Well, let me probe again the question I raised in the post below
(which Michael quotes). I take it that to the extent that speech can be
punished because it indirectly promotes violence -- which is to say, to
the extent that Brandenburg v. Ohio is overruled, at least when speech
comes from "the political right" (and Phelps' anti-American,
antipatriotic speech is treated as being of "the political right") -- we
should worry much more about facially polite speech by mainstream
religious groups and mainstream religious leaders than about facially
extremely rude speech by the extremely marginal. No-one much listens to
Phelps, and the very extremism of both his manner and his message
undermines him, and makes it highly unlikely that his speech will
actually foment violence. On the other hand, condemnation of
homosexuality, even in facially peaceful tones and with peaceful
messages -- for instance, by the Catholic Church, by orthodox Muslim or
Jewish denominations, or by many traditionalist Protestants -- probably
does indirectly promote violence against gays. The speakers may not
intend that, but surely the effects of their speech are much more
harmful to gays than the effects of Phelps' speech.
Under Michael's rationale, then, it seems to me that a ban on
mainstream religious teachings that promote hostility towards
homosexuality (even if they don't on their face or in their intentions
call for violence against homosexuals) would be perfectly
constitutional: Recognition of gay rights would lead, and should lead,
to suppression of traditionalist religious groups' right to promote
their religious beliefs. Or am I mistaken?
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Newsom Michael
> Sent: Monday, November 05, 2007 3:03 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
> Let me make two related points.
>
> 1. People who dislike Phelps' group may do so for a variety of
> reasons, some reasons being principled, some being tactical
> or strategic only.
>
> 2. There is a powerful psychological link between gays and the
> Phelps group's conduct at the funeral of fallen warriors, and it is
> this: an anti-gay backlash could result because if it weren't
> for gays, or the "gay agenda," whatever that is, Phelps'
> group would not be causing such pain and harm. In other
> words, gay people may well be the target. Gay people might
> be viewed as the cause of the outrageous behavior at
> funerals. Have any of the families who have been affronted
> said anything positive about gays? And if so, how often has
> this happened?
>
> The connection between the two points is clear: a tactical
> objection to the Phelps group might merely be that its
> behavior is not the best way
> -- in the view of the tactical objector -- to stir up an
> anti-gay backlash.
>
> I make a similar point in a forthcoming article: liberal
> evangelical Protestants (and this includes secular
> rationalist Protestants) might have a complex, but
> essentially tactical objection to proselytizing techniques
> employed by pietistic evangelical Protestants: namely that
> while it is good that such proselytizing might bring
> non-Protestants into the pan-Protestant nomos, such
> proselytizing thereafter becomes counterproductive from the
> point of view of liberal evangelical Protestants because they
> believe -- rationalists that they are, or tend to be -- that
> conversion of the mind is the only way that they will build
> up their numbers, and the appeals of pietistic evangelical
> Protestants, with their emphasis on the heart and the soul,
> hinder conversion of the mind.
>
> I can't really respond to Eugene's proposed perspective
> because I do not think that we agree as to what is at stake.
> There is an ideological asymmetry in the fact and experience
> of violence, both formal and informal, in the United States.
> Violence is visited far more by those on the political right
> on those on the political left than is the reverse case.
> (This is so, in my opinion, because the political right is
> largely united in its views on race whereas the political
> left is more often than not divided. The political right has
> greater cohesion, therefore, which enables it better to
> practice violence against those that it dislikes. There are,
> of course, other factors that contribute to the asymmetry,
> not least of which might be that Americans lean towards the
> political right, and not the left.)
>
> Stimulating violence against African-Americans or against
> gays, longtime victims of such violence, calling directly or
> indirectly, overtly or covertly, for the use or application
> of violence, given the reality of the patterns of violence in
> America, is not something that ought to be protected under
> the banner of "free speech."
>
> I can't read the First Amendment as privileging bullying or
> worse. The speech-conduct distinction can be easily
> manipulated to encourage bullying and the like. By the same
> token it can be manipulated to discourage such behavior. I
> prefer the second course, not the first. I am not saying
> that Eugene means to encourage bullying, but the practical
> consequences of his approach might lead to that unfortunate result.
>
> The relevance of Romer and Lawrence is, in my view, this:
> the cases attempt, among other things, to hold the line
> against fomenting violence
> -- both formal and informal -- against gay people.
>
> I share the views of many who have spoken on the Westboro
> matter arguing that we ought to be able to protect mourning
> and grief from the likes of the Phelps group. Indeed, I have
> said so myself in so many words. But, above and beyond that,
> I think that the real target of the Phelps group is gay
> people, and that real desire is to foment an anti-gay backlash.
> It is the second point that I had failed to make in earlier
> posts and I wish to correct that mistake now. The real issue
> is violence -- formal or informal -- against gays and whether
> the First Amendment gets in the way of trying to contain such
> violence.
