One recent free speech controversy centers on the use of government funds to encourage certain types of speech. Unfortunately, this debate reflects a First Amendment misunderstanding that government funding of certain types of speech is a government restriction of free speech.
In 2004, Congress passed the Solomon Amendment which took some federal funding from law schools that did not give military recruiters equal time and opportunity as other career recruiters. Several schools had begun discriminating against military recruiters in protest of military policy regarding homosexuals. Remembering Tinker v. Des Moines School District's statement that "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the law schools responded to the statute by filing suit, claiming that their right to free speech had been violated. In Forum for Academic and Institutional Rights, Inc. (FAIR) v. Rumsfeld, the Supreme Court sided with Congress and left the law intact.
Government use of funds became a free speech issue even before the Solomon Amendment. The National Endowment for the Arts (NEA) was created by Congress in 1965 to encourage culture by funding superior artists. Since its creation, the NEA has given hundreds of millions of dollars to "projects and productions which have substantial national or international artistic and cultural significance, giving emphasis to American creativity and cultural diversity."
Following a 1990 controversy involving sexually explicit photographs, Congress enacted a statute preventing NEA funds from going to "materials which in the judgment of [the NEA] may be considered obscene." This law was soon struck down by a Federal District Court in Bella Lewitzky Dance Foundation v. NEA. The case was not appealed by the NEA, so the ruling stood. However, Congress made another law which said that NEA grants would take "into consideration general standards of decency and respect for the diverse beliefs and values of the American public." Artists complained again that this violated their free speech, but the Supreme Court upheld this law in NEA v. Finley.
Both of these situations fit into the same issue: may the government affect the marketplace of ideas through discriminatory funding? It is important to note that the government action of has no direct link with First Amendment. The Constitution states that "Congress shall make no law . . . abridging the freedom of speech." Neither the NEA nor the Solomon Amendment are abridgements on the freedom of speech because neither limits who is allowed to speak or what they are allowed to say. The First Amendment focuses on what government may not do, and says nothing about what it may do. Thus, rewarding certain speech with federal funds is a constitutionally tolerable action.
Besides, it is unavoidable for the government to discriminate to some extent. The Supreme Court sees no problem in Congress's choice in funding one organization or project over another. Logically, it would be impossible for Congress to fund anything if it had to fund everything. In the situation of the NEA, there is simply too much art to fund. Thus, funding may excusably be done unfairly. In NEA v. Finley, the Supreme Court ruled that "Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." In other words, things like criminal prosecution must be equal for everyone, but funding need not be.
By funding certain speech, the government makes no impact on what people are allowed to say. This is especially obvious in the FAIR case. The schools were still allowed to openly disagree with military policy, whether in their classes or their publications. The government's discrimination was only against one type of action (not giving military recruiters equal access) and not against the idea behind the action. In United States v. Brien, the Court rejects that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Thus, the fact that the schools intended to protest military policy regarding homosexuals is no defense, since banning recruiters is not "inherently expressive" of that idea. As the FAIR Court writes, "Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds."
It is important to realize that the First Amendment is a sweeping regulation on government, but it does not reject every government action regarding speech. It only rejects legislation that directly restricts free expression. Additional funding for certain speech does not fall into this category. Therefore, additional funding for certain speech cannot be labeled unconstitutional.
Note:
My gut says that it is foolish to expect true freedom of speech anywhere there is government funds. Government involvement, by its very nature, is counter to the idea of free speech. That is why it finds its way into our Constitution as a completely negative command, a governmental inability. Indeed, this is why there is a First Amendment in the first place. Thus, expecting to find freedom in government programs, even in public education, is somewhat misguided (though that is how things ought to be). For the safety of the marketplace of ideas, the safest legal action is to keep government out of it altogether. Unfortunately, in this issue, the Constitution does not give us the tools to do this.
ATTENTION ASPIRING POETS:
The NEA funded this poem. It is indeed seven letters long. Apparently, one can make a living by misspelling words.
