Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a sermon in his progressive church decrying the theological positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a modern-day Pharisee. The sermon concludes that it is behavior and proselytization such as that in which Falwell engages that continues to contribute to the agony of Jesus on the Cross. The sermon is broadcast on tv, radio, and/or the web (to get roughly the same dissemination as Flynt managed with Hustler). Falwell is understandably upset and emotionally distressed (assume that it's just as distressing to him as were the comments about his mother).
Must Falwell meet a higher burden because the offending speech is a religious sermon rather than a parody in a secular publication? Should the courts get involved in the modern equivalent of the 17th century "pamphlet wars" if one or both of the parties alleges some sort of emotional distress or other damage? Or should the courts do as suggested the jury in Thomas Maule's trial: "This is a matter for a jury of divines."? I think it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech). Otherwise, because religious expression also is a form of free exercise, a back door is open to curtail the free exercise rights of the speaker. Jim Maule Villanova University School of Law >>> [EMAIL PROTECTED] 3/14/2005 4:36:01 PM >>> While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply because of the anticipated degree of negative impact upon persons other than the one exercising the right. Just to look at the first pair of hypotheticals: While Jerry Falwell is postulated to have experienced emotional distress as a result of both incidents, I submit that we intuitively would recognize that the immediacy and intrusiveness of the harm differs greatly when we compare reading a scurrilous reference to one's self in a periodical with experiencing an almost physical trespass accompanied by the use of loud sounds that cannot easily be escaped and, perhaps most importantly, that occurs at one's place of sanctuary, the home. Thus, while I agree that the free speech claim in that pair of hypotheticals is stronger than the free exercise claim, I don't see the two cases as truly comparable in terms of the degree and perhaps the nature of the harm, even if both forms of harm are generally categorized as emotional distress. Thus, for a set of hypotheticals comparing the strength of free speech and free exercise claims to be truly comparable, the nature or at least the degree of harm must also be comparable. While not neatly involving parallel factual settings or messages, consider these two scenarios: First, we again have the offensive parody of Jerry Falwell in Larry Flynt's Hustler magazine, in which Flynt invokes freedom of speech as a defense against a claim for emotional distress. Second, we have a homosexual couple that is rejected as tenants by a homeowner of traditional religious values for the spare room in her house, in which the homeowner invokes free exercise as a defense as a claim for discrimination by the homosexual couple under a municipal gay rights ordinance. Assume for the sake of argument that other rental opportunities for homosexual couples are available in that community (a reasonable assumption, as a municipality in which political support exists for enactment of a gay rights law involving housing is unlikely to one in which such discrimination is omnipresent across the community, but even if you find the assumption more debatable, I ask you to accept it for this hypothetical). Under that hypothetical, then, the claim of the homosexual couple, although framed as housing discrimination and seeking the remedy of an injunction, in practical terms is about the emotional distress of having experienced discrimination by being rejected as a tenant on the basis of sexual orientation. Isn't that experience of emotional distress comparable to that of Jerry Falwell who was targeted for sexualized slurs based upon his religious and political views? In both instances, the complaining party understandably and sincerely has suffered an emotional injury (as I'll assume for this hypothetical, as I doubt that Jerry Falwell truly was that distressed). But both emotional injuries are unaccompanied by any physical component and both involve primarily upset feelings. By that analysis, shouldn't the free exercise claim of the homeowner be regarded as equally viable as the free speech claim of Larry Flynt? (And if you don't like my hypotheticals, feel free to formulate your own, in which the comparability of harm is the pivot point rather than comparable factual settings.) Greg Sisk Gregory Sisk Professor of Law University of St. Thomas School of Law (Minneapolis) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 11:59 AM To: Law & Religion issues for Law Academics Subject: Free Exercise, Free Speech, and harm to others Brad's and Marc's posts raise an excellent question: If free speech means that people have the constitutional right to impose burdens on others, why shouldn't free exercise operate the same way? The same can be said of other rights, incidentally: For instance, the Compulsory Process Clause right gives criminal defendants very substantial powers to constrain others' liberty. (I set aside here the