RE: Free Exercise, Free Speech, and harm to others
Eugene's analogies in defense of not requiring an exemption for the religious use of wine don't hold up. None of them implicates the difficult history involving evangelical Protestants and liturgical Protestants, Roman Catholics, Jews, and Eastern Orthodox. His analogies require that we ignore history, a dangerous thing for the law to do. We have had some experience with attempts to impose prohibition without exempting the religious use of wine. None of those experiences could be called happy or constructive. In one case the Arizona AG stipulated, in four lawsuits brought to challenge a prohibition amendment that contained no exemption for the religious use of wine, that he would not enforce the ban against clergymen. Two years later, the Arizona voters approved a prohibition amendment with an exemption for at least the *Christian* religious use of wine. In Oklahoma, the state Supreme Court read an exemption into the bone dry prohibition law in an 1918 case. (The Oklahoma Supreme Court reaffirmed this decision 40 or 50 years ago.) The reasons why the first Arizona prohibition amendment failed to exempt the religious use of wine had nothing to do with the difficulties of prohibition enforcement. The Drys backed off largely because of pressure from Episcopalians. The ostensible reason was that the Drys didn't want to be seen as religious bigots. In Oklahoma, it is clear that an anti-Catholic (not to mention anti-Episcopalian) bias had everything to do with the failure to include the exemption. Enforcement of a prohibition regime was a non-issue because the leader of the Dry forces candidly admitted that he would have cut a deal with Catholics and Episcopalians if they had been willing to play along. The experience during National Prohibition is mixed on the point of enforcement. Many Drys believe that large amounts of wine would up being consumed outside of religious ceremonies. But I don't think that the evidence is clear cut on this point. But no one could plausibly argue that the enforcement difficulties that the country faced in the 1920s had anything to do with the exemption for the use of wine by Christians and Jews. Among the disastrous consequences of National Prohibition (leaving to one side the draconian developments in criminal procedure and the growth of the mob) was the conversion of a nation of beer and wine-drinkers into a nation of distilled spirits drinkers. The truth was that it made economic sense to bootleg distilled spirits rather than beer or wine because there was more alcohol per volumetric measure in the case of whiskey and the like than there was with beer or wine. It made economic sense to manufacture and smuggle distilled spirits, and thirsty Americans in the 1920s accommodated themselves to the liquor that was available. (A famous song of the times went Gin, gin, gin, gin, my God how the money rolls in. It didn't go wine, wine, wine, wine, etc.) There simply is no rational basis for thinking or believing that carving out the exemption would make enforcement impossibly difficult or even marginally more difficult. Our history and experience teach us otherwise. The liquor that we are likely to see in a prohibition regime is the distilled stuff, not beer and wine, for, as I have indicated, the obvious economic reasons. Legislative discretion, it seems to me, has its limits. With all due respect, Holmes was right on the matter of experience and logic. And he was certainly right when it comes to history and experience that go to the heart and center of what this country is. The Drys in Arizona (on the second try) and the Oklahoma Supreme Court got it right. Appeal to abstractions and unsound analogies only become a cover for indefensible results on the merits, results that we avoided, even in a time when religious bias was stronger than it is now. Why, on earth, in the name of some abstraction, would we ever want to do worse than the Drys of the early 20th century did? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, March 24, 2005 7:43 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I appreciate Tom's remarks, but I'm a bit skeptical on both counts. As to item (2), I would think that in the wake of Thomas v. Review Bd. people could claim an exemption even if they aren't members of an identifiable religious group, so long as they're sincere. Perhaps courts would be likely to question the sincerity of a would-be alcohol user's religious beliefs if he doesn't belong to a well-known religious group that has well-known religious uses for alcohol. But I don't think they'd just be able to categorically avoid the possibility that many people would claim that God calls on them to consume the sacred beverage. As to item (1), though, why should we necessarily assume that other jurisdictions' exemptions shows that there's not much cost
RE: Free Exercise, Free Speech, and harm to others
There surely are good political and practical reasons to exempt sacramental wines from a prohibition of alcohol, despite the burden this may put on law enforcement. This doesn't mean that a sacramental wine exemption doesn't undermine the government's compelling interest -- only that legislatures may conclude that they're willing to sacrifice some measure of the compelling interest in order to ease the burden on religious objectors (or to get a political consensus to enact or to enforce the law). The question is whether the same reasons justify courts doing the same, as a matter of constitutional obligation under a strict scrutiny regime. I don't see how this is so, notwithstanding the history of legislative accommodations (or even judicial accommodations as a matter of statutory construction). When a legislature concludes that it really does want to try to accomplish the compelling interest to the extent possible, I don't see why a more half-measures approach by other legislatures -- which simply reflects the legislature's different weighing of the admittedly compelling interest and the concerns of religious objectors -- should foreclose this full-bore legislature from trying to achieve its goals. Now one possible argument, which Michael's post suggests, is that the marginal enforcement burdens created by the exemption are small compared to the overall enforcement burden created by widespread flouting of the law by others. Can that, however, be enough to show that a total ban can't pass strict scrutiny? If it is, then courts would have to accept religious objections to marijuana bans, LSD bans, and so on -- after all, there too our best guess is that the enforcement headaches created by the religious objections would be very small compared to the enforcement headache created by massive nonreligious violations, no? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, March 28, 2005 3:53 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others Eugene's analogies in defense of not requiring an exemption for the religious use of wine don't hold up. None of them implicates the difficult history involving evangelical Protestants and liturgical Protestants, Roman Catholics, Jews, and Eastern Orthodox. His analogies require that we ignore history, a dangerous thing for the law to do. We have had some experience with attempts to impose prohibition without exempting the religious use of wine. None of those experiences could be called happy or constructive. In one case the Arizona AG stipulated, in four lawsuits brought to challenge a prohibition amendment that contained no exemption for the religious use of wine, that he would not enforce the ban against clergymen. Two years later, the Arizona voters approved a prohibition amendment with an exemption for at least the *Christian* religious use of wine. In Oklahoma, the state Supreme Court read an exemption into the bone dry prohibition law in an 1918 case. (The Oklahoma Supreme Court reaffirmed this decision 40 or 50 years ago.) The reasons why the first Arizona prohibition amendment failed to exempt the religious use of wine had nothing to do with the difficulties of prohibition enforcement. The Drys backed off largely because of pressure from Episcopalians. The ostensible reason was that the Drys didn't want to be seen as religious bigots. In Oklahoma, it is clear that an anti-Catholic (not to mention anti-Episcopalian) bias had everything to do with the failure to include the exemption. Enforcement of a prohibition regime was a non-issue because the leader of the Dry forces candidly admitted that he would have cut a deal with Catholics and Episcopalians if they had been willing to play along. The experience during National Prohibition is mixed on the point of enforcement. Many Drys believe that large amounts of wine would up being consumed outside of religious ceremonies. But I don't think that the evidence is clear cut on this point. But no one could plausibly argue that the enforcement difficulties that the country faced in the 1920s had anything to do with the exemption for the use of wine by Christians and Jews. Among the disastrous consequences of National Prohibition (leaving to one side the draconian developments in criminal procedure and the growth of the mob) was the conversion of a nation of beer and wine-drinkers into a nation of distilled spirits drinkers. The truth was that it made economic sense to bootleg distilled spirits rather than beer or wine because there was more alcohol per volumetric measure in the case of whiskey and the like than there was with beer or wine. It made economic sense to manufacture and smuggle distilled spirits, and thirsty Americans
RE: Free Exercise, Free Speech, and harm to others
See my interlineations. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 28, 2005 7:16 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others There surely are good political and practical reasons to exempt sacramental wines from a prohibition of alcohol, despite the burden this may put on law enforcement. This doesn't mean that a sacramental wine exemption doesn't undermine the government's compelling interest -- only that legislatures may conclude that they're willing to sacrifice some measure of the compelling interest in order to ease the burden on religious objectors (or to get a political consensus to enact or to enforce the law). MDN: I don't think that our history permits us to say that the government's interest in not granting an exemption for the religious use of wine is compelling. The question is whether the same reasons justify courts doing the same, as a matter of constitutional obligation under a strict scrutiny regime. I don't see how this is so, notwithstanding the history of legislative accommodations (or even judicial accommodations as a matter of statutory construction). When a legislature concludes that it really does want to try to accomplish the compelling interest to the extent possible, I don't see why a more half-measures approach by other legislatures -- which simply reflects the legislature's different weighing of the admittedly compelling interest and the concerns of religious objectors -- should foreclose this full-bore legislature from trying to achieve its goals. MDN: Again, prohibiting the religious use of wine is not a compelling state interest. That, rather than prohibiting the use of wine becomes the question, given the facts regarding exemptions of the religious use of wine in the period 1840-1920. See my remarks below. Now one possible argument, which Michael's post suggests, is that the marginal enforcement burdens created by the exemption are small compared to the overall enforcement burden created by widespread flouting of the law by others. Can that, however, be enough to show that a total ban can't pass strict scrutiny? If it is, then courts would have to accept religious objections to marijuana bans, LSD bans, and so on -- after all, there too our best guess is that the enforcement headaches created by the religious objections would be very small compared to the enforcement headache created by massive nonreligious violations, no? MDN: (1) The analogy to marijuana or LSD is unsound. We don't have the same fundamental core set of concerns about them that we do about the religious use of wine, especially by Catholics and liturgical Protestants. Wine has, for better or worse, a different history than the other substances. I might grant that the marijuana and LSD cases might be difficult to decide, but I don't think that they control the wine case or vice versa for entirely practical -- and rational -- reasons. (2) We cannot look at marginal and core or overall enforcement issues out of context. Failure to exempt the religious use of wine probably leads to contempt for the basic prohibition regime, thus making enforcement, as a general proposition, all the more difficult. Consider the 1920s. The *cultural* bias of National Prohibition was bad enough. Matters would have been even worse if Drys had destroyed the Catholic Mass, the Orthodox Divine Liturgy, the Anglican Holy Communion, the (German-American) Lutheran Eucharistic service, and the Jewish Seder. Fear of the probable backlash to such religious destruction offers up one possible explanation for the presence of the exemption in a very liberal form in section 6 of Title II of the Volstead Act. (3) The exemption for the religious use of wine first appeared in the early 19th century, at a time when evangelical Protestants had not yet abandoned wine for grape juice. Welch's pasteurized grape juice showed up some time after the Civil War. (Welch, or his wife, was a devout Methodist.) It was only then that evangelical Protestants, in large numbers, egged on by the WCTU and others, abandoned wine. By 1900, therefore, the question was starkly posed: whether to continue to grant the exemption even though evangelicals no longer needed it to protect their religious practices. A refusal to continue extend protection to others, under the circumstances, looks very much like bias and bigotry. (Although it is true that the wording of the exemptions adopted in some of the states, particularly two or three Southern states, makes it unlikely that these exemptions protected any group other than evangelical Protestants. The Volstead Act section 6 form, by contrast, specifically protects Catholics and Jews, as well as Eastern Orthodox and liturgical Protestants.) (4) Eugene has not offered up a plausible reason (other than, by implication, Smith) for ignoring all of the lessons
RE: Free Exercise, Free Speech, and harm to others
(Apologies for delay in posting ...) I haven't considered the assisted-suicide free exercise claim fully, but there are some considerations that seem relevant to me. I think that free exercise law should start off with the principle that causing harm simply to yourself because of your sincere religious conscience is prima facie protected by the basic logic of religious freedom (you have a right to practice your faith as long as it doesn't harm others). I would be inclined, for example, to allow people to handle poisonous snakes in worship services as long as there were strong safety precautions to avoid endangering others. However, that's not the end of the matter, because I agree that there can be complicated questions about whether harms to nonconsenting persons or to society will accompany or follow an exemption. In the assisted-suicide case, those harms include, as Eugene notes, the pressure in the future on terminal patients who do not fully desire to end their lives. At least a couple of factors about the assisted-suicide case make me extremely leery about having judges recognize any free exercise claim. (1) Only one state allows assisted suicide, and to my knowledge no state with a law against it makes any exception for claims of religious or other conscience. The legal practice of other jurisdictions is at least somewhat objective evidence of the strength of the government's concerns -- i.e., of the threat to public peace and safety that would follow from an exemption. When virtually every state bars a practice and gives no conscience exemptions, a court would have to be very aggressive to conclude that this pattern doesn't reflect strong societal concerns. Compare that with, at the other extreme, the fact that virtually no jurisdiction in the nation bars the serving of small amounts of alcohol in a worship service. In that instance, it would seem almost impossible for one county to show that its circumstances are so special as to necessitate prohibiting the activity. (There are of course intermediate issues where the practice of jurisdictions varies -- and as Eugene has noted before, different states may have different circumstances bearing on the particular question involved. But in these two cases the evidence of other jurisdiction's legal rules seems clear, and it would be hard to show that circumstances are so different in any one given state than everywhere else.) (2) A free exercise claim concerning assisted suicide is, by its nature, not limited to the particular practice of an identifiable religious group or subgroup. It is, instead, the kind of claim that most any individual in a terminal situation can assert. Indeed, there have been significant arguments that the decision to end one's life is inherently religious (I think that this argument appeared in some of the briefs in Glucksberg and in Vacco v. Quill; it also appears in Ronald Dworkin's book and elsewhere). This does not mean that the claim falls outside free exercise review -- free exercise protects individual conscience as well as communally formed practices. But it does greatly increase the consequences to public peace and safety or the lives of others from granting an exemption; no longer can one say (as with the snake handlers, or Jehovah's Witnesses refusing transfusions) that only this predictable group and a few others will claim the exemption. Rather, as the Dworkin argument suggests, recognizing an exemption here comes close to striking down the assisted-suicide law in total; or at least it goes a long way down that road. With such a broad effect come all of the reasons to be leery about assisted suicide in general. The common-sense argument for exemption is that it allows the government to act in the majority of cases while avoiding suppressing religious exercise in a minority of cases. If the exemption can't be confined somehow -- if the exception swallows the rule -- then that common-sense argument goes away, and courts should be much more leery about the consequences of exemption to public peace and safety. Tom Berg _ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tue 3/15/2005 6:47 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I agree that it was only one of the problems -- but I think it was an important one. I've argued that elsewhere extensively, and don't want to rehash it here. But consider another unhypothetical scenario. In Washington v. Glucksberg, the Court concluded that bans on assisted suicide didn't have to be judged under strict scrutiny. In doing so, the Court managed to avoid having to decide the moral question of whether there's a compelling interest in prolonging people's lives when they don't want them prolonged. It also managed to avoid having to decide the empirical question of whether allowing such assisted suicide would end up letting relatives or doctors
