if I had my way there would be no vouchers at all, so Roberts’s argument wouldn’t apply. You either send your kids to public schools, homeschool them, or, if you can afford it, PAY for private schools, religious or not. If you think the public schools aren’t good enough for your kid, or are too secular, pay for them to go to “better” schools. If I’m going to pay for improved education, I want it to be through higher taxes to improve PUBLIC schools.

Click below to read the CNN article:

An excerpt

The Supreme Court said Tuesday that Maine cannot exclude religious schools from a tuition assistance program that allows parents to use vouchers to send their children to public or private schools.

The 6-3 ruling is the latest move by the conservative court to expand religious liberty rights and bring more religion into public life, a trend bolstered by the addition of three of former President Donald Trump’s nominees.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Chief Justice John Roberts wrote for the majority. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

Roberts was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three liberal justices dissented.

It is a loss for critics who say the decision will amount to a further erosion of the separation between church and state. Although only one other state, Vermont, has a similar program, the court’s ruling could inspire other states to pass similar programs.

Writing a dissent joined by Justice Elena Kagan and in part by Justice Sonia Sotomayor, Justice Stephen Breyer said the court had “never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.”

The Freedom from Religion Foundation also has a new piece analyzing the decision, which you can read by clicking below:

From the FFRF analysis:

The court has gone contrary to the country’s foundational constitutional principles in striking down Maine’s “no aid” law, a provision meant to ensure that no citizen is forced to fund religious indoctrination at private religious schools, or any religious education that conflicts with their personal beliefs. The Supreme Court’s judicial activism and faulty reasoning will undoubtedly lead to many additional violations and litigation in other states as Christian nationalists seek to fund private Christian education with taxpayer money.

The plaintiffs want to use state money in this instance to send their children to Christian schools that provide religious instruction. One of the schools in question, Bangor Christian School, has a mission of instilling a biblical worldview that is “completely intertwined” with the curriculum and identifies the bible as its “final authority in all matters.” The First U.S. Circuit Court of Appeals concluded in its judgment two years ago that the “nonsectarian” requirement in Maine’s tuition assistance program did not exclude religious schools based on their religious status, but rather protected the state’s interest in only supporting nonreligious education.

You citizens of Maine: if you accept evolution, you’re probably giving money to parents to have their kids taught creationism.

However, the majority opinion, written by Justice John Roberts, asserts that Maine’s law impermissibly infringes on the rights of religious schools: “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” Roberts added, “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

This claim misconstrues the real religious freedom at stake in the case, which is the right of every taxpayer to be free from funding religious indoctrination, and the right of every student in Maine to an education free from religiously motivated discrimination. Shockingly, the Supreme Court’s opinion explicitly acknowledges that private religious schools are very different from the public school education that Maine’s program is intended to offer. Roberts notes, “private schools are different by definition because they do not have to accept all students. Public schools generally do,” and moreover, “the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools.”

And look at this!

The two religious schools acting as plaintiffs in the case “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” according to Maine’s brief to the Supreme Court. But rather than observing that these differences warrant Maine’s decision to limit its funding to schools that do not indoctrinate students, the court reasons that giving money to any private school means the state must fund religious education as well.

And from Sotomayor’s strong dissent:

In a blistering dissent, Sotomayor writes: “What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. ​​If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.”

I don’t think we should have to subsidize private education when we have public schools, but I object even more when that private education is religious, as forcing taxpayers to subsidize learning about Moses or Jesus or Allah is forcing the government to fund religion. And that’s a violation of the First Amendment.

Get used to a 6-3 vote (Breyer will be replace by the liberal Ketanji Brown Jackson). It is the vote that will be used to tear down the wall between church and state.

“Judge Roberts, stop tearing down that wall!”

Yes, burning the Qur’an can violate the First Amendment

May 17, 2022 • 10:00 am

Yesterday I described the mayhem that ensued in Sweden and Denmark when a nativist right-wing politician, Rasmus Paludan, head of Denmark’s anti-immigrant Hard Line Party, set fire to a Qur’an live on Facebook last month. He then announced that he was going to tour Sweden over Easter weekend burning Qurans: a tour with burnings in different Swedish cities. This caused the expected consequences: public ire and violent protests that included overturning buses and throwing Molotov cocktails. (The Muslims, of course, were irate over the burning of their scripture, and perpetrated the violence.) Paludan is continuing his Burn The Qur’an Tour and continues to create mayhem.

However, the Swedish and Danish police protected Paludan, and several readers noted that his acts are not prohibited in Sweden and Denmark, even when they could cause damage to people and property.