permissible scope of legislative accommodations, and focusing on what's constitutionally compelled.) I think that free speech and free exercise *are* different this way, and let me briefly try to explain why. I'll begin with some hypotheticals that I think help illustrate this, and then offer a broader theoretical explanation. (The following is borrowed from my A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999), http://www1.law.ucla.edu/~volokh/relfree.htm.) Here are the hypos, which consist of pairs of claims, one free speech and one religious freedom: 1. (A) Larry Flynt inflicts emotional distress on Jerry Falwell by publishing his vitriolic "ad parody" in Hustler Magazine; when sued under the IIED tort, Flynt raises his free speech rights as a defense. (B) Mary Glynt inflicts emotional distress on Jerry Falwell by standing outside his window at night with a bullhorn; when sued under the IIED tort, Glynt raises her free exercise rights as a defense -- she claims (assume that the claim is sincere) that she feels a religious obligation to remonstrate this way with heretics (and she considers Falwell to be one). 2. (A) The NAACP interferes with Claiborne Hardware's business relations by publicizing the names of its visitors, and urging people to boycott Claiborne; when sued under the interference with business advantage tort, it raises its free speech rights as a defense. (B) Operation Rescue interferes with an abortion clinic's business relations by blocking the entrance to the clinic; when sued under the same tort, it raises its (or its members') free exercise rights as a defense -- it claims (assume that the claim is sincere) that its members feel a religious obligation to protect fetuses this way. 3. (A) A modern-day Schenck tries to interfere with the war effort by publishing books, leaflets, and Web sites urging people to vandalize munitions manufacturers; when prosecuted for counseling illegal conduct, he raises his free speech rights as a defense. (B) His religiously pacifist cousin Penck tries to interfere with the war effort by blocking the entrance to a military contractor's building; when prosecuted for trepassing, he claims (assume that the claim is sincere) that he feels a religious obligation to fight the war this way. Under standard free speech doctrine, the free speech claimants in each of these cases would have a good Free Speech Clause defense, *even though* their speech causes harm to others. But do people on this list think that the religious freedom claimants in each of these cases should likewise prevail with their Free Exercise Clause defenses? The government interests -- and the private interests that the government is protecting -- in all the cases, it seems to me, are quite similar. The speech and the religious conduct jeopardizes those interests (perhaps not identically, but to similar degrees). But while the government is barred from restricting the speech when the content of the speech causes harm to others, the government may (and I think should) restrict the religious conduct when that causes harm to others. If I'm right, then this suggests that we can't just casually equate free speech and free exercise claims (perhaps, for instance, because the Court was correct to conclude in Smith that the Free Exercise Clause right is a nondiscrimination right, or perhaps because both Smith and Sherbert were wrong and the proper test for exemptions from generally applicable laws is less than strict scrutiny though not rational basis). And here's my thinking as to why this is so: The Free Speech Clause and other rights *are* rights to inflict certain kinds of harm on others in certain ways (for instance, through the communicative impact of speech); we think that for various reasons, the government ought not be allowed to interfere with this harm, perhaps because speech is so valuable to democratic self-government, or because we suspect the government will abuse its regulatory powers. Likewise, as I argue at http://www1.law.ucla.edu/~volokh/relfree.htm#Several%20Specific%20Prohib itions%20on%20Government, in a few contexts (for instance, discrimination in hiring clergy, or religious frauds), the Free Exercise Clause also allows religious people or institutions to inflict what the law might otherwise treat as harm to others. But we ought not read the Free Exercise Clause as generally licensing religious objectors to inflict harm on others (or even to do so subject to a possible strict scrutiny trump). As I argue, my relationship with my God may be important to me, but it can't by itself be a constitutionally sufficient justification for my harming you, even slightly (for instance, by intentionally inflicting emotional distress on you in secular ways, blocking access to your property, or slightly vandalizing your commercial building). From your perspective and the legal system's perspective (even if not from my own), my God is my God, not yours, and the Constitution doesn't give those acting in His name sovereignty over your legally recognized rights and interests. The trouble with such a broad religious freedom claim to do whatever you please so long as you don't harm others is not that private contract, property, and tort law rights, or private interests in being free from criminal