Re: Free Exercise, Free Speech, and harm to others
Eugene, You wrote, I'm not sure that the Free Exercise Clause should be read as requiring the government to bear such harms; I think the Court is right to basically treat it as an antidiscrimination rule, in which case evenhanded restrictions are permissible. But perhaps that's not right: Maybe just like the Free Speech Clause is read as providing modest protection against content-neutral restrictions and extremely strong protection against content-based restrictions, the Free Exercise Clause should be read likewise. But that, I think, is an argument for a modest sort of intermediate scrutiny (if such a thing as possible), and not for full-on strict scrutiny (or more) that we have for content-based speech restrictions. Maybe it's ultimately a good argument -- but if it prevails, it would be (and should be) precisely because it's much less ambitious than the strict scrutiny advocates by defenders of Sherbert and Yoder. My own layman's view is that the Free Exercise clause should actually provide more protection than the Free Speech clause, simply due to the nature of the activity in question. In my own observations, when a person speaks, invoking the Free Speech clause, it is generally because they feel a desire to speak or a need to speak. Rarely, though, is it because they are under an external obligation to speak. In contrast, the adherents of any religion that is founded upon an understanding of a divine being (for lack of a broader term) who requires obedience are going to be compelled externally to do certain things, some of which the person might prefer not to do but does nonetheless because they understand themselves to be under an external obligation to do so. The vast majority of these requirements, such as meatless Fridays during Lent for Roman Catholics, abstaining from premarital and extramarital sexual activity for Roman Catholics, evangelical protestants, and others as well (these are simply the two communities which I have firsthand knowledge of), and so forth, are not likely to cause a conflict with neutral, generally applicable law. When there is a conflict, however, then the adherent is placed in a position of having to choose between faithfulness to their God and obedience to the laws of man. There will be times when it is necessary to compel the latter (for example, to use an extreme case, somebody whose faith involves human sacrifice). However, if you look at the conscientious objector status, you see an example where a person, on the basis of conscience, is exempted from military duty they would otherwise be obligated to serve. We rightly understand that, even in a matter as compelling as our national security, we must tread very lightly when we consider forcing somebody to do something which they understand to be morally incompatible with their perception of right and wrong. When you look at a religious adherent, you take a step further to whether we can or should force a person to do something which is not merely incompatible with their own understanding of right and wrong but is in fact prohibited by their God. This is why I believe that the Free Exercise clause is vastly more than an antidiscrimination measure. The use of the word Exercise infers activity that is protected. It's not merely the belief in a religion or the status of being an adherent to a religion. It is the free exercise of religion. This the essence of religious freedom: That a person will not be required, barring some substantive kind of proven necessity, to act contrary to the demands placed on them by their God. If we reduce it to antidiscrimination protection, then we give legislators and judges free reign to run roughshod over people whose faith they either don't like or simply don't care about one way or another, as long as everybody is required to do the same things. Stephen Carter's Culture of Disbelief gives clear examples that we can't simply assume that legislators (or judges, for that matter) are going to protect free exercise without being compelled to do so by strong Constitutional protection that goes beyond simply not singling people out for discrimination. Brad Pardee ___ 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.
Re: Free Exercise, Free Speech, and harm to others
Eugene: You suggested that we don't know the meaning of the free speech clause, and the result is that we should read it very broadly, to protect even speech-related harm to others. (And would that judgment ultimately be made by...judges?) But because we think we know more about the meaning of free exercise, it should be read much more narrowly, to protect no harm, even when it might be an incident of true exercise of religion? Do I have that right? Richard Dougherty Volokh, Eugene wrote: I actually agree with Greg on much here: The reason that we allow people to inflict various harms on others via their speech has a lot to do with *the way* the harm is inflicted: When harm is inflicted by persuading, informing, or offending people with the content of speech, we treat that infliction of harm as privileged. And that's the reason that I think it's a mistake to say (and Greg hasn't said it, but I think others have), The Free Speech Clause caselaw gives people the constitutional right to harm others through speech, so the Free Exercise Clause should be interpreted as giving people the constitutional right to harm others through religiously motivated conduct. The Free Speech Clause caselaw lets people harm others through some specific speech-related ways. It doesn't follow that the Free Exercise Clause lets people harm others in other ways -- whether through discriminating against them, trespassing on their property, breaching contracts, and so on, even if the harms are comparatively minor. Eugene ___ 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.
RE: Free Exercise, Free Speech, and harm to others
I'm not saying that this is because of the original meaning, though I think the original meaning as to the Free Exercise Clause supports my position. I think that a reading of the Free Exercise Clause that gives me the right to inflict harms on you, for no other reason than that I think my God requires (or motivates) me to do this, would be a pretty bad reading. If the original meaning commanded this rule, then I'd conclude that we ought to follow it. But if it doesn't command it -- and neither does the precedent, or anything else -- then I don't see why such a rule should be adopted. Religious freedom defenses resting on the arguments that say[ing] there are twenty gods, or no God . . . neither picks my pocket nor breaks my leg, that religion should be immun[e] . . . from civil jurisdiction, in every case where it does not trespass on private rights or the public peace, and that we should be free to practice our religions so long as we do not injure others (Jefferson, Madison, McConnell) are appealing. Arguments that others' religious conduct picks my pocket and breaks my leg, but it should still be constitutionally protected, that religion should be immune from civil jurisdiction, even in cases where it does trespass on private rights, and that we should be free to practice our religions even when we injure others are not. But if you think otherwise, what do you think of the three hypos that I pointed to (and which I repeat below)? Do you think that scenarios A and B in the hypos should be treated the same? And if not, doesn't it suggest that harms caused through the communicative impact of speech ought to be treated differently than harms caused by the noncommunicative impact of conduct, even when the speaker has a religious motivation for the conduct? Eugene 1. (A) Larry Flynt inflicts emotional distress on Jerry Falwell by publishing his vitriolic ad parody in Hustler Magazine; when sued under the IIED tort, Flynt raises his free speech rights as a defense. (B) Mary Glynt inflicts emotional distress on Jerry Falwell by standing outside his window at night with a bullhorn; when sued under the IIED tort, Glynt raises her free exercise rights as a defense -- she claims (assume that the claim is sincere) that she feels a religious obligation to remonstrate this way with heretics (and she considers Falwell to be one). 2. (A) The NAACP interferes with Claiborne Hardware's business relations by publicizing the names of its visitors, and urging people to boycott Claiborne; when sued under the interference with business advantage tort, it raises its free speech rights as a defense. (B) Operation Rescue interferes with an abortion clinic's business relations by blocking the entrance to the clinic; when sued under the same tort, it raises its (or its members') free exercise rights as a defense -- it claims (assume that the claim is sincere) that its members feel a religious obligation to protect fetuses this way. 3. (A) A modern-day Schenck tries to interfere with the war effort by publishing books, leaflets, and Web sites urging people to vandalize munitions manufacturers; when prosecuted for counseling illegal conduct, he raises his free speech rights as a defense. (B) His religiously pacifist cousin Penck tries to interfere with the war effort by blocking the entrance to a military contractor's building; when prosecuted for trepassing, he claims (assume that the claim is sincere) that he feels a religious obligation to fight the war this way. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Richard Dougherty Sent: Tuesday, March 15, 2005 10:31 AM To: Law Religion issues for Law Academics Subject: Re: Free Exercise, Free Speech, and harm to others Eugene: You suggested that we don't know the meaning of the free speech clause, and the result is that we should read it very broadly, to protect even speech-related harm to others. (And would that judgment ultimately be made by...judges?) But because we think we know more about the meaning of free exercise, it should be read much more narrowly, to protect no harm, even when it might be an incident of true exercise of religion? Do I have that right? Richard Dougherty Volokh, Eugene wrote: I actually agree with Greg on much here: The reason that we allow people to inflict various harms on others via their speech has a lot to do with *the way* the harm is inflicted: When harm is inflicted by persuading, informing, or offending people with the content of speech, we treat that infliction of harm as privileged. And that's the reason that I think it's a mistake to say (and Greg hasn't said it, but I think others have), The Free Speech Clause caselaw gives people the constitutional right to harm others through speech, so the Free Exercise Clause should be interpreted as giving
RE: Free Exercise, Free Speech, and harm to others
I again appreciate Alan's remarks, but I'm not sure that they fully deal with the argument. (1) I assume Alan would conclude that there's no free exercise clause right to block even the entrance to a hardware store. (Imagine that someone believes the store sells some environmentally unsound or otherwise immoral product, and feels a religious motivation to block such sales.) So it's not really abortion rights that are doing the work, or even the medical procedures vs. mere hardware distinction. What's doing the work, I think, is that my religion doesn't give me the right to block entrances to your property. (2) Alan's next argument is that the harm of blocking entrances is greater than merely the harm of a boycott or of advocacy. But I'm not sure that this is so. The economic harm of blocking an entrance for a few days, or even for a few hours in a day, is probably much less than the economic harm caused by a more-or-less three-year-long boycott. Yet presumably the religious blockers could be arrested and taken away 15 minutes after they start blocking the entrance (even if they announce that they'll only do it for a day, so as to minimize the harm). They don't have the right to inflict even modest economic harm on me through their religious conduct. Yet they have the right to inflict much greater economic harm on me by organizing a political boycott. (3) As to Mary Glynt, say that she's not using a bullhorn but some noise but noncommunicative device (say just banging pots and pans, and say her intent and effect is not convey a message but just to make noise). Allowing such noncommunicative banging for religious reasons but not nonreligious reasons wouldn't violate the rule against content- or viewpoint-based speech restrictions -- there'd be no speech restriction involved here. Yet I take it the result is the same; again, what's doing the work is not the content-neutrality rule, but the principle that my religion doesn't give me the right to interfere with your sleep through my noncommunicative behavior. Alan, am I mistaken on these points? If I'm right, then it seems to me that we do have the very situation I described: The Free Speech Clause quite properly gives people the right to inflict certain harms on others through the communicative impact of speech. But the Free Exercise Clause does not give people the right to inflict comparable harms on others through their noncommunicative conduct, even if the conduct is religious motivated or compelled. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein Sent: Tuesday, March 15, 2005 10:40 AM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others Eugene, let me respond to your three examples in this post. Then I'll continue discussing the issues I raised in a second post. I would allow the abridgement of free exercise rights in all three of Eugene's examples -- for the reasons described below. 1. (A) Larry Flynt inflicts emotional distress on Jerry Falwell by publishing his vitriolic ad parody in Hustler Magazine; when sued under the IIED tort, Flynt raises his free speech rights as a defense. (B) Mary Glynt inflicts emotional distress on Jerry Falwell by standing outside his window at night with a bullhorn; when sued under the IIED tort, Glynt raises her free exercise rights as a defense -- she claims (assume that the claim is sincere) that she feels a religious obligation to remonstrate this way with heretics (and she considers Falwell to be one). Mary engages in expressive activities (using a bullhorn to communicate a message.) She does so in a context which is typically prohibited (using a bullhorn in a residential neighborhood at night) and the prohibition of such expressive activities is upheld against free speech review. I don't believe that religiously motivated speech or speech with religious content is exempt from speech regulations that non religious speakers or speech is subject to. The free speech clause prohibition against content and viewpoint discrimination trumps free exercise rights. Alternatively, Mary's speech activities might be viewed as intentional infliction of emotional distress and subject to sanction on that ground. I assume she could be liable for her actions under free speech doctrine. Again, I do not think that religiously motivated speech or speech with religious content that causes emotional distress can be treated more favorably than non religious speakers or speech that causes emotional distress. 2. (A) The NAACP interferes with Claiborne Hardware's business relations by publicizing the names of its visitors, and urging people to boycott Claiborne; when sued under the interference with business advantage tort
RE: Free Exercise, Free Speech, and harm to others