Thursday, November 29, 2007
Thursday, November 15, 2007
Speech Buffers
The Massachusetts legislature recently passed a bill barring anyone from standing within thirty-five feet of any reproductive health center. This bill supersedes a law that created a six foot barrier from protesters around anyone going to or from a "reproductive health care facility," which the law defines as a "a place, other than within a hospital, where abortions are offered or performed." The new law (it was signed Wednesday) has no such "floating buffer." It simply outlaws anyone from being that close to an abortion clinic unless they are either going in or out of it or passing by.
Although it never mentions protest, the new law is clearly designed to limit the actions of anti-abortion protesters. Even so, Kelly O’Bryan, the political director for Naral Pro-Choice Massachusetts claims, "We’re not trying to silence [protesters] at all." Despite her assertion (or perhaps because of her denial) I think it is prudent to test the new Massachusetts law against the First Amendment, since its stated purpose is to stop certain speech (harassment), and its effect is to limit any speech.
The previous law in Massachusetts was protected by the Supreme Court's decision in Hill v. Colorado, which upheld a Colorado law that was almost identical to the old Massachusetts law. Although the new Massachusetts statute goes beyond both its predecessor and the Colorado law, Hill v. Colorado is useful, at least in that it shows the logical struggle the Court went through to find reproductive health center buffer zones constitutional.
The Supreme Court rules in Hill that the Colorado statute is not content regulation even though it is location specific. The majority writes, "A statute prohibiting solicitation in airports that was motivated by the aggressive approaches of Hari-Krishnas does not become content based solely because its application is confined to airports." However, this is a weak analogy. A statute prohibiting solicitation in airports is not content based because it bans thousands of types of content. On the other hand, the Colorado law effectively bans only one type of content - protests against abortion - because that is the vast majority of content distributed to people going in and out of reproductive health centers. The Colorado law and the airport law are similar in theory, but not in effect.
The Court notes that "the statute's restriction seeks to protect those who enter a health care facility from the harassment . . . the dogging, and the implied threat of physical touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue vociferously face-to-face and perhaps thrust an undesired handbill upon her." I question, then, why the statute does not make "harassment, the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical touching" the object of its ban. As it is written, the law covers these things as well as many that are not harmful to anyone. "The fact that the coverage of a statute is broader than the specific concern that led to its enactment is of no constitutional significance," writes the Supreme Court in Hill. On the contrary, when the supreme law of the land says that "Congress shall make no law . . . abridging the freedom of speech," legislatures are compelled be specific when they decide to deviate. It becomes obvious that the law is not narrowly tailored when the court admits, "special problems that may arise where clinics have particularly wide entrances or are situated within multipurpose office buildings may be worked out as the statute is applied." Narrow tailoring certainly implies that authorities will know how to apply the laws.
The court found the Colorado law to be constitutional. However, as demonstrated above, the opinion has more than one weakness. The Supreme Court's findings in the Hill case do not give the new Massachusetts law a constitutional free pass. The "floating buffer" types of legislation are constitutional, according to the Court, because, "no speaker is silenced. And no message is prohibited," since physical approach was the object of the Colorado law. The Colorado buffer zones were upheld because protesters and pamphleteers could still "communicate at a 'normal conversational distance.'" In other works, the the Court upheld the Colorado law because speech was not effected. The Massachusetts law departs from this and silences everyone within a boundary. So doing, it takes itself further from being a protection against harassment and becomes an actual limitation on speech. It stops protest, whether it is a nuisance or not.
It is important to remember that protecting people emotionally is not a constitutionally valid reason for a limitation of speech. As the court found in R.A.V. v. City of St. Paul. "The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected." Thus, legislatures need to be careful to make laws that only stop obstruction and physical intimidation. Anything else is beyond the powers the Constitution gives to lawmakers.
The First Amendment protects the right to speak and to publish. What better place to do these things than a public sidewalk? As the Supreme Court notes in Hill v. Colorado, "public sidewalks, streets, and ways . . . are 'quintessential' public forums for free speech." It is clear that the new Massachusetts law breaks from the court-protected pattern of "floating buffer" zone laws and is unconstitutional because of its over-broad, though well intentioned, ban on all speech.