vandalism (consider the rights and interests implicated in the three examples I note above) somehow outweigh religious freedom rights: How could we justify such a conclusion? Even if one somehow determines that such private rights are as important as religious freedom rights, I see no way to explain why they are more important, which would be required to show such an outweighing. Rather, the reason why a general exemption regime can't override these rights must be that any religious freedom right that's solely grounded in the religious motivation for one's actions simply can't extend to actions that impair others' rights or impose improper externalities on others. Whether your countervailing right is a right to life, to bodily integrity, or to something perhaps somewhat less important, such as property or freedom from emotional distress, if it is indeed a right then the religiosity of my motivation can't justify violating it. This, I think, is reflected in some of the most eloquent claims for religious tolerance, which focus on the right to do what one's religion commands or urges *so long as it doesn't harm others*. Jefferson's defense of religious freedom, for instance, was justified by the argument that someone's "say[ing] there are twenty gods, or no God . . . neither picks my pocket nor breaks my leg." Madison wrote that religion should be "immun[e] . . . from civil jurisdiction, in every case where it does not trespass on private rights or the public peace." Similarly, Michael McConnell argues that we should be "free to practice our religions so long as we do not injure others." That *is* an appealing sort of claim (though I think that it's ultimately not judicially administrable, as a constitutional matter). But the claim that we should generally be free to practice our religions *even when* we injure others is not. But in any event, I'm curious: Even if people disagree with this theoretical explanation, what do they think about the three specific examples I give above? Eugene -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern Sent: Monday, March 14, 2005 6:50 AM To: Law & Religion issues for Law Academics Subject: RE: Harm to Others as a Factor in Accommodation Doctrine Vindication of constitutional rights often entails shifting burdens form one party to another. A public figure defamed without malice has to suffer damage to reputation in the furtherance of creating a vigorous marketplace of ideas. The interests of a fetus'father in the birth of his child yield to the superior right of a mother not to be compelled to carry to term. One could multiply still further such examples. For those who believe accommodation can never entail any burdens on third parties, I wonder if they could explain why the constitutional right (or interest) is in free exercise of religion qualitatively different than these other examples. Marc Stern ------------------------------------------------------------------------ -------- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, March 14, 2005 9:39 AM To: religionlaw@lists.ucla.edu Subject: Re: Harm to Others as a Factor in Accommodation Doctrine The state courts are actually not uniform on this -- except for race. I could not find a church that was permitted to discriminate according to race, even if the discrimination was religiously motivated. The ministerial exception is being argued in many clergy abuse cases as a general right to control all aspects of the clergy-religious institution employment relationship. Marci The general right of churches to insist that their employees share the church's religious beliefs cannot be used to circumvent the other prohibitions of title VII. Bard Pardee wrote: Doesn't that render the Free Exercise clause powerless as a guarantor of religious freedom? Suppose, for instance, we were talking about freedom of speech instead of the free exercise of religion. I can't imagine that the legislature would be able to outlaw any type of speech they wanted to as long as it was in a neutral and generally applicable law, and that people would have to lobby the legislature for an accomodation to be able to have the freedom of speech they thought the Constitution already provided. Rather, the legislature would need to be able to justify to the court why the outlawing of a type of speech was not an unconstitutional infringement on an explicitly Constitutionally protected freedom. Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? Tell me what I'm missing in your understanding of what the Free Exercise clause actually protects. Marc Stern wrotes: Vindication of constitutional rights often entails shifting burdens form one party to another. A public figure defamed without malice has to suffer damage to reputation in the furtherance of creating a vigorous marketplace of ideas. The interests of a fetus'father in the birth of his child yield to the superior right of a mother not to be compelled to carry to term. One could multiply still further such examples. For those who believe accommodation can never entail any burdens on third parties, I wonder if they could explain why the constitutional right (or interest) is in free exercise of religion qualitatively different than these other examples. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