But Eugene's position is also unattractive, I would suggest, because it asserts that we should be free to practice our religion as long as it does not harm others, and the government determines what is a harm to others, without any constitutional review of that determination by the courts. I think that when you add that second assertion, his reading of the Free Exercise Clause becomes unattractive, and in many cases just as out of line with common intuitions about the scope of religious freedom as protecting the religious conduct arguably would be in his hypotheticals. Under Eugene's position, if the county board decides that this shall be a dry county -- say, no serving of alcohol to any group of persons -- then the serving of wine at a Catholic mass or the Jewish seder is barred with no constitutional objection. Under Eugene's view, the county board can say all citizens of this county have a 'private right' not to have anyone in the county drinking alcohol, or it can say even the smallest serving of alcohol in a communion or seder cup threatens the public peace or harms others. This is because under Eugene's view, the legislature can define anything as a private right or a harm or a threat to public peace. (Even if the court can first declare the mass or seder protected under Eugene's common law religious freedom approach, his position, as I understand it, is that if the county board comes back and explicitly declares the religious conduct illegal, the courts then may not question that.) The central worship service of Catholicism and other faiths can be barred or drastically altered by the coercive force of law even though the activity goes on regularly elsewhere across the nation without significant real-world harm. Perhaps Eugene would respond, This seems a perfectly attractive implication of religious liberty to me. But I doubt he'd say that, and if he did, I think he would be out of line with most common intuitions about the scope of religious freedom. Or he might say, Yes, this is an unattractive result -- it would be great to protect the mass or other serving of small amounts of sacramental alcohol -- but we have to accept this unattractive result because it follows from the best theory of religious freedom. But in that case, I would make two responses: (1) his theory no longer can lay claim to be obviously the one whose applications accord with common intuitions; and (2) his theory is a good deal more about institutional competence to measure things like private rights and public peace than it is about the normative principle of religious freedom. I don't think it's obvious that these concepts are undefinable by courts and therefore we have to defer to whatever the political branches say. The example of Jefferson's neither breaks my leg nor picks my pocket is revealing because it invokes rights in one's physical integrity and one's property that are individualized (rather than diffuse social effects) and are part of the basic common-law framework that the Framers would have assumed. I don't think it follows from the Jefferson quote that the legislature can define whatever it wants as a private right or as an injury to another, without any further questions. Tom Berg, University of St. Thomas (Minnesota) _ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tue 3/15/2005 12:42 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I'm not saying that this is because of the original meaning, though I think the original meaning as to the Free Exercise Clause supports my position. I think that a reading of the Free Exercise Clause that gives me the right to inflict harms on you, for no other reason than that I think my God requires (or motivates) me to do this, would be a pretty bad reading. If the original meaning commanded this rule, then I'd conclude that we ought to follow it. But if it doesn't command it -- and neither does the precedent, or anything else -- then I don't see why such a rule should be adopted. Religious freedom defenses resting on the arguments that say[ing] there are twenty gods, or no God . . . neither picks my pocket nor breaks my leg, that religion should be immun[e] . . . from civil jurisdiction, in every case where it does not trespass on private rights or the public peace, and that we should be free to practice our religions so long as we do not injure others (Jefferson, Madison, McConnell) are appealing. Arguments that others' religious conduct picks my pocket and breaks my leg, but it should still be constitutionally protected, that religion should be immune from civil jurisdiction, even in cases where it does trespass on private rights, and that we should be free to practice our religions even when we injure others are not. But if you think otherwise, what do you think of the three hypos that I pointed to (and which I repeat below)? Do you
RE: Free Exercise, Free Speech, and harm to others
Eugene, you took the route I didn't expect, which is to say that the suppression of the mass by a no-alcohol law would not be constitutionally troubling under our most common intuitions about religious freedom. I strongly suspect that most courts following the Sherbert/Yoder approach would disagree and would mandate an exemption. Indeed, I think that courts following Sherbert/Yoder would be more likely to mandate alcohol exemptions than peyote exemptions -- which themselves have been quite common under the Sherbert/Yoder approach (see, e.g., three USSCT dissenting justices in Smith finding no compelling interest, versus O'Connor concurring alone finding a compelling interest; see also Smith v. Employment Division, 763 P.2d 146 (Or. 1988); Whitehorn v. State, 561 P.2d 539 (Okla. Crim. App. 1977); State v. Whittingham, 504 P.2d 950 (Ariz. App. 1973); People v. Woody, 394 P.2d 813 (Cal. 1964); Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984)). It is true that alcohol causes more deaths and injuries than peyote, but alcohol is also far more widespread and permitted in many jurisdictions, and for most people small amounts of wine are harmless (or even of some medicinal value). Moreover, and importantly, some of the peyote-exemption cases noted that there were statutory exemptions for sacramental peyote in other jurisdictions, and that this undermined the assertion of a compelling interest under Sherbert/Yoder; indeed, exemptions or an absence of regulation have regularly been cited in free exercise cases generally as evidence that a state's interest is not compelling. This argument would be many, many orders of magnitude stronger in the case of an alcohol ban in a dry county (and that was my hypothetical, not National Prohibition). A dry county would be almost alone among thousands of governmental units in prohibiting all public serving of alcohol including in sacramental settings. The Catholic church would convincingly say, Look at the hundreds or thousands of jurisdictions where sacramental wine is permitted either by exemption or because there is no ban in the first place; and there's no evidence that the sacramental use has increased deaths or injuries in any significant amount. In that light, how can you, dry county, claim that prohibiting our use is a compelling necessity? I'm quite confident that most courts applying Sherbert/Yoder to a dry county would mandate the wine exemption, and even more readily than the peyote exemption. But I too would be interested in what others on the list think. Tom Berg _ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tue 3/15/2005 4:32 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I support sacramental wine exemptions as a policy matter, but I don't think they'd be constitutionally mandated even under strict scrutiny. Alcohol contributes to the deaths of 100,000 people a year, including about 15,000 innocent bystanders. I'm not an expert on Prohibition history, but my guess is that a sacramental wine exemption -- unless it's accompanied with some very intrusive policing -- would allow a considerable amount of leakage into the black market, and would more broadly interfere with enforcement. (A minister who gets a shipment of sacramental wine for mass can easily get drunk, and then drive drunk; people who get wine for Passover seders can do the same; and it's much easier to smuggle alcohol if you can claim Oh, officer, this batch is for sacramental use -- here are some papers that say so.) In practice, an alcohol prohibition is likely to be so underenforced that this leakage doesn't matter much -- but I quite doubt that a court applying the Sherbert/Yoder-era regime would find as a matter of constitutional fact that the sacramental exemption is likely to be harmless enough that the government won't satisfy strict scrutiny. Instead, a court would likely reason the way O'Connor did in Smith, especially since alcohol seems to be much more deadly than peyote. Am I mistaken? Do people think that even if Sherbert/Yoder-era strict scrutiny had been applied to an alcohol ban, an exemption would have been or should have been carved out, despite how deadly alcohol can be? More broadly, I do ultimately support the Smith regime, which keeps the courts out of the business of deciding as a *constitutional* matter which harms to others are real harms and which aren't. As I argue in my Common-Law Model paper, that business was one of the problems of the Lochner era cases, where some of the decisions (see, e.g., Adair) were indeed based on a court's judgment that discrimination isn't a real harm that the legislature can try to avoid. At the same time, for reasons I explain there, I think the state RFRA model, where courts are given the power to carve out exemptions in the first instance, subject to legislative override, is better than either pure Smith
RE: Free Exercise, Free Speech, and harm to others
I'd say that the problem of deciding as a constitutional matter which harms to others are real harms was only one problem of the Lochner cases. At least two other problems were present there that are not present for free exercise exemption cases: (1) The asserted constitutional right in the Lochner cases rested on a dubious or at least uncertain ground, substantive due process, versus an explicit textual provision like free exercise, which has an extensive background and history tied to the decision to enact it. That background and history includes the use of terms like private rights and public peace, which it seems doubtful Madison and others would have meant to collapse into whatever any legislature or political body says is a harm. (2) Challenges under Lochner logically aimed to strike down the entire law as an interference with economic liberty in all its applications, whereas a free exercise challenge to a generally applicable law seeks only an exemption for the claimant and others similarly situated. It is indeed more difficult and complicated, and more a sortie into basic policy questions, to say that a law as whole does not prevent real harms than to say that an exemption for a particular claimant will not cause real harms. In the latter kind of analysis, judges can look at the facts and record adduced as to this litigant and others like him; they are engaged in large part in the fitting of particular facts into broader principles, which is what judges commonly do. Tom Berg _ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tue 3/15/2005 4:32 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others . . . More broadly, I do ultimately support the Smith regime, which keeps the courts out of the business of deciding as a *constitutional* matter which harms to others are real harms and which aren't. As I argue in my Common-Law Model paper, that business was one of the problems of the Lochner era cases, where some of the decisions (see, e.g., Adair) were indeed based on a court's judgment that discrimination isn't a real harm that the legislature can try to avoid. At the same time, for reasons I explain there, I think the state RFRA model, where courts are given the power to carve out exemptions in the first instance, subject to legislative override, is better than either pure Smith or pure Sherbert. In any event, I realize the Smith regime reaches some unappealing results -- but I don't think that as to sacramental wines, Sherbert or Yoder would likely reach any different results. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C. Sent: Tuesday, March 15, 2005 1:34 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others But Eugene's position is also unattractive, I would suggest, because it asserts that we should be free to practice our religion as long as it does not harm others, and the government determines what is a harm to others, without any constitutional review of that determination by the courts. I think that when you add that second assertion, his reading of the Free Exercise Clause becomes unattractive, and in many cases just as out of line with common intuitions about the scope of religious freedom as protecting the religious conduct arguably would be in his hypotheticals. Under Eugene's position, if the county board decides that this shall be a dry county -- say, no serving of alcohol to any group of persons -- then the serving of wine at a Catholic mass or the Jewish seder is barred with no constitutional objection. Under Eugene's view, the county board can say all citizens of this county have a 'private right' not to have anyone in the county drinking alcohol, or it can say even the smallest serving of alcohol in a communion or seder cup threatens the public peace or harms others. This is because under Eugene's view, the legislature can define anything as a private right or a harm or a threat to public peace. (Even if the court can first declare the mass or seder protected under Eugene's common law religious freedom approach, his position, as I understand it, is that if the county board comes back and explicitly declares the religious conduct illegal, the courts then may not question that.) The central worship service of Catholicism and other faiths can be barred or drastically altered by the coercive force of law even though the activity goes on regularly elsewhere across the nation without significant real-world harm. Perhaps Eugene would respond, This seems a perfectly attractive implication of religious liberty to me. But I doubt he'd say that, and if he did, I think he would be out of line with most common intuitions about the scope of religious freedom. Or he might say, Yes, this is an unattractive result -- it would be great to protect the mass or other serving of small
RE: Free Exercise, Free Speech, and harm to others
I agree that it was only one of the problems -- but I think it was an important one. I've argued that elsewhere extensively, and don't want to rehash it here. But consider another unhypothetical scenario. In Washington v. Glucksberg, the Court concluded that bans on assisted suicide didn't have to be judged under strict scrutiny. In doing so, the Court managed to avoid having to decide the moral question of whether there's a compelling interest in prolonging people's lives when they don't want them prolonged. It also managed to avoid having to decide the empirical question of whether allowing such assisted suicide would end up letting relatives or doctors pressure patients to choose assisted suicide, even when the patients would rather not have chosen that (much as allowing dueling might pressure people into dueling even if they'd have preferred not to do so) Now let's say that a patient claims a Free Exercise Clause right to have assistance in his suicide (because he believes that God is calling him home), or a patient's spouse claims a Free Exercise Clause right to be the Good Samaritan who helps the patient out of his misery. See Sanderson v. People, 12 P.3d 851 (Colo.App.2000); see also, e.g., Winthrop Drake Thies, Shall the Dying Be Denied Their Religious Freedom?, Newark Star-Ledger, Feb. 6, 1997, at 26; Brief of 36 Religious Organizations, Leaders, and Scholars as Amici Curiae in Support of Respondents, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858), and Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110) (making this argument). Under the Sherbert/Yoder regime, the Court would be right back in the strict scrutiny inquiry that Glucksberg avoided: The Court would have to make those moral and empirical judgments that I described. Tom, do you think it would be good for these judgments to be made as a matter of constitutional law by the judiciary? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C. Sent: Tuesday, March 15, 2005 4:14 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I'd say that the problem of deciding as a constitutional matter which harms to others are real harms was only one problem of the Lochner cases. At least two other problems were present there that are not present for free exercise exemption cases: (1) The asserted constitutional right in the Lochner cases rested on a dubious or at least uncertain ground, substantive due process, versus an explicit textual provision like free exercise, which has an extensive background and history tied to the decision to enact it. That background and history includes the use of terms like private rights and public peace, which it seems doubtful Madison and others would have meant to collapse into whatever any legislature or political body says is a harm. (2) Challenges under Lochner logically aimed to strike down the entire law as an interference with economic liberty in all its applications, whereas a free exercise challenge to a generally applicable law seeks only an exemption for the claimant and others similarly situated. It is indeed more difficult and complicated, and more a sortie into basic policy questions, to say that a law as whole does not prevent real harms than to say that an exemption for a particular claimant will not cause real harms. In the latter kind of analysis, judges can look at the facts and record adduced as to this litigant and others like him; they are engaged in large part in the fitting of particular facts into broader principles, which is what judges commonly do. Tom Berg From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tue 3/15/2005 4:32 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others . . . More broadly, I do ultimately support the Smith regime, which keeps the courts out of the business of deciding as a *constitutional* matter which harms to others are real harms and which aren't. As I argue in my Common-Law Model paper, that business was one of the problems of the Lochner era cases, where some of the decisions (see, e.g., Adair) were indeed based on a court's judgment that discrimination isn't a real harm that the legislature can try to avoid. At the same time, for reasons I explain there, I think the state RFRA model, where courts are given the power to carve out exemptions in the first instance, subject to legislative override, is better than either pure Smith or pure Sherbert. In any event, I realize the Smith regime reaches some unappealing results -- but I don't think that as to sacramental wines, Sherbert or Yoder would likely reach any different results. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C. Sent: Tuesday, March 15, 2005 1:34 PM To: Law Religion issues for Law Academics Subject: RE
RE: Free Exercise, Free Speech, and harm to others
