I think where you and I disagree, Eugene, is on the question of what it means to advocate illegal action "at some indefinite future time." I think if the pre-condition on which the illegal action is to be based is known to the speaker and the audience to be certain and to occur in the near future, then Brandenburg and Hess are satisfied. If a minister urges his congregants to smoke marijuana, without more, I view that as general advocacy. If the minister urges his congregants to give marijuana to any child they see when they take their own kids to school -- when it is clear to everyone that the congregants take their kids to school everyday and, necessarily, will see other children when they do so -- I view that as urging imminent unlawful conduct.
It's not just that the illegal conduct would occur on many occasions. It is that the condition which will trigger the illegal action is certain and that the first of those many occasions when the illegal conduct is to occur is going to be in the very near future. Do you think a minister could be prosecuted consistent with the First Amendment under my hypothetical, Eugene? Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, May 13, 2012 7:56 PM To: Law & Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners "to punish children by hitting them on the bare buttocks with wooden dowels" Alan: So if a minister preaches the propriety of the frequent use of marijuana (as I’m told the Rastafarians do), he could be prosecuted as well, on the theory that people are likely to act on it some time soon? I would think that Hess v. Indiana’s distinction between advocacy of imminent conduct and “advocacy of illegal action at some indefinite future time” would be helpful to both the pro-marijuana minister and the pro-beating-children minister. Or is it really the case that advocating the general propriety of illegal conduct can be criminalized, so long as the illegal conduct would take place relatively often? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, May 13, 2012 4:53 PM To: Law & Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners "to punish children by hitting them on the bare buttocks with wooden dowels" The news story doesn't give us a lot of detail as to exactly what the pastor said in this case nor does it tell us much about his parishioners. But if the pastor's instructions to his parishioners are to do something unlawful if a certain pre-condition is satisfied and the pre-condition is sufficiently common that it will almost certainly occur in the very near future, I'm not sure I see the Brandenburg problem. Infants will cry and will fail to sit still. If a speaker instructs a group of parents with very young children to stick their children's hand in boiling water if they cry or fail to sit still, that seems pretty imminent to me. If the parishioners follow his instructions and he ratifies their conduct and tells them to continue to do so, I think that's more than abstract advocacy. ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, May 13, 2012 4:31 PM To: Law & Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners "to punish children by hitting them on the bare buttocks with wooden dowels" I don’t think that strict scrutiny can justify restrictions that are forbidden by Brandenburg. After all, in most advocacy-of-crime cases there’s a compelling interest in preventing crime, and a plausible argument that alternatives to suppression of advocacy – e.g., counterspeech and punishment of the criminal conduct – aren’t going to be as effective as suppression (plus those alternatives). Brandenburg, I think, is a judgment that speech restriction is just not a permissible means of serving the compelling interests, see generally http://www.law.ucla.edu/volokh/scrutiny.htm pts. II.B<http://www.law.ucla.edu/volokh/scrutiny.htm%20pts.%20II.B> & III (Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997)). And I think that’s as true for speech advocating child abuse as for speech praising rioters, speech advocating the propriety of holy war, and the like. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Sunday, May 13, 2012 4:24 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Minister convicted for teaching parishioners "to punish children by hitting them on the bare buttocks with wooden dowels" Eugene-what about strict scrutiny? I think there is a compelling interest in protecting children from being hit with wooden dowels Given the hidden nature of most such abuse, there is unlikely to be a lesser restrictive method to ensure children are not harmed. Marci On May 13, 2012, at 7:10 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I would think that such a conviction would likely be unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even without regard to any special religious freedom claim (note that Wisconsin courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to me that teaching parishioners the propriety of such conduct – even illegal conduct – doesn’t fit within the Brandenburg exception, because it isn’t intended to yield imminent lawless conduct; and I don’t think the general teachings would fit within the United States v. Williams solicitation exception, since no specific act is being discussed. On the other hand, it’s possible that pastoral counseling of a specific parent, telling the parent to engage in illegal child abuse (assuming the discipline is indeed illegal) might qualify as solicitation of crime and not just abstract advocacy. Or is this analysis mistaken? Relatedly, could ministers of churches that teach that marijuana is a sacrament be prosecuted for conspiracy to engage in criminal possession or receipt of marijuana? Could imams who preach the propriety of jihad be prosecuted for conspiracy to engage in jihad, just based on the teaching alone? Eugene http://host.madison.com/wsj/news/local/crime_and_courts/motion-to-dismiss-charges-against-black-earth-pastor-denied/article_3c17db6a-9b01-11e1-967a-001a4bcf887a.html A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old. Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church's literal interpretation of the Bible. The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom. Circuit Judge Maryann Sumi found that Caminiti had "a sincerely held religious belief" as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state's child abuse statute "places a burden on his sincerely held religious belief." "Scripture doesn't specify how and when the rod should be used," Sumi said, adding that Caminiti also was willing to modify the church's practices to comply with the law.... _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.