(1) I don't think anything I've said
suggests that displays of the Ten Commandments by nongovernmental actors could
be restrictable. They are just as protected by the freedom of speech as
displays of any other sentiments. (Whether governmental actors may display
the Ten Commandments is of course a matter of the Establishment Clause
constraints on the government.)
(2) I think that the Free Speech Clause protects Mormons'
and Jehovah's Witnesses' ability to express their views precisely to the same
extent that it protects Greenpeace's or the Libertarians' ability. Given
Martin v. Struthers, both are protected if the householder hasn't put up a No
Soliciting sign, and both are unprotected if the householder has put up a No
Soliciting sign. See also Heffron v. ISKCON, holding, even during the
Sherbert/Yoder era, that the Free Exercise Clause gave no more protection to
religious speech than the Free Speech Clause gives to speech generally (and thus
applying intermediate scrutiny rather than strict scrutiny to a Free Exercise
Clause challenge to a content-neutral speech restriction).
(3) A simple and plausible example: Operation Rescue
decides, because of their religious beliefs, to picket an abortion
provider's home. A pro-choice group decides, because of their nonreligious
political beliefs, to picket the Operation Rescue leader's home.
Could Operation Rescue really have broader speech rights than the pro-choice
group -- with the Operation Rescue claim being subject to strict scrutiny, and
the pro-choice group's being subject only to intermediate scrutiny (see Frisby
v. Schultz) -- because Operation Rescue has a religious motivation for its
speech? I would think the answer is no.
Eugene
Steve Jamar
writes:
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Monday, March 14, 2005 3:52 PM
To: Law & Religion issues for Law Academics
Subject: Re: Free Exercise, Free Speech, and harm to others
On Monday, March 14, 2005, at 06:20 PM, Volokh, Eugene wrote:
Rather, my argument isthat the Free Exercise Clause ought not be read as allowing people to dothings that harm others simply because they feel a religious obligationto do those things.
So you would be against displays of the 10 commandments on free exercise grounds because of the of the psychic harm caused by them to others even though they are displayed as a result of a religious obligation? And you would ban Mormons and JWs from stopping at my door just like all other peddlars -- if I could show psychic harm? I guess I don't see where this leads us out of the wilderness any better than the current mish mash of principles, policies, and adjustments.
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