Title: Message Well, I'd love to hear what others would think. Peyote has been the outlier in the drug cases -- as I understand it, as to marijuana and other drugs the overwhelming judgment of the lower courts has been that denying an exemption would pass strict scrutiny. (A few courts in marijuana cases, if I recall, have taken the opposite view, but that's a minority view.) Part of the dissenters' arguments in Smith had to do with peyote's relative lack of broad public appeal; that wouldn't apply to alcohol. As to the merits of the alcohol exemption claim, I'm not at all convinced by the hypothetical Catholic argument before. There may in fact be no criminological studies showing that the sacramental use exception has increased deaths or injuries -- but how could we have an effectivestudy on such a question? Criminologists will tell you that measuring criminal behavior is notoriously difficult. Criminal law judgments such as this one therefore necessarily operate -- whether the subject is drugs, guns, or anything else -- based on intuitive judgments about human nature, not about studies. Let me offer an analogy. Imagine we had no Second Amendment or state right to bear arms provisions, just to set aside that possible issue; and imagine that a state law banned the carrying of guns. A Neo-Sikh, who believes that the requirement that Sikhs carry a kirpan should be updated to reflect modern weaponry, and who thinks that symbolic weaponry isn't enough,sincerely believes that he has a duty to carry a gun in order to help protect those in peril from criminal attack. Or someone believes God has given him the obligation to effectively protect his wife and children were on the street; imagine this is sincere. Should courts really have to figure out whether gun control is necessary to fight crime, and sort through all the contradictory and often inadequate studies? Also, I believe that now 36 of the 50 states let any law-abiding adult get a license to carry concealed -- does it follow that the other 14 states would have to give religious objectors similiar licenses, at least so long as a judge concludes that Lott's research that suggests that such laws slightly decrease crime is persuasive, and contrary research that suggests that such laws slightly increase violent crime is unpersuasive? Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.Sent: Tuesday, March 15, 2005 3:57 PMTo: Law Religion issues for Law AcademicsSubject: RE: Free Exercise, Free Speech, and harm to others Eugene, you took the route I didn't expect, which is to say that the suppression of the mass by a no-alcohol law would not be constitutionally troubling under our most common intuitions about religious freedom. I strongly suspect that most courts following the Sherbert/Yoder approach would disagree and would mandate an exemption. Indeed, I think that courts following Sherbert/Yoder would be more likely to mandate alcohol exemptions than peyote exemptions -- which themselves have been quite common under the Sherbert/Yoder approach (see, e.g., three USSCT dissenting justices in Smith finding no compelling interest,versus O'Connor concurringalone finding a compelling interest; see alsoSmith v. Employment Division,763 P.2d 146 (Or. 1988);Whitehorn v. State, 561 P.2d 539 (Okla. Crim. App. 1977); State v. Whittingham,504 P.2d 950 (Ariz. App. 1973); People v. Woody, 394 P.2d 813 (Cal. 1964); Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984)). It is true that alcohol causes more deaths and injuries than peyote, but alcohol is also far more widespread and permitted in many jurisdictions, and for most people small amounts of wine are harmless (or even of some medicinal value). Moreover, and importantly, some of the peyote-exemption cases noted that there were statutory exemptions for sacramental peyote in other jurisdictions, and that this undermined the assertion of a compelling interest under Sherbert/Yoder;indeed, exemptions or an absence of regulation have regularly been cited in free exercise cases generally as evidence that a state's interest is not compelling. This argument would be many, manyorders of magnitude stronger in the case of an alcohol ban in a dry county (and that was my hypothetical, not National Prohibition). A dry county would be almost alone among thousands of governmental units inprohibiting all public serving of alcohol including in sacramental settings. The Catholic church would convincingly say, "Look at the hundreds or thousands of jurisdictions where sacramental wine is permittedeither by exemption or because there is no ban in the first place; and there's no evidence that the sacramental usehas increased deaths or injuries in any significant amount. In that light, how can you, dry county,
RE: Free Exercise, Free Speech, and harm to others
I know I'm falling behind in this thread, but let me do my best to catch up. I think these are better examples than your first group, Eugene. I could probably distinguish some of them -- but let me see if I can jump over the trees and look at the forest instead. I think there are at least two arguments that explain why we might protect free speech that harms others, but not the exercise of religion when it harms others. I think you have mentioned both of them in this thread. First, the instrumental goals and functions of free speech may be so important to the effective functioning of democratic self government and other paramount public interests related to the reasons why we protect free speech that they justify protecting speech that causes private harms. Second, the kind of harm that speech causes is often different in nature than the kind of harm that the exercise of religion may cause because the latter is so much more conduct intensive than the former. When expressive activities are very conduct intensive and the conduct aspect of the activity causes harm to third parties, we often do not protect the activity as free speech -- and therefore, we should not protect the conduct intensive exercise of religion when it causes similar harms. I don't think these are bad arguments, as far as they go. What I don't think they do is to explain why we should never protect the free exercise of religion when it causes harm to third parties. I think the key difference between our positions may be this: I think we determine the scope of what the free speech clause protects in terms of two constitutional concerns. One concern is that we want to protect speech sufficiently to avoid undermining the reasons why we protect freedom of speech. For example, we protect speech enough to maintain the effective functioning of democratic self government. The second concern is that we do not protect speech so much that doing so causes unacceptable harm to third parties or the public good. The scope of the right is worked out by taking both of these variables into account. Thus, speech that undermines the war effort may be quite costly to society, but we lose too much of the value of free speech if we allow government to suppress speech that is critical of its war policies. Basically, I think we determine the scope of most rights this way -- by looking at these two concerns. When we define the scope of what the free exercise clause protects solely in terms of the harm caused by the exercise of religion, we are leaving out an essential part of the constitution equation. We are not asking whether defining the right in this way undermines the reasons why we protect the exercise of religion. I recognize that identifying the purpose of protecting the exercise of religion is more open and controversial a question than is explaining why we protect freedom of speech. But that does not mean that the question can be avoided. It seems to me that one core purpose of the free exercise clause is that government should act in a way that recognizes how serious and important religious beliefs and practices are to religious people. I think the idea of harm to others is so indeterminate and so malleable that a principle limiting the protection of free exercise rights to those practices that cause no harm to anyone and impose no cost on the public undermines the goal of government treating an individual's religious identity as something that deserves respect. Indeed, I think any purpose served by protecting the exercise of religion as a liberty right (as opposed to an equality right) is undermined by the principle that holds that the exercise of religion is unprotected whenever it causes harm. This analysis leaves a lot of issues open to debate and discussion. It says nothing about the standard of review to be applied in free exercise cases. It says nothing about what kind of harms justify abridging free exercise rights. As I have written elsewhere, I think a meaningful free exercise jurisprudence should be more complex and nuanced than any unitary formula or standard of review -- something more akin to free speech or equal protection doctrine. But a principle that simply rejects any and all protection of religious exercise that burdens anyone seems inconsistent with the idea that the exercise of religion is a right worthy of protection. It suggests (at least to me) that we don't ask whether limiting the scope of right in this way undermines the reasons why we protect religious liberty -- because we do not think there are any reasons to protect religious liberty. I respectfully disagree. Alan Brownstein UC Davis (1) I assume Alan would conclude that there's no free exercise clause right to block even the entrance to a hardware store. (Imagine that someone believes the store sells some environmentally unsound or otherwise immoral product, and feels a religious motivation
Re: Free Exercise, Free Speech, and harm to others
Eugene, Is the distinction between your hypothetical pairings one of free speech versus free exercise or one of words versus conduct? (Flynt writes, Glynt yells; the NAACP publishes, Operation Rescue blocks; Schenck writes/publishes, Penck blocks). If Glynt, Operation Rescue or Penck were to write/publish would there be a difference in the analysis? Assume that the writing was based on, and reflected, sincerely held religious beliefs. Does free speech subsume free exercise if the exercise is that of writing/speaking/publishing? Does free exercise not include free speech with respect to religious beliefs? Are the two concomitant with respect to religious expression? I'm not convinced that the overlap is symmetrical or concomitant, and I wonder if concluding that the overlap IS concomitant effectively makes one of the freedoms subservient to the other. Nor do I think that a blanket conclusion requiring a higher level of proof of harm for free exercise than for free speech is necessary or wise. I also think that there is a freedom of religious expression that draws on both freedoms and that may need to be tested differently than either free speech or free exercise. Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 12:59:04 PM Brad's and Marc's posts raise an excellent question: If free speech means that people have the constitutional right to impose burdens on others, why shouldn't free exercise operate the same way? The same can be said of other rights, incidentally: For instance, the Compulsory Process Clause right gives criminal defendants very substantial powers to constrain others' liberty. (I set aside here the permissible scope of legislative accommodations, and focusing on what's constitutionally compelled.) I think that free speech and free exercise *are* different this way, and let me briefly try to explain why. I'll begin with some hypotheticals that I think help illustrate this, and then offer a broader theoretical explanation. (The following is borrowed from my A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999), http://www1.law.ucla.edu/~volokh/relfree.htm.) Here are the hypos, which consist of pairs of claims, one free speech and one religious freedom: 1. (A) Larry Flynt inflicts emotional distress on Jerry Falwell by publishing his vitriolic ad parody in Hustler Magazine; when sued under the IIED tort, Flynt raises his free speech rights as a defense. (B) Mary Glynt inflicts emotional distress on Jerry Falwell by standing outside his window at night with a bullhorn; when sued under the IIED tort, Glynt raises her free exercise rights as a defense -- she claims (assume that the claim is sincere) that she feels a religious obligation to remonstrate this way with heretics (and she considers Falwell to be one). 2. (A) The NAACP interferes with Claiborne Hardware's business relations by publicizing the names of its visitors, and urging people to boycott Claiborne; when sued under the interference with business advantage tort, it raises its free speech rights as a defense. (B) Operation Rescue interferes with an abortion clinic's business relations by blocking the entrance to the clinic; when sued under the same tort, it raises its (or its members') free exercise rights as a defense -- it claims (assume that the claim is sincere) that its members feel a religious obligation to protect fetuses this way. 3. (A) A modern-day Schenck tries to interfere with the war effort by publishing books, leaflets, and Web sites urging people to vandalize munitions manufacturers; when prosecuted for counseling illegal conduct, he raises his free speech rights as a defense. (B) His religiously pacifist cousin Penck tries to interfere with the war effort by blocking the entrance to a military contractor's building; when prosecuted for trepassing, he claims (assume that the claim is sincere) that he feels a religious obligation to fight the war this way. Under standard free speech doctrine, the free speech claimants in each of these cases would have a good Free Speech Clause defense, *even though* their speech causes harm to others. But do people on this list think that the religious freedom claimants in each of these cases should likewise prevail with their Free Exercise Clause defenses? The government interests -- and the private interests that the government is protecting -- in all the cases, it seems to me, are quite similar. The speech and the religious conduct jeopardizes those interests (perhaps not identically, but to similar degrees). But while the government is barred from restricting the speech when the content of the speech causes harm to others, the government may (and I think should) restrict the religious conduct when that causes harm to others. If I'm right, then this suggests that we can't just casually equate free speech and free exercise claims (perhaps, for
RE: Free Exercise, Free Speech, and harm to others
Religious speech, it seems to me, should be no more and no less protected by the Free Speech Clause than other speech. Thus, the interesting questions (including the ones we've been discussing on related threads) arise when there's a claim of religious accommodation for conduct, or for speech that causes harm through its noncommunicative components. So my pairs of examples do compare the Free Speech Clause treatment of speech (speech that causes harm through what it communicates) against the Free Exercise Clause treatment of conduct (or speech that causes harm through its noncommunicative impact). But that's the comparison, I take it, that Brad and Marc were urging; if they had simply been demanding protection for religious speech, they would be getting it, see Widmar, Lamb's Chapel, etc. Jim Maule writes: Is the distinction between your hypothetical pairings one of free speech versus free exercise or one of words versus conduct? (Flynt writes, Glynt yells; the NAACP publishes, Operation Rescue blocks; Schenck writes/publishes, Penck blocks). If Glynt, Operation Rescue or Penck were to write/publish would there be a difference in the analysis? Assume that the writing was based on, and reflected, sincerely held religious beliefs. Does free speech subsume free exercise if the exercise is that of writing/speaking/publishing? Does free exercise not include free speech with respect to religious beliefs? Are the two concomitant with respect to religious expression? I'm not convinced that the overlap is symmetrical or concomitant, and I wonder if concluding that the overlap IS concomitant effectively makes one of the freedoms subservient to the other. Nor do I think that a blanket conclusion requiring a higher level of proof of harm for free exercise than for free speech is necessary or wise. I also think that there is a freedom of religious expression that draws on both freedoms and that may need to be tested differently than either free speech or free exercise. Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 12:59:04 PM Brad's and Marc's posts raise an excellent question: If free speech means that people have the constitutional right to impose burdens on others, why shouldn't free exercise operate the same way? The same can be said of other rights, incidentally: For instance, the Compulsory Process Clause right gives criminal defendants very substantial powers to constrain others' liberty. (I set aside here the permissible scope of legislative accommodations, and focusing on what's constitutionally compelled.) I think that free speech and free exercise *are* different this way, and let me briefly try to explain why. I'll begin with some hypotheticals that I think help illustrate this, and then offer a broader theoretical explanation. (The following is borrowed from my A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999), http://www1.law.ucla.edu/~volokh/relfree.htm.) Here are the hypos, which consist of pairs of claims, one free speech and one religious freedom: 1. (A) Larry Flynt inflicts emotional distress on Jerry Falwell by publishing his vitriolic ad parody in Hustler Magazine; when sued under the IIED tort, Flynt raises his free speech rights as a defense. (B) Mary Glynt inflicts emotional distress on Jerry Falwell by standing outside his window at night with a bullhorn; when sued under the IIED tort, Glynt raises her free exercise rights as a defense -- she claims (assume that the claim is sincere) that she feels a religious obligation to remonstrate this way with heretics (and she considers Falwell to be one). 2. (A) The NAACP interferes with Claiborne Hardware's business relations by publicizing the names of its visitors, and urging people to boycott Claiborne; when sued under the interference with business advantage tort, it raises its free speech rights as a defense. (B) Operation Rescue interferes with an abortion clinic's business relations by blocking the entrance to the clinic; when sued under the same tort, it raises its (or its members') free exercise rights as a defense -- it claims (assume that the claim is sincere) that its members feel a religious obligation to protect fetuses this way. 3. (A) A modern-day Schenck tries to interfere with the war effort by publishing books, leaflets, and Web sites urging people to vandalize munitions manufacturers; when prosecuted for counseling illegal conduct, he raises his free speech rights as a defense. (B) His religiously pacifist cousin Penck tries to interfere with the war effort by blocking the entrance to a military contractor's building; when prosecuted for trepassing, he claims (assume that the claim is sincere) that he feels a religious obligation to fight the war this way.