>
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Friday, November 02, 2007 6:47 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
>
> OK, let me present it from a different perspective:
> Many traditionalist Christians have argued that civil rights
> victories for the gay rights movement mean losses for
> traditionalist Christians -- in particular, loss of free
> speech and the right to spread their religious views. Many
> have responded that this isn't so, or is at least
> overstated: That of course Christians can keep their free
> speech rights and the rights to spread their religious views,
> and gays and lesbians can have the right to sexual autonomy,
> the right to marry free of government constraint, and so on.
>
> But I take it that Michael disagrees: His view is that
> Romer and Lawrence should indeed lead the Court to uphold
> restrictions on antigay speech, which I take it would include
> antigay religious teachings. Moreover, I take it that the
> assertedly compelling government interest in protecting gays
> is *much* more jeopardized by mainstream antigay teachings
> (even when they are comparatively politely framed), from
> groups such as traditionalist Protestants, Catholics,
> Muslims, and orthodox Jews, than by Phelps' gang of kooks
> (which if anything would lead to some extra sympathy for gay
> rights, by tying extremist antigay bigotry to extreme
> anti-Americanism). So under his rationale, the Court should
> uphold general bans on anti-gay-rights teachings, including
> religious teachings.
>
> If that's right, then weren't the traditionalist
> Christian views who complained about the gay rights movement,
> and in particular about the indirect consequences of its
> validation in cases such as Romer and Lawrence, quite
> prescient? If Michael's views are to prevail, then it really
> is a question of choosing whose rights we protect -- the
> sexual autonomy and equality of gays and lesbians, or the
> free speech and the religious speech rights of traditionalist
> Christians. When the first group wins, the second loses
> (again, if Michael's views are to be accepted).
>
> Eugene
>
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Newsom
> > Michael
> > Sent: Friday, November 02, 2007 12:41 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigay speech
> >
> > No, not remarkable.
> >
> > Viewpoint neutrality is a chimera and an illusion, in my
> opinion. I
> > do agree that the Court is not likely to agree, but that
> does not mean
> > that the Court is right, but merely that the Court has spoken --
> > wrongheadedly.
> >
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
> > Eugene
> > Sent: Friday, November 02, 2007 2:56 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigay speech
> >
> >
> > Wow, that really is a remarkable First Amendment
> > position: The government is constitutionally permitted to
> ban antigay
> > speech (all antigay speech? some antigay speech?
> > only antigay speech at funerals?), but I take it constitutionally
> > forbidden from banning progay speech, anticapitalist speech,
> > anti-Christian speech, and so on.
> > Might as well chuck all the Court's pretensions to viewpoint
> > neutrality out the window if that sort of exception is accepted
> > (though fortunately I can't count a single vote for it on today's
> > Court).
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: [EMAIL PROTECTED]
> > > [mailto:[EMAIL PROTECTED] On Behalf Of Newsom
> > > Michael
> > > Sent: Friday, November 02, 2007 11:29 AM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > > antigay speech
> > >
> > > David has it right: a compelling governmental interest in
> > protecting a
> > > discrete and insular minority -- one that is routinely victimized.
> > >
> > > -----Original Message-----
> > > From: [EMAIL PROTECTED]
> > > [mailto:[EMAIL PROTECTED] On Behalf Of
> David Cruz
> > > Sent: Thursday, November 01, 2007 8:12 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > > antigay speech
> > >
> > > I too found that comment a little cryptic. If Michael
> meant to be
> > > doctrinal rather than just attitudinally predictive, my
> > guess would be
> > > that he didn't mean that a different First Amendment rule
> > would apply,
> > > but that those decisions might somehow justify a conclusion that
> > > there's a compelling governmental interest present. But it
> > wasn't at
> > > all clear to me, so perhaps Michael might clarify.
> > >
> > > David B. Cruz
> > > Professor of Law
> > > University of Southern California Gould School of Law Los
> > Angeles, CA
> > > 90089-0071 U.S.A.
> > >
> > > -----Original Message-----
> > > From: [EMAIL PROTECTED]
> > > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
> > > Eugene
> > > Sent: Thursday, November 01, 2007 4:43 PM
> > > To: Law & Religion issues for Law Academics
> > > Subject: Is First Amendment viewpoint-discriminatory
> > against antigay
> > > speech
> > >
> > > I'm puzzled -- do Romer and Lawrence really justify not just
> > > protection of gays against governmental discrimination, but a
> > > different First Amendment rule for antigay speech than for
> > > pro-gay-rights speech or a wide range of other speech?
> > >
> > > Eugene
> > >
> > > Michael Newsom writes:
> > >
> > > > That said, I have no idea of what the Court would do with
> > > this case,
> > > > but my guess is that the Court would overturn the jury
> > verdict 5-4,
> > > > although Kennedy, on the strength of Romer and Lawrence,
> > might vote
> > > > with the moderates and the case would come out the other
> > > way, 5-4 to
> > > > uphold the jury verdict (although the punitive damages might be
> > > > reduced, the Court likely to send a signal, I think, in
> > the Valdez
> > > > case that it is prepared to rein in punitive damages).
> > > _______________________________________________
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