Interesting:
An article about American justices citing other nations courts.
Although it never mentions protest, the new law is clearly designed to limit the actions of anti-abortion protesters. Even so, Kelly O’Bryan, the political director for Naral Pro-Choice Massachusetts claims, "We’re not trying to silence [protesters] at all." Despite her assertion (or perhaps because of her denial) I think it is prudent to test the new Massachusetts law against the First Amendment, since its stated purpose is to stop certain speech (harassment), and its effect is to limit any speech.
The previous law in Massachusetts was protected by the Supreme Court's decision in Hill v. Colorado, which upheld a Colorado law that was almost identical to the old Massachusetts law. Although the new Massachusetts statute goes beyond both its predecessor and the Colorado law, Hill v. Colorado is useful, at least in that it shows the logical struggle the Court went through to find reproductive health center buffer zones constitutional.
The Supreme Court rules in Hill that the Colorado statute is not content regulation even though it is location specific. The majority writes, "A statute prohibiting solicitation in airports that was motivated by the aggressive approaches of Hari-Krishnas does not become content based solely because its application is confined to airports." However, this is a weak analogy. A statute prohibiting solicitation in airports is not content based because it bans thousands of types of content. On the other hand, the Colorado law effectively bans only one type of content - protests against abortion - because that is the vast majority of content distributed to people going in and out of reproductive health centers. The Colorado law and the airport law are similar in theory, but not in effect.
The Court notes that "the statute's restriction seeks to protect those who enter a health care facility from the harassment . . . the dogging, and the implied threat of physical touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue vociferously face-to-face and perhaps thrust an undesired handbill upon her." I question, then, why the statute does not make "harassment, the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical touching" the object of its ban. As it is written, the law covers these things as well as many that are not harmful to anyone. "The fact that the coverage of a statute is broader than the specific concern that led to its enactment is of no constitutional significance," writes the Supreme Court in Hill. On the contrary, when the supreme law of the land says that "Congress shall make no law . . . abridging the freedom of speech," legislatures are compelled be specific when they decide to deviate. It becomes obvious that the law is not narrowly tailored when the court admits, "special problems that may arise where clinics have particularly wide entrances or are situated within multipurpose office buildings may be worked out as the statute is applied." Narrow tailoring certainly implies that authorities will know how to apply the laws.
The court found the Colorado law to be constitutional. However, as demonstrated above, the opinion has more than one weakness. The Supreme Court's findings in the Hill case do not give the new Massachusetts law a constitutional free pass. The "floating buffer" types of legislation are constitutional, according to the Court, because, "no speaker is silenced. And no message is prohibited," since physical approach was the object of the Colorado law. The Colorado buffer zones were upheld because protesters and pamphleteers could still "communicate at a 'normal conversational distance.'" In other works, the the Court upheld the Colorado law because speech was not effected. The Massachusetts law departs from this and silences everyone within a boundary. So doing, it takes itself further from being a protection against harassment and becomes an actual limitation on speech. It stops protest, whether it is a nuisance or not.
It is important to remember that protecting people emotionally is not a constitutionally valid reason for a limitation of speech. As the court found in R.A.V. v. City of St. Paul. "The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected." Thus, legislatures need to be careful to make laws that only stop obstruction and physical intimidation. Anything else is beyond the powers the Constitution gives to lawmakers.
The First Amendment protects the right to speak and to publish. What better place to do these things than a public sidewalk? As the Supreme Court notes in Hill v. Colorado, "public sidewalks, streets, and ways . . . are 'quintessential' public forums for free speech." It is clear that the new Massachusetts law breaks from the court-protected pattern of "floating buffer" zone laws and is unconstitutional because of its over-broad, though well intentioned, ban on all speech.
Interesting:
An article about American justices citing other nations courts.