Re: Free Exercise, Free Speech, and harm to others
I tend to agree with Eugene that free speech and free exercise rights do not parallel each other -- so that it does not necessarily follow that because freedom of speech is protected even when the speech causes harm to third parties, free exercise rights must receive similar protection. But I have several problems with other parts of Eugene's analysis. 1. As I tried to argue in an earlier post, harm to others can be an ambiguous term. If it includes financial costs and emotional distress, most rights are protected at least to some extent, even if doing so imposes such consequences on third parties or the general public. Maybe free exercise rights are different than other rights in this regard -- but that difference needs to be explained and justified. And with due respect, Eugene, I don't think you have done that. I understand that my G-d may not a deity to you. But it is also true for most self realizing rights or autonomy or dignitary rights that what is important and meaningful to me may be meaningless and irrelevant to you. This is even true for the non-instrumental value of freedom of speech. Maybe X needs to express racially derogatory comments to individuals of a different race to be self -fulfilled. But I don't. And I see virtually no instrumental value in permitting targeted racist invective. But I accept that some such expression is constitutionally protected, notwithstanding the emotional harm that it causes. Why is that different than protecting free exercise rights that harm others of a faith committed to tenets that I do not accept. 2. Also, Eugene, for the purpose of your argument, does harm to the general community have the same analytic consequence as harm to specific third parties. The burden of granting some free exercise exemptions is essentially financial -- it imposes costs on the public fisc. For example, exempting a church from land use regulations limiting development in a commercial zone has financial consequences for a community -- since the church does not pay taxes and does not engage in activities that provide sales tax revenue to the city. But the costs of protecting freedom of speech can also be quite high. For example, large political demonstrations do not police themselves. Is their a reason why we should accept the financial costs of exercising free speech rights, but not those associated with exercising free exercise rights? (I recognize that political rallies have instrumental value, but certainly, one can argue that society benefits in a variety of intangible and tangible ways from the houses of worship in our communities) Again, I am not suggesting that all rights are analogous to each other with regard to whether they include the freedom to inflict harm on others -- or with regard to other attributes. But if free exercise rights are to be defined more narrowly than many if not most other rights, I think the proponents of doing so need to persuasively explain why this is so. Alan Brownstein UC Davis Eugene writes, But we ought not read the Free Exercise Clause as generally licensing religious objectors to inflict harm on others (or even to do so subject to a possible strict scrutiny trump). As I argue, my relationship with my God may be important to me, but it can't by itself be a constitutionally sufficient justification for my harming you, even slightly (for instance, by intentionally inflicting emotional distress on you in secular ways, blocking access to your property, or slightly vandalizing your commercial building). From your perspective and the legal system's perspective (even if not from my own), my God is my God, not yours, and the Constitution doesn't give those acting in His name sovereignty over your legally recognized rights and interests. The trouble with such a broad religious freedom claim to do whatever you please so long as you don't harm others is not that private contract, property, and tort law rights, or private interests in being free from criminal vandalism (consider the rights and interests implicated in the three examples I note above) somehow outweigh religious freedom rights: How could we justify such a conclusion? Even if one somehow determines that such private rights are as important as religious freedom rights, I see no way to explain why they are more important, which would be required to show such an outweighing. Rather, the reason why a general exemption regime can't override these rights must be that any religious freedom right that's solely grounded in the religious motivation for one's actions simply can't extend to actions that impair others' rights or impose improper externalities on others. Whether your countervailing right is a right to life, to bodily integrity, or to something perhaps somewhat less important, such as property or freedom from emotional distress, if it is indeed a right then the religiosity of my motivation can't justify violating it.
RE: Free Exercise, Free Speech, and harm to others
While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply because of the anticipated degree of negative impact upon persons other than the one exercising the right. Just to look at the first pair of hypotheticals: While Jerry Falwell is postulated to have experienced emotional distress as a result of both incidents, I submit that we intuitively would recognize that the immediacy and intrusiveness of the harm differs greatly when we compare reading a scurrilous reference to one's self in a periodical with experiencing an almost physical trespass accompanied by the use of loud sounds that cannot easily be escaped and, perhaps most importantly, that occurs at one's place of sanctuary, the home. Thus, while I agree that the free speech claim in that pair of hypotheticals is stronger than the free exercise claim, I don't see the two cases as truly comparable in terms of the degree and perhaps the nature of the harm, even if both forms of harm are generally categorized as emotional distress. Thus, for a set of hypotheticals comparing the strength of free speech and free exercise claims to be truly comparable, the nature or at least the degree of harm must also be comparable. While not neatly involving parallel factual settings or messages, consider these two scenarios: First, we again have the offensive parody of Jerry Falwell in Larry Flynt's Hustler magazine, in which Flynt invokes freedom of speech as a defense against a claim for emotional distress. Second, we have a homosexual couple that is rejected as tenants by a homeowner of traditional religious values for the spare room in her house, in which the homeowner invokes free exercise as a defense as a claim for discrimination by the homosexual couple under a municipal gay rights ordinance. Assume for the sake of argument that other rental opportunities for homosexual couples are available in that community (a reasonable assumption, as a municipality in which political support exists for enactment of a gay rights law involving housing is unlikely to one in which such discrimination is omnipresent across the community, but even if you find the assumption more debatable, I ask you to accept it for this hypothetical). Under that hypothetical, then, the claim of the homosexual couple, although framed as housing discrimination and seeking the remedy of an injunction, in practical terms is about the emotional distress of having experienced discrimination by being rejected as a tenant on the basis of sexual orientation. Isn't that experience of emotional distress comparable to that of Jerry Falwell who was targeted for sexualized slurs based upon his religious and political views? In both instances, the complaining party understandably and sincerely has suffered an emotional injury (as I'll assume for this hypothetical, as I doubt that Jerry Falwell truly was that distressed). But both emotional injuries are unaccompanied by any physical component and both involve primarily upset feelings. By that analysis, shouldn't the free exercise claim of the homeowner be regarded as equally viable as the free speech claim of Larry Flynt? (And if you don't like my hypotheticals, feel free to formulate your own, in which the comparability of harm is the pivot point rather than comparable factual settings.) Greg Sisk Gregory Sisk Professor of Law University of St. Thomas School of Law (Minneapolis) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 11:59 AM To: Law Religion issues for Law Academics Subject: Free Exercise, Free Speech, and harm to others Brad's and Marc's posts raise an excellent question: If free speech means that people have the constitutional right to impose burdens on others, why shouldn't free exercise operate the same way? The same can be said of other rights, incidentally: For instance, the Compulsory Process Clause right gives criminal defendants very substantial powers to constrain others' liberty. (I set aside here the permissible scope of legislative accommodations, and focusing on what's constitutionally compelled.) I think that free speech and free exercise *are* different this way, and let me briefly try to
RE: Free Exercise, Free Speech, and harm to others
I appreciate Greg's thoughtful analysis, but I think that ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's rights doesn't resolve the problems. I would feel *much* more distressed by knowing that millions (?) of people are reading about how I supposedly had sex with my mother in an outhouse (even if they know it's a gag) than by a few nights of loud noise outside my house. Likewise, I suspect that the more-or-less three-year-long boycott in Claiborne Hardware affected local businesses more than the occasional blockage would affect the business of an abortion clinic. It's true that this may be so because the boycott went on for a long time, while the blockage in my hypothetical wouldn't. But under free speech law, even speech urging a long boycott can't be punished -- and even one instance of entrance blockage, which would cause vastly less damage than the boycott, would be punishable, whether or not it's religiously based. So people are constitutionally entitled to inflict considerably greater harms through the communicative impact of their speech than through the religiously motivated conduct. Or am I mistaken here? As to the housing discrimination scenario, I just think Greg's comparison cases are actually not terribly similar. The gay couple's claim isn't necessarily that they're deeply emotionally distressed -- rather, it is that they have a legal right to equal treatment, regardless of whether the unequal treatment is terribly distressing. Maybe this right flows from a general sense that the unequal treatment is usually distressing, but it doesn't, I think, require a case-by-case analysis here. I have a right to be free even from minor trespasses on my land, or minor batteries (consider someone popping me in the face with a cream pie, probably not tremendously insulting as batteries go). People aren't free to engage in this conduct even if they feel a religious obligation to do so (say, for instance, that they want to engage in a pilgrimage to what they think is a newly discovered holy site on my land, or that they feel they need to pie me as a statement about my blasphemy). Likewise, I take it that many supporters of antidiscrimination law believe that a right to be free from certain kinds of discrimination in certain transactions is a comparable private entitlement. I don't see how a court can, as a constitutional matter, conclude that this form of infringement of one's rights just isn't that emotionally distressing, while other forms are. Eugene Greg Sisk writes: While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply because of the anticipated degree of negative impact upon persons other than the one exercising the right. Just to look at the first pair of hypotheticals: While Jerry Falwell is postulated to have experienced emotional distress as a result of both incidents, I submit that we intuitively would recognize that the immediacy and intrusiveness of the harm differs greatly when we compare reading a scurrilous reference to one's self in a periodical with experiencing an almost physical trespass accompanied by the use of loud sounds that cannot easily be escaped and, perhaps most importantly, that occurs at one's place of sanctuary, the home. Thus, while I agree that the free speech claim in that pair of hypotheticals is stronger than the free exercise claim, I don't see the two cases as truly comparable in terms of the degree and perhaps the nature of the harm, even if both forms of harm are generally categorized as emotional distress. Thus, for a set of hypotheticals comparing the strength of free speech and free exercise claims to be truly comparable, the nature or at least the degree of harm must also be comparable. While not neatly involving parallel factual settings or messages, consider these two scenarios: First, we again have the offensive parody of Jerry Falwell in Larry Flynt's Hustler magazine, in which Flynt invokes freedom of speech as a defense against a claim for emotional distress. Second, we have a homosexual couple that is rejected as tenants by a homeowner of traditional religious values for the spare room in her house, in which the homeowner invokes free exercise as a defense as a claim for discrimination by
RE: Free Exercise, Free Speech, and harm to others
I was glad to see Alan's response, and I'll try to respond myself below. But Alan, what do you think of the three examples I give? Alan Brownstein writes: 1. As I tried to argue in an earlier post, harm to others can be an ambiguous term. If it includes financial costs and emotional distress, most rights are protected at least to some extent, even if doing so imposes such consequences on third parties or the general public. Maybe free exercise rights are different than other rights in this regard -- but that difference needs to be explained and justified. And with due respect, Eugene, I don't think you have done that. I understand that my G-d may not a deity to you. But it is also true for most self realizing rights or autonomy or dignitary rights that what is important and meaningful to me may be meaningless and irrelevant to you. This is even true for the non-instrumental value of freedom of speech. Maybe X needs to express racially derogatory comments to individuals of a different race to be self -fulfilled. But I don't. And I see virtually no instrumental value in permitting targeted racist invective. But I accept that some such expression is constitutionally protected, notwithstanding the emotional harm that it causes. Why is that different than protecting free exercise rights that harm others of a faith committed to tenets that I do not accept. I think this is a great explanation for why pure self-expression isn't an adequate defense for free speech claims, and it's one reason that the Court has accepted some exceptions from free speech protection even when the speaker is deriving self-expression benefits from the speech (e.g., lies, threats, and -- most relevant for Alan's example -- fighting words). But the chief reason the Court has given for protecting free speech is the social benefits of speech, and the social harms of giving the government broad power to restrict speech. So I do think there's substantial social benefit in protecting racist speech broadly (though not necessarily fighting words, whether racist or not). 2. Also, Eugene, for the purpose of your argument, does harm to the general community have the same analytic consequence as harm to specific third parties. The burden of granting some free exercise exemptions is essentially financial -- it imposes costs on the public fisc. For example, exempting a church from land use regulations limiting development in a commercial zone has financial consequences for a community -- since the church does not pay taxes and does not engage in activities that provide sales tax revenue to the city. But the costs of protecting freedom of speech can also be quite high. For example, large political demonstrations do not police themselves. Is their a reason why we should accept the financial costs of exercising free speech rights, but not those associated with exercising free exercise rights? (I recognize that political rallies have instrumental value, but certainly, one can argue that society benefits in a variety of intangible and tangible ways from the houses of worship in our communities) I think that harm to the general community at least often does qualify as harm -- and that includes financial harm. For instance, criticism of the draft (short of Brandenburg incitement) is protected, even when that is likely to lead some people to disobey the draft law; religious refusal to obey the draft is not protected, see Gillette. Criticism of the tax system (again, short of incitement) is protected, even when that is likely to lead to less tax revenue; religious refusal to pay taxes is not, see Bob Jones. Alan, do you think these results are wrong? ___ 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.
Re: Free Exercise, Free Speech, and harm to others
Eugene: Are you grounding your analysis here of speech and religion in the text of the First Amendment? It seems to my untutored eye that it is precisely exercise of religion that is protected, no? Is there any reason to think that exercise of religion might not be harmful? I guess my question is whether you see the harm done by religion as unprotected because of some constitutional reason (such as, it amounts to establishment)? Why would the religious motivation be treated any differently than an anti-religious motivation, or a commitment to Millian liberalism, or the will to power? If the protection for speech's harm, is that speech is good for democracy, cannot one make the same argument about much, if not all, religious exercise? (I'm not defending the principle that there is a right to harm, only looking for consistency.) Thanks, Richard Dougherty Volokh, Eugene wrote (in part): The Free Speech Clause and other rights *are* rights to inflict certain kinds of harm on others in certain ways (for instance, through the communicative impact of speech); we think that for various reasons, the government ought not be allowed to interfere with this harm, perhaps because speech is so valuable to democratic self-government, or because we suspect the government will abuse its regulatory powers. Likewise, as I argue at http://www1.law.ucla.edu/~volokh/relfree.htm#Several%20Specific%20Prohib itions%20on%20Government, in a few contexts (for instance, discrimination in hiring clergy, or religious frauds), the Free Exercise Clause also allows religious people or institutions to inflict what the law might otherwise treat as harm to others. But we ought not read the Free Exercise Clause as generally licensing religious objectors to inflict harm on others (or even to do so subject to a possible strict scrutiny trump). As I argue, my relationship with my God may be important to me, but it can't by itself be a constitutionally sufficient justification for my harming you, even slightly (for instance, by intentionally inflicting emotional distress on you in secular ways, blocking access to your property, or slightly vandalizing your commercial building). From your perspective and the legal system's perspective (even if not from my own), my God is my God, not yours, and the Constitution doesn't give those acting in His name sovereignty over your legally recognized rights and interests. ___ 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.
RE: Free Exercise, Free Speech, and harm to others
Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a sermon in his progressive church decrying the theological positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a modern-day Pharisee. The sermon concludes that it is behavior and proselytization such as that in which Falwell engages that continues to contribute to the agony of Jesus on the Cross. The sermon is broadcast on tv, radio, and/or the web (to get roughly the same dissemination as Flynt managed with Hustler). Falwell is understandably upset and emotionally distressed (assume that it's just as distressing to him as were the comments about his mother). Must Falwell meet a higher burden because the offending speech is a religious sermon rather than a parody in a secular publication? Should the courts get involved in the modern equivalent of the 17th century pamphlet wars if one or both of the parties alleges some sort of emotional distress or other damage? Or should the courts do as suggested the jury in Thomas Maule's trial: This is a matter for a jury of divines.? I think it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech). Otherwise, because religious expression also is a form of free exercise, a back door is open to curtail the free exercise rights of the speaker. Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 4:36:01 PM While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply because of the anticipated degree of negative impact upon persons other than the one exercising the right. Just to look at the first pair of hypotheticals: While Jerry Falwell is postulated to have experienced emotional distress as a result of both incidents, I submit that we intuitively would recognize that the immediacy and intrusiveness of the harm differs greatly when we compare reading a scurrilous reference to one's self in a periodical with experiencing an almost physical trespass accompanied by the use of loud sounds that cannot easily be escaped and, perhaps most importantly, that occurs at one's place of sanctuary, the home. Thus, while I agree that the free speech claim in that pair of hypotheticals is stronger than the free exercise claim, I don't see the two cases as truly comparable in terms of the degree and perhaps the nature of the harm, even if both forms of harm are generally categorized as emotional distress. Thus, for a set of hypotheticals comparing the strength of free speech and free exercise claims to be truly comparable, the nature or at least the degree of harm must also be comparable. While not neatly involving parallel factual settings or messages, consider these two scenarios: First, we again have the offensive parody of Jerry Falwell in Larry Flynt's Hustler magazine, in which Flynt invokes freedom of speech as a defense against a claim for emotional distress. Second, we have a homosexual couple that is rejected as tenants by a homeowner of traditional religious values for the spare room in her house, in which the homeowner invokes free exercise as a defense as a claim for discrimination by the homosexual couple under a municipal gay rights ordinance. Assume for the sake of argument that other rental opportunities for homosexual couples are available in that community (a reasonable assumption, as a municipality in which political support exists for enactment of a gay rights law involving housing is unlikely to one in which such discrimination is omnipresent across the community, but even if you find the assumption more debatable, I ask you to accept it for this hypothetical). Under that hypothetical, then, the claim of the homosexual couple, although framed as housing discrimination and seeking the remedy of an injunction, in practical terms is about the emotional distress of having experienced discrimination by being rejected as a tenant on the basis of sexual orientation. Isn't that experience of emotional distress comparable to that of Jerry Falwell who was targeted for sexualized slurs based upon his religious and political views? In both instances, the complaining party understandably and sincerely has suffered an emotional injury (as I'll assume for this hypothetical, as I doubt that
RE: Free Exercise, Free Speech, and harm to others
I'm not grounding it on the text, which gets us fairly little here. I'm generally persuaded by Justice Scalia's original meaning argument in City of Boerne v. Flores as to free exercise; as to the original meaning of free speech, I think that's basically unknown and likely unknowable. I should say, by the way, that my argument is *not* that religiously motivated conduct or speech should be treated worse than the nonreligiously motivated conduct or speech; I think the Free Exercise Clause bars such discrimination against religious motivation. I think Lukumi is right, and Locke v. Davey is wrong. Rather, my argument is that the Free Exercise Clause ought not be read as allowing people to do things that harm others simply because they feel a religious obligation to do those things. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Richard Dougherty Sent: Monday, March 14, 2005 2:35 PM To: Law Religion issues for Law Academics Subject: Re: Free Exercise, Free Speech, and harm to others Eugene: Are you grounding your analysis here of speech and religion in the text of the First Amendment? It seems to my untutored eye that it is precisely exercise of religion that is protected, no? Is there any reason to think that exercise of religion might not be harmful? I guess my question is whether you see the harm done by religion as unprotected because of some constitutional reason (such as, it amounts to establishment)? Why would the religious motivation be treated any differently than an anti-religious motivation, or a commitment to Millian liberalism, or the will to power? If the protection for speech's harm, is that speech is good for democracy, cannot one make the same argument about much, if not all, religious exercise? (I'm not defending the principle that there is a right to harm, only looking for consistency.) Thanks, Richard Dougherty Volokh, Eugene wrote (in part): The Free Speech Clause and other rights *are* rights to inflict certain kinds of harm on others in certain ways (for instance, through the communicative impact of speech); we think that for various reasons, the government ought not be allowed to interfere with this harm, perhaps because speech is so valuable to democratic self-government, or because we suspect the government will abuse its regulatory powers. Likewise, as I argue at http://www1.law.ucla.edu/ ~volokh/relfree.htm#Several%20Specific%20Proh ib itions%20on%20Government, in a few contexts (for instance, discrimination in hiring clergy, or religious frauds), the Free Exercise Clause also allows religious people or institutions to inflict what the law might otherwise treat as harm to others. But we ought not read the Free Exercise Clause as generally licensing religious objectors to inflict harm on others (or even to do so subject to a possible strict scrutiny trump). As I argue, my relationship with my God may be important to me, but it can't by itself be a constitutionally sufficient justification for my harming you, even slightly (for instance, by intentionally inflicting emotional distress on you in secular ways, blocking access to your property, or slightly vandalizing your commercial building). From your perspective and the legal system's perspective (even if not from my own), my God is my God, not yours, and the Constitution doesn't give those acting in His name sovereignty over your legally recognized rights and interests. ___ 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.
RE: Free Exercise, Free Speech, and harm to others
I'm not sure why it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech) -- why not severely limit the extent to which courts impose liability on emotional distress caused by speech, period? If Senator Llynt gives a speech decrying the political positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a generally bad person, it seems to me that he should be categorically immune from IIED liability even if his speech is purely nonreligious. If I'm right, then why is there any need for extra protection for religious speech? (I realize that there might be some situations where religious speech is immune from liability because it's incapable of secular proof; but generally the remedy there is to treat is the same as secular opinions that are incapable of proof, which are constitutionally protected,) Eugene Jim Maule writes: Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a sermon in his progressive church decrying the theological positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a modern-day Pharisee. The sermon concludes that it is behavior and proselytization such as that in which Falwell engages that continues to contribute to the agony of Jesus on the Cross. The sermon is broadcast on tv, radio, and/or the web (to get roughly the same dissemination as Flynt managed with Hustler). Falwell is understandably upset and emotionally distressed (assume that it's just as distressing to him as were the comments about his mother). Must Falwell meet a higher burden because the offending speech is a religious sermon rather than a parody in a secular publication? Should the courts get involved in the modern equivalent of the 17th century pamphlet wars if one or both of the parties alleges some sort of emotional distress or other damage? Or should the courts do as suggested the jury in Thomas Maule's trial: This is a matter for a jury of divines.? I think it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech). Otherwise, because religious expression also is a form of free exercise, a back door is open to curtail the free exercise rights of the speaker. Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 4:36:01 PM While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply because of the anticipated degree of negative impact upon persons other than the one exercising the right. Just to look at the first pair of hypotheticals: While Jerry Falwell is postulated to have experienced emotional distress as a result of both incidents, I submit that we intuitively would recognize that the immediacy and intrusiveness of the harm differs greatly when we compare reading a scurrilous reference to one's self in a periodical with experiencing an almost physical trespass accompanied by the use of loud sounds that cannot easily be escaped and, perhaps most importantly, that occurs at one's place of sanctuary, the home. Thus, while I agree that the free speech claim in that pair of hypotheticals is stronger than the free exercise claim, I don't see the two cases as truly comparable in terms of the degree and perhaps the nature of the harm, even if both forms of harm are generally categorized as emotional distress. Thus, for a set of hypotheticals comparing the strength of free speech and free exercise claims to be truly comparable, the nature or at least the degree of harm must also be comparable. While not neatly involving parallel factual settings or messages, consider these two scenarios: First, we again have the offensive parody of Jerry Falwell in Larry Flynt's Hustler magazine, in which Flynt invokes freedom of speech as a defense against a claim for emotional distress. Second, we have a homosexual couple that is rejected as tenants by a homeowner of traditional religious values for the spare room in her house, in which the homeowner invokes free exercise
Re: Free Exercise, Free Speech, and harm to others
On Monday, March 14, 2005, at 06:20 PM, Volokh, Eugene wrote: Rather, my argument is that the Free Exercise Clause ought not be read as allowing people to do things that harm others simply because they feel a religious obligation to do those things. So you would be against displays of the 10 commandments on free exercise grounds because of the of the psychic harm caused by them to others even though they are displayed as a result of a religious obligation? And you would ban Mormons and JWs from stopping at my door just like all other peddlars -- if I could show psychic harm? I guess I don't see where this leads us out of the wilderness any better than the current mish mash of principles, policies, and adjustments. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ Whenever you find yourself on the side of the majority, it is time to pause and reflect. Mark Twain ___ 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.