The question I posed to readers was this:  could burning a Qur’an in the U.S. under some circumstances not be considered Constitutionally protected speech if it led to foreseeable and imminent harm, and if that harm was intended?

Like most readers, I see no issue with burning Qur’ans, but I was posing a hypothetical legal question.

Most readers argued that this “speech” (burning the Qur’an) would be protected in the U.S. even if it was likely to lead to foreseeable and intended violence. You can see readers’ comments here.

However, I wanted a definitive legal opinion, so I consulted a very well known law professor specializing in free-speech and First Amendment issues.  His/her answer was that, yes, under some circumstances burning the Qur’an might NOT be protected speech, in which case the burner could be prosecuted. The prof’s response (I’ve added the link), quoted with permission:

According to the Court’s 1969 decision in Brandenburg v. Ohio, which remains a leading precedent, the government cannot punish an individual for engaging in expressive conduct that causes others to engage in violence unless the individual specifically intended to cause that reaction and his speech caused likely and imminent violence. So, whether the right wing Swedish politician could be punished for his conduct would depend on whether the government could prove that causing the violence was his specific intent in burning the Muslim [book] and that the violent response was likely and imminent (and grave).

Now these circumstances may not obtain in the case of Paludan, and proving intent is of course quite difficult. Nevertheless, it is not beyond possibility that someone burning the Qur’an could be punished by the U.S. government for that act under the “imminent violence” provision.

I consider this opinion definitive.

Here’s a recent video of Paludin burning the Qur’an under police protection, and some of the reaction:

Musk says he’ll reverse Twitter ban on Trump

May 10, 2022 • 2:32 pm

According to the Washington Post, Elon Musk, who will be the new boss of Twitter, has announced that he’ll reverse Twitter’s ban on the lucubrations of former Lunatic-in-Chief Donald Trump.

Twitter’s decision to ban Trump from the platform early last year was a mistake, the Tesla CEO said during a virtual event Tuesday. The decision to do so alienated much of the country, and Trump still has a voice. And Trump has launched his own social media platform in the meantime, potentially prompting even greater problems, he added.

“I think it was a morally bad decision to be clear and foolish in the extreme,” he said at the event hosted by the Financial Times.

Twitter banned Trump in the wake of the Jan. 6 riots, citing the risk of further violence.

. . . [Musk] has seized on the platform’s importance to democracy and global debate and criticized what he has described as a left-wing bias in moderation decisions. Twitter has countered that its efforts have been aimed at minimizing harm and improving the user experience by limiting exposure to hate speech and harassment.

I am on Musk’s side in this one. If he truly wants to adhere to the courts’ First Amendment construal of free speech on Twitter, as he said he does, then there’s no reason to ban Trump. If Trump abrogates First Amendment principles in the future, he can go. You might say that his behavior on January 6 constituted the promulgation of predictable and imminent harm, though he’s not been convicted of that, but even if it did, I favor giving him a fresh start. After all, doesn’t America deserve the spectacle of seeing the man fulminate? And remember, half of America loves him.

Of course now people will hate Musk even more, though I don’t think he deserves it. This was a proper decision, and can be rescinded if Trump violates any of the forms of speech not protected by the First Amendment.

I suspect many readers will disagree with me.

The NYT apparently doesn’t understand freedom of speech

March 19, 2022 • 11:00 am

I was surprised to see this full-editorial-board opinion piece in yesterday’s New York Times. But any endorsement of freedom of speech is okay with me. Yet as I read it, I realized that the New York Times is really attacking “cancel culture” rather than endorsing free speech. Read on to see what I mean (click on screenshot):

From the very upshot the article takes a strange definition of free speech, one not at all coincident with that defined by the First Amendment::

First, the Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What this means is that the government cannot itself ban or censor speech. The courts have carved out exceptions over the years, prohibiting speech that constitutes libel, harassment in the workplace, false advertising, defamation, some types of obscenity, and so on. This also means that the organs of government, most notably courts and public schools, cannot ban or censor speech. This does not mean that public organizations cannot censor some speech. For example, public schools, as in the Kitzmiller v Dover decision, were not free to teach intelligent design, an act that Judge Jones saw as itself violating the Establishment (of religion) clause of the First Amendment.

And yet here’s how the NYT article starts:

For all the tolerance and enlightenment that modern society claims, Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.

This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear. It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.

If we’re talking about “fundamental rights” guaranteed by the Constitution, then no, that document doesn’t give Americans any right to say whatever they want “without being shamed or shunned.” There is no “fundamental  {Constitutional) right” prohibiting “social silencing”, which is not really external silencing but self-imposed withholding of speech to prevent disapprobation.

