I accept Eugene's observation that my comparison cases suffer from inadequate similarity comparison purposes. Perhaps at some point I'll try harder to develop less inferior paired hypotheticals to better express my point (perhaps that task will seem more appealing in a few weeks when I'm grading blue books).
But I still am not convinced either (1) that a greater degree of burden from speech is acceptable because freedom of speech is a more robust constitutional right than free exercise, or (2) that the harms identified in the Flynt/Glynt hypotheticals are truly comparable and thus illustrate the point. Indeed, in the Glynt hypothetical, if Mary Glynt engaged in the same expression by bull-horn at the house window but offered a free speech rather than free exercise justification, the result would be the same -- she still would lose. Thus, it isn't the nature of the right that explains the differing results but something about the nature of the intrusion or the harm or the presence or absence of an attenuated link between them. Along these same lines, I'm persuaded that Eugene has a point that we permit a larger range of expression under freedom of speech than conduct under free exercise. But isn't that in part because speech is different from conduct (as Jim Maule suggested) rather than because the constitutional rights underlying one or the other are at different points in the hierarchy of constitutional values? While speech may and sometimes does cause harm, it almost always does so indirectly, as it depends for efficacy upon persuading someone else that the message is credible or that a response should be made. Thus, speech that is harmful depends upon a chain from the speaker through the medium to a recipient who in turn chooses to respond in a manner that induces harm to the recipient or someone else. Even speech that is intended to cause harm may prove ineffective due to breaks in the chain, especially if the recipient finds it uninteresting or unpersuasive. By contrast, conduct -- whether expressive in nature or not -- is immediate and if that conduct is harmful, the harm is rather directly realized. And related to that, I still think -- although my clumsy hypotheticals may not have illustrated it well -- that the harms involved may be different in nature or degree. While one subjectively and understandably might regard being slandered before millions of readers as a greater source of distress than being momentarily accosted at one's home by a loud protester, the law always has treated a physical invasion as different from an emotional response, even an induced emotional response. Indeed, some strains of law even today still preclude recovery in tort for emotional distress that is unaccompanied by physical injury. If there is anything to what I'm trying to say here, would it not follow that different treatment of the trespasser who asserts a free exercise defense from the magazine writer who claims freedom of speech turns not upon which actor invokes which constitutional protection but rather upon the nature of the impact caused by the underlying conduct/expression? Greg Sisk -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 3:57 PM To: Law & Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I appreciate Greg's thoughtful analysis, but I think that ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's rights doesn't resolve the problems. I would feel *much* more distressed by knowing that millions (?) of people are reading about how I supposedly had sex with my mother in an outhouse (even if they know it's a gag) than by a few nights of loud noise outside my house. Likewise, I suspect that the more-or-less three-year-long boycott in Claiborne Hardware affected local businesses more than the occasional blockage would affect the business of an abortion clinic. It's true that this may be so because the boycott went on for a long time, while the blockage in my hypothetical wouldn't. But under free speech law, even speech urging a long boycott can't be punished -- and even one instance of entrance blockage, which would cause vastly less damage than the boycott, would be punishable, whether or not it's religiously based. So people are constitutionally entitled to inflict considerably greater harms through the communicative impact of their speech than through the religiously motivated conduct. Or am I mistaken here? As to the housing discrimination scenario, I just think Greg's comparison cases are actually not terribly similar. The gay couple's claim isn't necessarily that they're deeply emotionally distressed -- rather, it is that they have a legal right to equal treatment, regardless of whether the unequal treatment is terribly distressing. Maybe this right flows from a general sense that the unequal treatment is usually distressing, but it doesn't, I think, require a case-by-case analysis here. I have a right to be free even from minor trespasses on my land, or minor batteries (consider someone popping me in the face with a cream pie, probably not tremendously insulting as batteries go). People aren't free to engage in this conduct even if they feel a religious obligation to do so (say, for instance, that they want to engage in a pilgrimage to what they think is a newly discovered holy site on my land, or that they feel they need to pie me as a statement about my blasphemy). Likewise, I take it that many supporters of antidiscrimination law believe that a right to be free from certain kinds of discrimination in certain transactions is a comparable private entitlement. I don't see how a court can, as a constitutional matter, conclude that this form of infringement of one's rights just isn't that emotionally distressing, while other forms are. Eugene Greg Sisk writes: > 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%20Specifi > c%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 > _______________________________________________ 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.