RE: Free Exercise, Free Speech, and harm to others
Compare You're going to get yours some day, and it could be within the next minute (shouted, eyes bulging, face red, fists clenched, during law conerence disputing whether a state should permit same-gender marriages) with You're going to burn in hell and swim with the demons some day, and it could be within the next minute because you never know when God's going to call you to judgment (shouted, eyes bulging, face red, fists clenched, during theological convention disputing whether a denomination should sanctify same-gender marriages). Recipient of speech in both instances sues, alleging emotional distress, fear of harm, and physical manifestations thereof. Recipient in both instances is a person who believes in the existence of hell and for whom an eternal placement therein is a horrifying thought. Recipient is also a person who dreads physical pain. If the first tirade is construed as fighting words, is the second necessarily treated the same way? I can see the same jury finding for the plaintiff in the first but not in the second. Why? Because the second involves speech the meaning of which is immersed in theological mystery (after all, who really knows for sure?) whereas the first involves speeach the meaning of which is immersed in a not so mysterious message of imminent physical threat. Note that the conduct and principal issue are identical, but the location, context, and participants differ (secular v. theological). Would you protect the speech in both cases? Not protect it in both cases? Or leave open the possibility of different outcomes? Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 6:23:40 PM I'm not sure why it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech) -- why not severely limit the extent to which courts impose liability on emotional distress caused by speech, period? If Senator Llynt gives a speech decrying the political positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a generally bad person, it seems to me that he should be categorically immune from IIED liability even if his speech is purely nonreligious. If I'm right, then why is there any need for extra protection for religious speech? (I realize that there might be some situations where religious speech is immune from liability because it's incapable of secular proof; but generally the remedy there is to treat is the same as secular opinions that are incapable of proof, which are constitutionally protected,) Eugene Jim Maule writes: Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a sermon in his progressive church decrying the theological positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a modern-day Pharisee. The sermon concludes that it is behavior and proselytization such as that in which Falwell engages that continues to contribute to the agony of Jesus on the Cross. The sermon is broadcast on tv, radio, and/or the web (to get roughly the same dissemination as Flynt managed with Hustler). Falwell is understandably upset and emotionally distressed (assume that it's just as distressing to him as were the comments about his mother). Must Falwell meet a higher burden because the offending speech is a religious sermon rather than a parody in a secular publication? Should the courts get involved in the modern equivalent of the 17th century pamphlet wars if one or both of the parties alleges some sort of emotional distress or other damage? Or should the courts do as suggested the jury in Thomas Maule's trial: This is a matter for a jury of divines.? I think it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech). Otherwise, because religious expression also is a form of free exercise, a back door is open to curtail the free exercise rights of the speaker. Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 4:36:01 PM While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply
RE: Free Exercise, Free Speech, and harm to others
I suspect that the distinction here isn't religious speech vs. secular speech and more (1) speech that sounds like warning of action by others who are unrelated to the speakers vs. (2) speech that sounds like warning of action by the speaker or his confederates. If a mother is really angry at a child and says You're going to get killed if you use drugs / run around with bad kids / do other dangerous stuff, we wouldn't treat that as a threat, because it's clearly a warning of what others might do. Conversely, God is going to call you to judgment soon might well be a threat if in context it's pretty clear that the person is conveying a message that he or his confederates might be the tools that God uses for this call. More broadly, there surely shouldn't be unqualified Free Exercise Clause protection for all threats that are religiously motivated, no? Eugene Jim Maule writes: Compare You're going to get yours some day, and it could be within the next minute (shouted, eyes bulging, face red, fists clenched, during law conerence disputing whether a state should permit same-gender marriages) with You're going to burn in hell and swim with the demons some day, and it could be within the next minute because you never know when God's going to call you to judgment (shouted, eyes bulging, face red, fists clenched, during theological convention disputing whether a denomination should sanctify same-gender marriages). Recipient of speech in both instances sues, alleging emotional distress, fear of harm, and physical manifestations thereof. Recipient in both instances is a person who believes in the existence of hell and for whom an eternal placement therein is a horrifying thought. Recipient is also a person who dreads physical pain. If the first tirade is construed as fighting words, is the second necessarily treated the same way? I can see the same jury finding for the plaintiff in the first but not in the second. Why? Because the second involves speech the meaning of which is immersed in theological mystery (after all, who really knows for sure?) whereas the first involves speeach the meaning of which is immersed in a not so mysterious message of imminent physical threat. Note that the conduct and principal issue are identical, but the location, context, and participants differ (secular v. theological). Would you protect the speech in both cases? Not protect it in both cases? Or leave open the possibility of different outcomes? Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 6:23:40 PM I'm not sure why it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech) -- why not severely limit the extent to which courts impose liability on emotional distress caused by speech, period? If Senator Llynt gives a speech decrying the political positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a generally bad person, it seems to me that he should be categorically immune from IIED liability even if his speech is purely nonreligious. If I'm right, then why is there any need for extra protection for religious speech? (I realize that there might be some situations where religious speech is immune from liability because it's incapable of secular proof; but generally the remedy there is to treat is the same as secular opinions that are incapable of proof, which are constitutionally protected,) Eugene Jim Maule writes: Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a sermon in his progressive church decrying the theological positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a modern-day Pharisee. The sermon concludes that it is behavior and proselytization such as that in which Falwell engages that continues to contribute to the agony of Jesus on the Cross. The sermon is broadcast on tv, radio, and/or the web (to get roughly the same dissemination as Flynt managed with Hustler). Falwell is understandably upset and emotionally distressed (assume that it's just as distressing to him as were the comments about his mother). Must Falwell meet a higher burden because the offending speech is a religious sermon rather than a parody in a secular publication? Should the courts get involved in the modern equivalent of the 17th century pamphlet wars if one or both of the parties alleges some sort of emotional distress or other damage? Or should the courts do as suggested the jury in Thomas Maule's trial: This is a matter for a jury of divines.? I think it makes a lot of sense to severely limit the extent to which courts measure the
RE: Free Exercise, Free Speech, and harm to others
Title: Message (1) I don't think anything I've said suggests that displays of the Ten Commandments by nongovernmental actors could be restrictable. They are just as protected by the freedom of speech as displays of any other sentiments. (Whether governmental actors may display the Ten Commandments is of course a matter of the Establishment Clause constraints on the government.) (2) I think that the Free Speech Clause protects Mormons' and Jehovah's Witnesses' ability to express their views precisely to the same extent that it protects Greenpeace's or the Libertarians' ability. Given Martin v. Struthers, both are protected if the householder hasn't put up a No Soliciting sign, and both are unprotected if the householder has put up a No Soliciting sign. See also Heffron v. ISKCON, holding, even during the Sherbert/Yoder era, that the Free Exercise Clause gave no more protection to religious speech than the Free Speech Clause gives to speech generally (and thus applying intermediate scrutiny rather than strict scrutiny to a Free Exercise Clause challenge to a content-neutral speech restriction). (3) A simple and plausible example: Operation Rescue decides, because of their religious beliefs,to picket an abortion provider's home. A pro-choice group decides, because of their nonreligious political beliefs,to picket the Operation Rescue leader's home. Could Operation Rescue really have broader speech rights than the pro-choice group -- with the Operation Rescue claim being subject to strict scrutiny, and the pro-choice group's being subject only to intermediate scrutiny (see Frisby v. Schultz) -- because Operation Rescue has a religious motivation for its speech? I would think the answer is no. Eugene Steve Jamar writes: -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Monday, March 14, 2005 3:52 PMTo: Law Religion issues for Law AcademicsSubject: Re: Free Exercise, Free Speech, and harm to others On Monday, March 14, 2005, at 06:20 PM, Volokh, Eugene wrote: Rather, my argument is that the Free Exercise Clause ought not be read as allowing people to do things that harm others simply because they feel a religious obligation to do those things. So you would be against displays of the 10 commandments on free exercise grounds because of the of the psychic harm caused by them to others even though they are displayed as a result of a religious obligation? And you would ban Mormons and JWs from stopping at my door just like all other peddlars -- if I could show psychic harm? I guess I don't see where this leads us out of the wilderness any better than the current mish mash of principles, policies, and adjustments. ___ 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.
RE: Free Exercise, Free Speech, and harm to others
I accept Eugene's observation that my comparison cases suffer from inadequate similarity comparison purposes. Perhaps at some point I'll try harder to develop less inferior paired hypotheticals to better express my point (perhaps that task will seem more appealing in a few weeks when I'm grading blue books). But I still am not convinced either (1) that a greater degree of burden from speech is acceptable because freedom of speech is a more robust constitutional right than free exercise, or (2) that the harms identified in the Flynt/Glynt hypotheticals are truly comparable and thus illustrate the point. Indeed, in the Glynt hypothetical, if Mary Glynt engaged in the same expression by bull-horn at the house window but offered a free speech rather than free exercise justification, the result would be the same -- she still would lose. Thus, it isn't the nature of the right that explains the differing results but something about the nature of the intrusion or the harm or the presence or absence of an attenuated link between them. Along these same lines, I'm persuaded that Eugene has a point that we permit a larger range of expression under freedom of speech than conduct under free exercise. But isn't that in part because speech is different from conduct (as Jim Maule suggested) rather than because the constitutional rights underlying one or the other are at different points in the hierarchy of constitutional values? While speech may and sometimes does cause harm, it almost always does so indirectly, as it depends for efficacy upon persuading someone else that the message is credible or that a response should be made. Thus, speech that is harmful depends upon a chain from the speaker through the medium to a recipient who in turn chooses to respond in a manner that induces harm to the recipient or someone else. Even speech that is intended to cause harm may prove ineffective due to breaks in the chain, especially if the recipient finds it uninteresting or unpersuasive. By contrast, conduct -- whether expressive in nature or not -- is immediate and if that conduct is harmful, the harm is rather directly realized. And related to that, I still think -- although my clumsy hypotheticals may not have illustrated it well -- that the harms involved may be different in nature or degree. While one subjectively and understandably might regard being slandered before millions of readers as a greater source of distress than being momentarily accosted at one's home by a loud protester, the law always has treated a physical invasion as different from an emotional response, even an induced emotional response. Indeed, some strains of law even today still preclude recovery in tort for emotional distress that is unaccompanied by physical injury. If there is anything to what I'm trying to say here, would it not follow that different treatment of the trespasser who asserts a free exercise defense from the magazine writer who claims freedom of speech turns not upon which actor invokes which constitutional protection but rather upon the nature of the impact caused by the underlying conduct/expression? Greg Sisk -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 3:57 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I appreciate Greg's thoughtful analysis, but I think that ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's rights doesn't resolve the problems. I would feel *much* more distressed by knowing that millions (?) of people are reading about how I supposedly had sex with my mother in an outhouse (even if they know it's a gag) than by a few nights of loud noise outside my house. Likewise, I suspect that the more-or-less three-year-long boycott in Claiborne Hardware affected local businesses more than the occasional blockage would affect the business of an abortion clinic. It's true that this may be so because the boycott went on for a long time, while the blockage in my hypothetical wouldn't. But under free speech law, even speech urging a long boycott can't be punished -- and even one instance of entrance blockage, which would cause vastly less damage than the boycott, would be punishable, whether or not it's religiously based. So people are constitutionally entitled to inflict considerably greater harms through the communicative impact of their speech than through the religiously motivated conduct. Or am I mistaken here? As to the housing discrimination scenario, I just think Greg's comparison cases are actually not terribly similar. The gay couple's claim isn't necessarily that they're deeply emotionally distressed -- rather, it is that they have a legal right to equal treatment, regardless of whether the unequal treatment is terribly distressing. Maybe this right flows from a general sense that the unequal treatment is usually distressing
RE: Free Exercise, Free Speech, and harm to others
OK, I see your point and it helps me refine the hypo: 1. I pray I can find someone to put an end to your annoying existence on this planet. 2. I pray to God every night that somehow the angel of death visits you and puts an end to your annoying existence on this planet. Assuming that the recipient of the words doesn't treat #2 as a silliness (e.g. reaction of an athiest) but has a theological perspective that makes it upsetting and emotionally distressful, ought not #2 be protected and #1 actionable (assuming a showing of damage or injury, etc.)? Is it because the second is unprovable to a purely rational mind? Would it be on account of #2 being religiously motivated? (By religiously motivated, do you mean the motivation for the belief that the threat can be made, or the underlying dispute that generates the felt need to make the threat? I'm assuming the first, but perhaps I'm misreading your explanation.) Jim Maule [EMAIL PROTECTED] 3/14/2005 7:08:23 PM I suspect that the distinction here isn't religious speech vs. secular speech and more (1) speech that sounds like warning of action by others who are unrelated to the speakers vs. (2) speech that sounds like warning of action by the speaker or his confederates. If a mother is really angry at a child and says You're going to get killed if you use drugs / run around with bad kids / do other dangerous stuff, we wouldn't treat that as a threat, because it's clearly a warning of what others might do. Conversely, God is going to call you to judgment soon might well be a threat if in context it's pretty clear that the person is conveying a message that he or his confederates might be the tools that God uses for this call. More broadly, there surely shouldn't be unqualified Free Exercise Clause protection for all threats that are religiously motivated, no? Eugene Jim Maule writes: Compare You're going to get yours some day, and it could be within the next minute (shouted, eyes bulging, face red, fists clenched, during law conerence disputing whether a state should permit same-gender marriages) with You're going to burn in hell and swim with the demons some day, and it could be within the next minute because you never know when God's going to call you to judgment (shouted, eyes bulging, face red, fists clenched, during theological convention disputing whether a denomination should sanctify same-gender marriages). Recipient of speech in both instances sues, alleging emotional distress, fear of harm, and physical manifestations thereof. Recipient in both instances is a person who believes in the existence of hell and for whom an eternal placement therein is a horrifying thought. Recipient is also a person who dreads physical pain. If the first tirade is construed as fighting words, is the second necessarily treated the same way? I can see the same jury finding for the plaintiff in the first but not in the second. Why? Because the second involves speech the meaning of which is immersed in theological mystery (after all, who really knows for sure?) whereas the first involves speeach the meaning of which is immersed in a not so mysterious message of imminent physical threat. Note that the conduct and principal issue are identical, but the location, context, and participants differ (secular v. theological). Would you protect the speech in both cases? Not protect it in both cases? Or leave open the possibility of different outcomes? Jim Maule Villanova University School of Law [EMAIL PROTECTED] 3/14/2005 6:23:40 PM I'm not sure why it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech) -- why not severely limit the extent to which courts impose liability on emotional distress caused by speech, period? If Senator Llynt gives a speech decrying the political positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a generally bad person, it seems to me that he should be categorically immune from IIED liability even if his speech is purely nonreligious. If I'm right, then why is there any need for extra protection for religious speech? (I realize that there might be some situations where religious speech is immune from liability because it's incapable of secular proof; but generally the remedy there is to treat is the same as secular opinions that are incapable of proof, which are constitutionally protected,) Eugene Jim Maule writes: Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a sermon in his progressive church decrying the theological positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a modern-day Pharisee. The sermon concludes