It is this public disapprobation and shunning that the paper is defending, and yet even that has its place. If you publicly call for the gassing of Jews or genocide of Muslims in America, you have no “right” to not be shamed or shunned. Indeed, you should be. What you have the right to do is shout your views in the public square without being physically attacked, or, if you publish your views, to not have them censored by the government. (“Censorship” by private publishers is of course normal, as when Woody Allen’s publisher reneged on the agreement to publish his memoirs.)

What the Times is really calling for, in its confusing piece, is civil discourse—the “right” (and where do such “rights” come from?) to speak your piece without losing your job or being harassed. It’s calling for the kind of thing that Mill called for: the ability to speak your piece without being silenced by anyone—even by being shunned.

And the NYT faults both the Left and Right (mostly the Right, of course) for violating this kind of civility:

Many on the left refuse to acknowledge that cancel culture exists at all, believing that those who complain about it are offering cover for bigots to peddle hate speech. Many on the right, for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers and discourage open discussion in classrooms.

Many Americans are understandably confused, then, about what they can say and where they can say it. People should be able to put forward viewpoints, ask questions and make mistakes, and take unpopular but good-faith positions on issues that society is still working through — all without fearing cancellation.

Now laws that ban books and prohibit certain speech in public schools are indeed violating Constitutional free speech, but the paper generally avoids the distinction between “legal” speech and “tolerated” speech. Only once in the whole article does it mention this crucial distinction, and it’s way down in the article:

It is worth noting here the important distinction between what the First Amendment protects — freedom from government restrictions on expression — and the popular conception of free speech — the affirmative right to speak your mind in public, on which the law is silent.

Yes, the law is silent on that issue. What we need, and what the Times should make clear, is the distinction above, for Americans really need to know what speech can be legally restricted and what what speech cannot. That is, for instance, a huge issue in colleges.

To buttress its misguided conception of “free speech”, the paper presents results from several polls, all of them showing that a surprisingly large number of people self-censor or fear “retaliation or harsh criticism”. But “harsh criticism” comes with the territory, and its not clear what they mean by “retaliation.”

This whole article is in fact a gussied-up version of “A Letter on Justice and Open Debate” published two years ago in Harper’s and signed by a number of luminaries. Her’s an excerpt:

The forces of illiberalism are gaining strength throughout the world and have a powerful ally in Donald Trump, who represents a real threat to democracy. But resistance must not be allowed to harden into its own brand of dogma or coercion—which right-wing demagogues are already exploiting. The democratic inclusion we want can be achieved only if we speak out against the intolerant climate that has set in on all sides.

The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted. While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty. We uphold the value of robust and even caustic counter-speech from all quarters. But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought. More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms. Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes. Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal. We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.

That could have appeared in the NYT editorial. Yet many, especially on the Left, decried the Harper’s letter on various grounds (the signers were entitled, etc.); this link takes you to some some my posts on the criticism of the Harper’s letter.

I suspect that an entirely different article would be needed if you were asking not for legality but civility. (Alternatively, they should have separated the issues more clearly.) Indeed, the NYT has itself violated its own “civil speech” dictum in its own pages, firing staffers for “unwise” tweets and for saying the n-word in a didactic context. And the NYT’s staffers are notorious for their own cancel culture, saying they felt “unsafe” when science writer Don McNeil,  the n-word speaker, said the word several years before, in a didactic context, and on a different continent. (The audience for this editorial should be the paper’s own employees!) The NYT staff rebelled and McNeil was fired.

At any rate, I’m not beefing about this piece’s publication, for I too am an exponent of civil speech. The NYT is late to the party, but its sentiments are fine. But the big lacuna here are these unanswered questions:

a.) How far should First-Amendment style free speech be observed, even in places where it’s not mandated? These include private colleges, statements made outside the workplace, and so on?

b.) Sometimes people should be shamed or shunned for their speech, depending on what it is.  What should not happen is shouting down speakers or deplatforming them once they’ve been invited. In my ideal world, First Amendment free speech should coincide, as far as possible, with private free speech. That is, you have the right to say what you want (save the exceptions delineated by the courts), but nobody should be forced to listen to you.

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Addendum (h/t cesar):

Pluribus has collected a number of responses to the op-ed, both pro and con; you can see them here.  A couple:

I’m pleased to see that Greg Lukianoff, president of FIRE, agrees with me:

As does David French:

And Keith Olbermann:

Remember when the NYT abrogated Quinn Norton’s free speech but not equally odious speech from Sarah Jeong?

Several other people, like this one, don’t like the “both sides are to blame” trope, some seeing it similar to what Donald Trump said about Charlottesville:

And this one’s completely off the rails: