Brad writes of free speech doctrine: "[T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel.
we have long held that actual malice requires material falsity *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) <http://ssrn.com/author=357864> On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee <bp51...@windstream.net> wrote: > It's not about the Court saying that beliefs are mistaken, insubstantial, > plausible, logical, or comprehensible. It's about the Court determining > what is covered by the free exercise clause and what is not. Again, to > parallel the free speech guarantees, the court isn't determining if a > person's words are mistaken, insubstantial, plausible, logical, or > comprehensible when they say that free speech doesn't cover slander or > libel. > > > > That was the value of the Sherbert test because it established a way to > determine what exercise of religion is protected and what exercise of > religion is not, without making a determination on the merits of of the > religious beliefs that are the basis of the exercise in question. In my > opinion, the reason why I think Employment Division v Smith ranks right up > with Dred Scott v Sandford among the worst decisions the Supreme Court has > ever issued. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Saturday, February 14, 2015 10:25 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > Brad writes: > > "[T]he fact that people have wrongly tried [to] make religious freedom > claims doesn't mean we disregard all religious freedom claims. We ought to > be able to distinguish between the two." > > > > Although Brad thinks the law "ought" to be able to distinguish between > "wrong" and "correct" religious freedom claims, we can all agree that this > view is flatly inconsistent with Supreme Court precedent, correct? > > > "[I]t is not for us to say that their religious beliefs are mistaken or > insubstantial. Instead, our 'narrow function . . . in this context is to > determine' whether the line drawn reflects 'an honest conviction.' > > "Repeatedly and in many different contexts, we have warned that courts > must not presume to determine . . . the plausibility of a religious claim." > > "[R]eligious beliefs need not be acceptable, logical, consistent, or > comprehensible to others in order to merit First Amendment protection" > > - Jim > > On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee <bp51...@windstream.net> > wrote: > > I'ts not an all or nothing. The fact that the freedom of speech does not > protect slander and libel doesn't mean we disregard every other freedom of > speech claim. We are able to distinguish between the two. Similarly, the > fact that people have wrongly tried make religious freedom claims doesn't > mean we disregard all religious freedom claims. We ought to be able to > distinguish between the two. The difference between same sex relationships > and interracial relationships seems like one of those distinctions. The > difference between people of different races is not the same between the > difference between genders. That's why, for instance, the Negro Leagues in > baseball have gone by the wayside and yet nobody is saying that the players > of the WNBA should just try to make the teams in the NBA. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Saturday, February 14, 2015 8:48 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > Brad: > > > > The distinction you see between same-sex relationships and interracial > relationships makes sense to *you*. It surely does not make sense to > someone who opposes interracial marriages on religious grounds. > > > > > _______________________________________________ > 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.
