Your response clarifies the differences in our positions, for which I am grateful.
Just one brief comment: I would import the asymmetry that I earlier described into First Amendment jurisprudence, in much the same way that I totally reject Powell's mischievous "deconstruction" of race in his opinion in Bakke. (I have an article coming out soon that makes, at some length, the argument against Powell.) -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 08, 2007 2:13 PM To: Law & Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Perhaps, the use of the term "informal violence" here is a bit broad to be meaningful. We could distinguish between violence that is politically motivated and violence that, while not itself aimed at any political end, is asserted to be a response to political points of view which supposedly arouse sentiments against some group. There is, of course, haze around the boundaries of that, but I think it's a serviceable enough distinction to mean something to most people. As for politically motivated violence, it's far from obvious that this is uniquely - or even mostly - associated with political viewpoints that are commonly categorized as being on the right. In my lifetime (and I am not young), I could make a credible argument that most politically motivated violence in this country (and there has not been much) took place in the late 60's and early 70s and was almost entirely from the left. As to informal violence, Scott has a point. While I think that the categories of left and right mean something (if not always as much as we commonly assume they do), they don't seem very helpful here. I am not sure what it means to say, in 2007, that the KKK was a "right wing" organization other than that we have chosen to assign racism to the right. Many of the notorious southern segregationists - think Bilbo and Long - were, in many respects, men of the left. And they were racists. I assume that Professor Newsom might say that this reflects the lack of consensus about race on the left, but would argue that the attitudes that he wants to characterize as contributing to or constituting informal violence are most often associated with the right. But even if you think that's true (and can avoid the anachronism of assuming that "the right" in 1921 is like "the right" of 2007), I don't see where the left-right distinction helps in forming a set of principles to govern situations like these. It seems to me that political rhetoric on both the left and the right might have the potential to stimulate - or to be seized upon as a justification for - violence. But just as I would be reluctant to blame radical firebrands for property crimes or civil unrest, I don't know that that the Roman Catholic Church or evangelical Christians are responsible for the attack on Matthew Shepard. If there is an asymmetry that justifies an asymmetrical rule must have something to do with the nature of the victim than the source of the attack. The argument has to be that certain groups are more likely to be bullied so we ought to be more sensitive to speech directed at them. One problem with that is that the choice of vulnerable groups is necessarily ideological. Professor Newsom is not bothered by the potential social and political isolation of religious traditionalists because he thinks there is no moral equivalence between saying "don't visit violence on me" and saying, as he suggests traditionalists do, "don't keep me from visiting violence on others in order to follow my religious beliefs." But that requires assuming that these traditional religious beliefs visit violence on others. Certainly there are people who will have no problem making that assumption, but is it one that ought to be imported into First Amendment analysis? Another problem is that it is a static analysis. It assumes that asymmetrical rules don't produce asymmetrical behavior. This seems implausible as Scalia suggests. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, November 07, 2007 2:32 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). > > > _______________________________________________ > > > 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. 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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. _______________________________________________ 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. 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