No, the major purveyors are not street thugs.

-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Wednesday, November 07, 2007 4:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is First Amendment viewpoint-discriminatory against
antigayspeech?


        The major purveyors of informal violence are street thugs.
Politically motivated violence, whether motivated by left ideologies
(anarchism, labor extremism, the Weather Underground, the Black
Panthers, the Black Muslims) or right ideologies (racism, anti-gay
ideology when hostility to homosexuals was a matter of ideology rather
than as a matter of social routine, as it has often been in the past),
is fortunately pretty rare.  Whether one categories violence that's
partly influenced by general praise of violence and of violent
lifestyles -- for instance, the violence that is glamorized by some rap
music -- as "left," "right," or something else is an exercise left to
the reader.

        Eugene

> -----Original Message-----
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of 
> Newsom Michael
> Sent: Wednesday, November 07, 2007 12:32 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory 
> against antigayspeech?
> 
> Formal violence = violence perpetrated by the state, 
> typically through the forms and the processes of the criminal 
> law, but not exclusively so, of course.  (The easiest example 
> being violence perpetrated through the use of military force.)  
> 
> Informal violence = lynching, cross-burnings, assassinations, 
> vigilante "justice," gay-bashing, and the like.  The state 
> may support or condone such violence, but informal violence 
> is not conduced by the formal instrumentalities of the state, 
> enforcement of criminal sanctions, police enforcement, 
> military force, or otherwise.
> 
> The political right is far more guilty of informal violence 
> than the political left is.  Just think about who the major 
> purveyors of informal violence have been throughout our 
> history.  One could start with the Ku Klux Klan, clearly a 
> right-wing outfit.  Think about those who indulged in mob 
> violence against African-Americans and gays.  The rhetoric of 
> those mob attacks is hardly the language of the political left. 
> 
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of 
> Esenberg, Richard
> Sent: Tuesday, November 06, 2007 8:31 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory 
> against antigayspeech?
> 
> "Violence is visited far more by those on the political right 
> on those on the political left than is the reverse case."
> 
> What do mean by "violence, formal and informal. In 
> contemporary America, direct political violence is, 
> thankfully, relatively rare unless you define violence in a 
> way that departs from its customary usage. Perhaps the idea 
> is that political rhetoric leads to criminal activity by 
> others, but the notion that this happens to any substantial 
> degree (as well as the assertion that violence, however we 
> may define it, is a disproportionately a malady of the 
> political right) do not strike me as self evident.
> 
> I suppose that you can always argue for the special 
> protection of those we regard as discrete, insular and 
> socially disadvantaged, but isn't it hard to do that without 
> some notion of what type of criticism (or verbal
> attacks) are permissible. If gays are in, how about 
> fundamentalist Christians and Muslims who also feel put upon 
> by the larger society. How about Jews? Need we have special 
> concern about rhetoric denouncing the "Jewish lobby"? After a 
> few easy cases (and maybe not even that many), I think it's 
> hard to make distinctions like this without advancing a 
> judgment that is either entirely subjective or based upon 
> ideological presuppositions.
> 
> But even if that's not the case, what about the impact of an 
> asymmetric rule that reflects this supposed ideological 
> asymmetry? Don't we expect rules to affect the behavior that 
> they govern? To paraphrase Scalia in R.A.V., if we allow one 
> side to fight freestyle while the other must follow the 
> Marquis of Queensbury rules, isn't it almost certain that, 
> human nature being what it is, those who can fight freestyle will?
> 
> Rick Esenberg
> Marquette University Law School
> 
> 
> 
> ________________________________________
> From: [EMAIL PROTECTED]
> [EMAIL PROTECTED] On Behalf Of Volokh, 
> Eugene [EMAIL PROTECTED]
> Sent: Monday, November 05, 2007 9:43 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory 
> against antigayspeech?
> 
>         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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