RE: Free Exercise, Free Speech, and harm to others
I think the question in either case would be (1) whether the listener would reasonably understand this as a threat of attack by the speaker or the speaker's confederates and (2) whether the speaker intended to put the listener in fear of such attack (see Virginia v. Black). So it's possible that #2 would indeed be a threat, and that #1 would not be, depending on what else the listener knows about the speaker. If the speaker or his buddies are suspected of killing other annoying people, for instance, statement #2 might well be punishable. Consider this statement: This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down. Other neighboring restaurants have in fact burned down after they refused to take down blasphemous pictures. The speaker is religiously motivated (which I take it is the test for a Sherbert/Yoder-era free exercise claim), and as it happens the underlying dispute, as well as the language of the statement, are religious. If the speaker intends to make the listener afraid of burning by the speaker or his confederates, and a reasonable listener would have this fear, then it seems to me that this is a punishable threat. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of James Maule Sent: Monday, March 14, 2005 5:38 PM To: religionlaw@lists.ucla.edu Subject: RE: Free Exercise, Free Speech, and harm to others OK, I see your point and it helps me refine the hypo: 1. I pray I can find someone to put an end to your annoying existence on this planet. 2. I pray to God every night that somehow the angel of death visits you and puts an end to your annoying existence on this planet. Assuming that the recipient of the words doesn't treat #2 as a silliness (e.g. reaction of an athiest) but has a theological perspective that makes it upsetting and emotionally distressful, ought not #2 be protected and #1 actionable (assuming a showing of damage or injury, etc.)? Is it because the second is unprovable to a purely rational mind? Would it be on account of #2 being religiously motivated? (By religiously motivated, do you mean the motivation for the belief that the threat can be made, or the underlying dispute that generates the felt need to make the threat? I'm assuming the first, but perhaps I'm misreading your explanation.) Jim Maule [EMAIL PROTECTED] 3/14/2005 7:08:23 PM I suspect that the distinction here isn't religious speech vs. secular speech and more (1) speech that sounds like warning of action by others who are unrelated to the speakers vs. (2) speech that sounds like warning of action by the speaker or his confederates. If a mother is really angry at a child and says You're going to get killed if you use drugs / run around with bad kids / do other dangerous stuff, we wouldn't treat that as a threat, because it's clearly a warning of what others might do. Conversely, God is going to call you to judgment soon might well be a threat if in context it's pretty clear that the person is conveying a message that he or his confederates might be the tools that God uses for this call. More broadly, there surely shouldn't be unqualified Free Exercise Clause protection for all threats that are religiously motivated, no? Eugene Jim Maule writes: Compare You're going to get yours some day, and it could be within the next minute (shouted, eyes bulging, face red, fists clenched, during law conerence disputing whether a state should permit same-gender marriages) with You're going to burn in hell and swim with the demons some day, and it could be within the next minute because you never know when God's going to call you to judgment (shouted, eyes bulging, face red, fists clenched, during theological convention disputing whether a denomination should sanctify same-gender marriages). Recipient of speech in both instances sues, alleging emotional distress, fear of harm, and physical manifestations thereof. Recipient in both instances is a person who believes in the existence of hell and for whom an eternal placement therein is a horrifying thought. Recipient is also a person who dreads physical pain. If the first tirade is construed as fighting words, is the second necessarily treated the same way? I can see the same jury finding for the plaintiff in the first but not in the second. Why? Because the second involves speech the meaning of which is immersed in theological mystery (after all, who really knows for sure?) whereas the first involves speeach the meaning of which is immersed in a not so mysterious message of imminent physical threat. Note that the conduct and principal issue are identical, but the location, context, and participants differ (secular v. theological). Would you
RE: Free Exercise, Free Speech, and harm to others
Suppose the statement was a wee bit different: This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down, for example, by causing lightning to strike or a meteor fragment to hit, which I pray every day God will do if you don't let God answer my other prayer that you see the light and take down those pictures. And assume there hasn't been a previous history of restaurants burning down. Much preaching contains the not-so-veiled threat of divine retribution. So in this case the speech has to be protected. Now suppose a few days later an unexplained fire destroys the restaurant. Shortly before a thunderstorm. Speaker argues her prayers were answered. Case probably dismissed on basis of failure of proof. Then it happens again. And again. At some point the coincidences become too much. So does protected speech lose its protection based on the track record of previous speech? By the same person? By confederates? By proselytizers of another denomination or sect? Jim Maule [EMAIL PROTECTED] 3/14/2005 10:33:25 PM I think the question in either case would be (1) whether the listener would reasonably understand this as a threat of attack by the speaker or the speaker's confederates and (2) whether the speaker intended to put the listener in fear of such attack (see Virginia v. Black). So it's possible that #2 would indeed be a threat, and that #1 would not be, depending on what else the listener knows about the speaker. If the speaker or his buddies are suspected of killing other annoying people, for instance, statement #2 might well be punishable. Consider this statement: This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down. Other neighboring restaurants have in fact burned down after they refused to take down blasphemous pictures. The speaker is religiously motivated (which I take it is the test for a Sherbert/Yoder-era free exercise claim), and as it happens the underlying dispute, as well as the language of the statement, are religious. If the speaker intends to make the listener afraid of burning by the speaker or his confederates, and a reasonable listener would have this fear, then it seems to me that this is a punishable threat. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of James Maule Sent: Monday, March 14, 2005 5:38 PM To: religionlaw@lists.ucla.edu Subject: RE: Free Exercise, Free Speech, and harm to others OK, I see your point and it helps me refine the hypo: 1. I pray I can find someone to put an end to your annoying existence on this planet. 2. I pray to God every night that somehow the angel of death visits you and puts an end to your annoying existence on this planet. Assuming that the recipient of the words doesn't treat #2 as a silliness (e.g. reaction of an athiest) but has a theological perspective that makes it upsetting and emotionally distressful, ought not #2 be protected and #1 actionable (assuming a showing of damage or injury, etc.)? Is it because the second is unprovable to a purely rational mind? Would it be on account of #2 being religiously motivated? (By religiously motivated, do you mean the motivation for the belief that the threat can be made, or the underlying dispute that generates the felt need to make the threat? I'm assuming the first, but perhaps I'm misreading your explanation.) Jim Maule [EMAIL PROTECTED] 3/14/2005 7:08:23 PM I suspect that the distinction here isn't religious speech vs. secular speech and more (1) speech that sounds like warning of action by others who are unrelated to the speakers vs. (2) speech that sounds like warning of action by the speaker or his confederates. If a mother is really angry at a child and says You're going to get killed if you use drugs / run around with bad kids / do other dangerous stuff, we wouldn't treat that as a threat, because it's clearly a warning of what others might do. Conversely, God is going to call you to judgment soon might well be a threat if in context it's pretty clear that the person is conveying a message that he or his confederates might be the tools that God uses for this call. More broadly, there surely shouldn't be unqualified Free Exercise Clause protection for all threats that are religiously motivated, no? Eugene Jim Maule writes: Compare You're going to get yours some day, and it could be within the next minute (shouted, eyes bulging, face red, fists clenched, during law conerence disputing whether a state should permit same-gender marriages) with You're going to burn in hell and swim with the demons some day, and it could be within the next minute because you never know when God's going to call you to judgment (shouted
RE: Free Exercise, Free Speech, and harm to others
My analysis: Warning of bad behavior by others, who are genuinely unrelated to the speaker, and who are understood by listeners to be unrelated to the speaker is protected. Warning of retribution by God is thus not a threat -- but neither is warning of retribution by religious zealots, if it's clear from context that the zealots aren't the speaker or his confederates. Warning of bad behavior by yourself or by your confederates is unprotected. Warning of retribution is thus a threat, if it's intended to and reasonably likely to lead the listener to think that you or your confederates will act as God's agents in this. This may well leave lots of questions about when ambiguous warnings are really warnings of future misconduct by the speaker or his confederates. But that's true whether you're warning of retaliation by God or by others. A closing set of examples: 1. Don't have promiscuous sex, or else God will strike you dead. 2. Don't have promiscuous sex, or else you'll die of AIDS. 3. Don't have promiscuous sex, or else your crazy cousin will kill you. (Assume that the speaker is unconnected to the cousin.) 4. Don't have promiscuous sex, cousin, because I'll kill you to wipe off the stain from our family honor. 5. Don't have promiscuous sex, cousin, because God will strike you dead. (Assume that other people the listeners know have been killed under mysterious circumstances, and it's assumed that these were honor killings by family.) Seems to me that #1-3 are protected and #4-5 are unprotected; the relevant distinction isn't the religiosity of the motivation or the statement, but the items I mention above. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of James Maule Sent: Monday, March 14, 2005 7:52 PM To: religionlaw@lists.ucla.edu Subject: RE: Free Exercise, Free Speech, and harm to others Suppose the statement was a wee bit different: This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down, for example, by causing lightning to strike or a meteor fragment to hit, which I pray every day God will do if you don't let God answer my other prayer that you see the light and take down those pictures. And assume there hasn't been a previous history of restaurants burning down. Much preaching contains the not-so-veiled threat of divine retribution. So in this case the speech has to be protected. Now suppose a few days later an unexplained fire destroys the restaurant. Shortly before a thunderstorm. Speaker argues her prayers were answered. Case probably dismissed on basis of failure of proof. Then it happens again. And again. At some point the coincidences become too much. So does protected speech lose its protection based on the track record of previous speech? By the same person? By confederates? By proselytizers of another denomination or sect? Jim Maule [EMAIL PROTECTED] 3/14/2005 10:33:25 PM I think the question in either case would be (1) whether the listener would reasonably understand this as a threat of attack by the speaker or the speaker's confederates and (2) whether the speaker intended to put the listener in fear of such attack (see Virginia v. Black). So it's possible that #2 would indeed be a threat, and that #1 would not be, depending on what else the listener knows about the speaker. If the speaker or his buddies are suspected of killing other annoying people, for instance, statement #2 might well be punishable. Consider this statement: This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down. Other neighboring restaurants have in fact burned down after they refused to take down blasphemous pictures. The speaker is religiously motivated (which I take it is the test for a Sherbert/Yoder-era free exercise claim), and as it happens the underlying dispute, as well as the language of the statement, are religious. If the speaker intends to make the listener afraid of burning by the speaker or his confederates, and a reasonable listener would have this fear, then it seems to me that this is a punishable threat. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of James Maule Sent: Monday, March 14, 2005 5:38 PM To: religionlaw@lists.ucla.edu Subject: RE: Free Exercise, Free Speech, and harm to others OK, I see your point and it helps me refine the hypo: 1. I pray I can find someone to put an end to your annoying existence on this planet. 2. I pray to God every night that somehow the angel of death visits you and puts an end to your annoying existence on this planet. Assuming
RE: Free Exercise, Free Speech, and harm to others
I actually agree with Greg on much here: The reason that we allow people to inflict various harms on others via their speech has a lot to do with *the way* the harm is inflicted: When harm is inflicted by persuading, informing, or offending people with the content of speech, we treat that infliction of harm as privileged. And that's the reason that I think it's a mistake to say (and Greg hasn't said it, but I think others have), The Free Speech Clause caselaw gives people the constitutional right to harm others through speech, so the Free Exercise Clause should be interpreted as giving people the constitutional right to harm others through religiously motivated conduct. The Free Speech Clause caselaw lets people harm others through some specific speech-related ways. It doesn't follow that the Free Exercise Clause lets people harm others in other ways -- whether through discriminating against them, trespassing on their property, breaching contracts, and so on, even if the harms are comparatively minor. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sisk, Gregory C. Sent: Monday, March 14, 2005 5:15 PM To: 'Law Religion issues for Law Academics' Subject: RE: Free Exercise, Free Speech, and harm to others I accept Eugene's observation that my comparison cases suffer from inadequate similarity comparison purposes. Perhaps at some point I'll try harder to develop less inferior paired hypotheticals to better express my point (perhaps that task will seem more appealing in a few weeks when I'm grading blue books). But I still am not convinced either (1) that a greater degree of burden from speech is acceptable because freedom of speech is a more robust constitutional right than free exercise, or (2) that the harms identified in the Flynt/Glynt hypotheticals are truly comparable and thus illustrate the point. Indeed, in the Glynt hypothetical, if Mary Glynt engaged in the same expression by bull-horn at the house window but offered a free speech rather than free exercise justification, the result would be the same -- she still would lose. Thus, it isn't the nature of the right that explains the differing results but something about the nature of the intrusion or the harm or the presence or absence of an attenuated link between them. Along these same lines, I'm persuaded that Eugene has a point that we permit a larger range of expression under freedom of speech than conduct under free exercise. But isn't that in part because speech is different from conduct (as Jim Maule suggested) rather than because the constitutional rights underlying one or the other are at different points in the hierarchy of constitutional values? While speech may and sometimes does cause harm, it almost always does so indirectly, as it depends for efficacy upon persuading someone else that the message is credible or that a response should be made. Thus, speech that is harmful depends upon a chain from the speaker through the medium to a recipient who in turn chooses to respond in a manner that induces harm to the recipient or someone else. Even speech that is intended to cause harm may prove ineffective due to breaks in the chain, especially if the recipient finds it uninteresting or unpersuasive. By contrast, conduct -- whether expressive in nature or not -- is immediate and if that conduct is harmful, the harm is rather directly realized. And related to that, I still think -- although my clumsy hypotheticals may not have illustrated it well -- that the harms involved may be different in nature or degree. While one subjectively and understandably might regard being slandered before millions of readers as a greater source of distress than being momentarily accosted at one's home by a loud protester, the law always has treated a physical invasion as different from an emotional response, even an induced emotional response. Indeed, some strains of law even today still preclude recovery in tort for emotional distress that is unaccompanied by physical injury. If there is anything to what I'm trying to say here, would it not follow that different treatment of the trespasser who asserts a free exercise defense from the magazine writer who claims freedom of speech turns not upon which actor invokes which constitutional protection but rather upon the nature of the impact caused by the underlying conduct/expression? Greg Sisk -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 3:57 PM To: Law Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I appreciate Greg's thoughtful analysis, but I think that ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's rights doesn't resolve the problems. I would
