Suppose the statement was a wee bit different: "This is a really nice
restaurant you have here, except for those blasphemous pictures on the
walls. It would be a shame if God caused it to burn down, for example,
by causing lightning to strike or a meteor fragment to hit, which I pray
every day God will do if you don't let God answer my other prayer that
you see the light and take down those pictures." And assume there hasn't
been a previous history of restaurants burning down. Much preaching
contains the not-so-veiled threat of divine retribution. So in this case
the speech has to be protected.
Now suppose a few days later an unexplained fire destroys the
restaurant. Shortly before a thunderstorm. Speaker argues her prayers
were answered. Case probably dismissed on basis of failure of proof.
Then it happens again. And again. At some point the coincidences become
too much. So does protected speech lose its protection based on the
"track record" of previous speech? By the same person? By confederates?
By proselytizers of another denomination or sect?
Jim Maule
>>> [EMAIL PROTECTED] 3/14/2005 10:33:25 PM >>>
I think the question in either case would be (1) whether the
listener would reasonably understand this as a threat of attack by the
speaker or the speaker's confederates and (2) whether the speaker
intended to put the listener in fear of such attack (see Virginia v.
Black). So it's possible that #2 would indeed be a threat, and that
#1
would not be, depending on what else the listener knows about the
speaker. If the speaker or his buddies are suspected of killing other
annoying people, for instance, statement #2 might well be punishable.
Consider this statement: "This is a really nice restaurant you
have here, except for those blasphemous pictures on the walls. It
would
be a shame if God caused it to burn down." Other neighboring
restaurants have in fact burned down after they refused to take down
blasphemous pictures. The speaker is religiously motivated (which I
take it is the test for a Sherbert/Yoder-era free exercise claim), and
as it happens the underlying dispute, as well as the language of the
statement, are religious. If the speaker intends to make the listener
afraid of burning by the speaker or his confederates, and a reasonable
listener would have this fear, then it seems to me that this is a
punishable threat.
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of James Maule
> Sent: Monday, March 14, 2005 5:38 PM
> To: religionlaw@lists.ucla.edu
> Subject: RE: Free Exercise, Free Speech, and harm to others
>
>
> OK, I see your point and it helps me refine the hypo:
>
> 1. "I pray I can find someone to put an end to your annoying
> existence on this planet."
>
> 2. "I pray to God every night that somehow the angel of death
> visits you and puts an end to your annoying existence on this
planet."
>
> Assuming that the recipient of the words doesn't treat #2 as
> a silliness (e.g. reaction of an athiest) but has a
> theological perspective that makes it upsetting and
> emotionally distressful, ought not #2 be protected and #1
> actionable (assuming a showing of damage or injury, etc.)? Is
> it because the second is unprovable to a purely rational
> mind? Would it be on account of #2 being religiously
> motivated? (By religiously motivated, do you mean the
> motivation for the belief that the threat can be made, or the
> underlying dispute that generates the felt need to make the
> threat? I'm assuming the first, but perhaps I'm misreading
> your explanation.)
>
> Jim Maule
>
> >>> [EMAIL PROTECTED] 3/14/2005 7:08:23 PM >>>
> I suspect that the distinction here isn't religious
> speech vs. secular speech and more (1) speech that sounds
> like warning of action by others who are unrelated to the
> speakers vs. (2) speech that sounds like warning of action by
> the speaker or his confederates. If a mother is really angry
> at a child and says "You're going to get killed if you use
> drugs / run around with bad kids / do other dangerous stuff,"
> we wouldn't treat that as a threat, because it's clearly a
> warning of what others might do. Conversely, "God is going
> to call you to judgment soon" might well be a threat if in
> context it's pretty clear that the person is conveying a
> message that he or his confederates might be the tools that
> God uses for this call. More broadly, there surely shouldn't
> be unqualified Free Exercise Clause protection for all
> threats that are religiously motivated, no?
>
> Eugene
>
> Jim Maule writes:
>
> > Compare "You're going to get yours some day, and it could be
> > within the next minute" (shouted, eyes bulging, face red,
> > fists clenched, during law conerence disputing whether a
> > state should permit same-gender
> > marriages) with "You're going to burn in hell and swim with
> > the demons some day, and it could be within the next minute
> > because you never know when God's going to call you to
> > judgment" (shouted, eyes bulging, face red, fists clenched,
> > during theological convention disputing whether a
> > denomination should sanctify same-gender marriages).
> >
> > Recipient of speech in both instances sues, alleging
> > emotional distress, fear of harm, and physical manifestations
> > thereof. Recipient in both instances is a person who believes
> > in the existence of hell and for whom an eternal placement
> > therein is a horrifying thought. Recipient is also a person
> > who dreads physical pain. If the first tirade is construed as
> > fighting words, is the second necessarily treated the same
> > way? I can see the same jury finding for the plaintiff in the
> > first but not in the second. Why? Because the second involves
> > speech the meaning of which is immersed in theological
> > mystery (after all, who really knows for sure?) whereas the
> > first involves speeach the meaning of which is immersed in a
> > not so mysterious message of imminent physical threat. Note
> > that the conduct and principal issue are identical, but the
> > location, context, and participants differ (secular v.
theological).
>
> >
> > Would you protect the speech in both cases? Not protect it in
> > both cases? Or leave open the possibility of different outcomes?
> >
> > Jim Maule
> > Villanova University School of Law
> >
> > >>> [EMAIL PROTECTED] 3/14/2005 6:23:40 PM >>>
> > I'm not sure why "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)" -- why not severely limit the extent to which courts
> > impose liability on emotional distress caused by speech,
> > period? If Senator Llynt gives a speech decrying the
> > political positions taken by Falwell, denouncing the alleged
> > intrusion of Falwell's theology into politics, and
> > characterizing Falwell as a generally bad person, it seems to
> > me that he should be categorically immune from IIED liability
> > even if his speech is purely nonreligious. If I'm right, then
> > why is there any need for extra protection for religious speech?
> >
> > (I realize that there might be some situations where
> > religious speech is immune from liability because it's
> > incapable of secular proof; but generally the remedy there is
> > to treat is the same as secular opinions that are incapable
> > of proof, which are constitutionally
> > protected,)
> >
> > Eugene
> >
> > Jim Maule writes:
> >
> > > 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%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
> > >
> > >
> > > -----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.
> > >
> > > _______________________________________________
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> > >
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> > >
> > > _______________________________________________
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> _______________________________________________
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> > >
> > _______________________________________________
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> >
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> > messages to others.
_______________________________________________
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> >
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> Please note that messages sent to this large list cannot be viewed
as
> private. Anyone can subscribe to the list and read 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.
_______________________________________________
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.