Thursday, November 8, 2007
Something Fishy
I needed a break from policy debate and court cases this week, so I decided to find some free speech philosophy to write about. A couple of weeks ago, I noticed an essay by Stanley Fish called "There's No Such Thing as Free Speech . . . And It's a Good Thing Too." Fish is a literary scholar who "got into the First Amendment or free speech business" because of his interest in John Milton. He currently keeps an editorial blog for the New York Times. Hoping that the essay would make a good blog topic, I bought Fish's book (which shares the essay's title) and read the essay.
As I read "There's No Such Thing as Free Speech," I noticed that the essay was a direct attack on my libertarian pondering in "Abhorring Hate Speech." Fish's essay completely contradicts my "faith" that political inaction regarding speech is best for society, and in his conclusion, he claims, contrary to my article, that hate speech should be regulated.
The Myth of Free Speech
Fish immediately attacks the existence of free speech. Essentially, he says, "Free Speech is just the name we give to the verbal behavior that serves the substantive agendas we wish to advance." In other words, it is simply a concept created for political use, something nice-sounding that we can cloak otherwise unappealing viewpoints with. This leads to the second point: "Restriction [of expression] . . . is constitutive of expression." The general framework of what we can and cannot say is a form of expression itself, and expression would be meaningless without it. Thus, Fish claims, "when the pinch comes . . . and the institution (be it the church, state, or university) is confronted by behavior subversive of its own rationale, it will respond by declaring . . . 'That we extirpate,' not because an exception to general freedom has suddenly . . . been announced, but because the freedom has never been general and has always been understood against the background of an ordinary exclusion that gives it meaning." In claiming that "There's No Such Thing as Free Speech," Fish means that as much as we pretend to support the lofty ideal of free speech, it is no more than a guise (new word picture) for our political aims, for speech derives its meaning from what is or is not restricted.
Speech and Action
Another trouble with an over-arching right to free speech, according to Fish, is that it is difficult to distinguish expression from action. Obviously, we cannot say that all action is speech (even though it has ideas), for "no one would think to frame a First Amendment that began, 'Congress shall make no law abridging freedom of action.'" Speech must be something more particular than a mere conveyor ideas. It "must be a special form of action lacking the aspects of action that cause it to be an object of regulation." Fish notes the "fighting words" exception as an action-like regulation of something that may have been speech. From this, he brings us back to the very same conclusion as above, that "there was never anything in the zone [of constitutionally protected speech] in the first place." There is no good way of separating speech from action, so "insofar as the point of the First Amendment is to identify speech separable from conduct . . . , there is no speech and therefore nothing for the First Amendment to protect."
Faith
Fish admits that my libertarian faith, if true, "would weaken one of [his] key points, that speech in and of itself cannot be a value." Though he does not answer my claim with any empirical evidence (I do not think such evidence could ever be collected), he argues, "it raises more questions than it answers" and can be seen as a strategy "designed to delegitimize the complaints of victimized groups." Fish attributes the high acceptance of this "faith" to the fact that people "do not wish what they correctly take to be the alternative. That alternative is politics." However, as mentioned above, Freedom of Speech is itself a political tool.
Fish concludes that free speech advocates "urge us to put our faith in apolitical abstractions, but the abstractions they invoke . . . only come in political guises, and therefore in trusting them we fall (unwittingly) under the sway of the very forces we wish to keep at bay." Thus, Fish feels no qualms stating that "the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices."
My View
Fish repeatedly attacks free speech for its political nature. Politics is hardly a problem. The point of free speech, or of speech in general, is to advance some sort of policy, so why should it be wrong to use Free Speech as part of your argument. It certainly is not some sort of argument winning wild card. Either way, the political "misuse" of Free Speech is certainly not proof that it does not exist (and, incidentally, much of the essay is spent making this point). His next claim, the one about "institutions" extirpating any speech against their rationale is void for this simple reason: it does not always happen that way. Take, for example, the Communications Decency Act. Pornography is certainly against the "rationale" of our government, but the Supreme Court upheld the Freedom of Speech. In other words, Free Speech is not totally subjective to the caprices of authorities. In fact, noting the limited exceptions in over two hundred years of policy-making, it is fair to say that Free Speech does indeed exist, having a power of its own.
I have little patience for Fish's argument regarding the distinction between speech and action. I submit that speech is any action that only conveys ideas. When I write, I am conveying ideas, and doing nothing else. Words on a shirt convey ideas through a different medium, but still convey only ideas. However, should I trip someone, I would be both conveying an idea (that I do not like them) and acting (sticking my foot out). In almost every case, the difference between speech and action is intuitive. Paradoxically, it requires more mental effort to argue for a confusion between them.
Fish affirms the classic neoliberal viewpoint that we should solve all of our speech problems with fresh legislation, and rejects Libertarianism because of the questions it raises. On the contrary, Libertarianism only raises two significant questions: First, "Will we eventually learn the truth?" In the issue he raises, hate speech, the answer is almost positively affirmative. A glance at the last fifty years shows how far we have come already. Second, "Can we afford to wait?" This question is much harder, but, as Fish mentions, my answer is in his neoliberal alternative. To see if we prefer Freedom of Speech, we have only to look at the past and see times when the government would have liked to solve its problems by limiting it. The Pentagon Papers case comes to mind, as well as the "McCarthy era" of viewpoint discrimination. Freedom of Speech was the only protection against the government in these cases. And these are not, as Fish would like to claim, "slippery-slope" hypothetical situations, but real situations where freedom was unnecessarily restricted. It is interesting that Fish uses a minority rights issue like hate speech as an example, for what he proposes is nothing other than to throw the fate of the minority to the whims of the majority (this is, after all, a representative government). In the end, I would prefer to risk obnoxious speech by private citizens instead of government over-restriction and tyranny of the majority.
Fish's argument rests on a single definition: Free Speech. He claims that this freedom is created only by restrictions on it. On the contrary, Free Speech is the lack of restrictions. I would not claim that speech is now without restriction, but only that the restrictions are so few and so narrow that Free Speech really does exist. Beyond this definition, Fish gives a poor solution. He says that politicizing is a problem, so why hand control of speech to the politicians? He thinks Free Speech is a tool used against minorities, so why hand control of it to the majority? I acknowledge that we do not live in the best of all possible worlds, but I can not understand Fish's determination to destroy what good we have.
Dear Readers,
Along with your regular comments, I was wondering if you could help me out by suggesting a better definition of "speech" that would clearly and concisely separate it from action.
I could not find "There's No Such Thing as Free Speech . . . And It's a Good Thing Too" posted anywhere on the internet (which is why I quoted so much), but I did find an interview he did about it.
Extraneous:
An interesting article by Stanley Fish related to my last post.
As I read "There's No Such Thing as Free Speech," I noticed that the essay was a direct attack on my libertarian pondering in "Abhorring Hate Speech." Fish's essay completely contradicts my "faith" that political inaction regarding speech is best for society, and in his conclusion, he claims, contrary to my article, that hate speech should be regulated.
The Myth of Free Speech
Fish immediately attacks the existence of free speech. Essentially, he says, "Free Speech is just the name we give to the verbal behavior that serves the substantive agendas we wish to advance." In other words, it is simply a concept created for political use, something nice-sounding that we can cloak otherwise unappealing viewpoints with. This leads to the second point: "Restriction [of expression] . . . is constitutive of expression." The general framework of what we can and cannot say is a form of expression itself, and expression would be meaningless without it. Thus, Fish claims, "when the pinch comes . . . and the institution (be it the church, state, or university) is confronted by behavior subversive of its own rationale, it will respond by declaring . . . 'That we extirpate,' not because an exception to general freedom has suddenly . . . been announced, but because the freedom has never been general and has always been understood against the background of an ordinary exclusion that gives it meaning." In claiming that "There's No Such Thing as Free Speech," Fish means that as much as we pretend to support the lofty ideal of free speech, it is no more than a guise (new word picture) for our political aims, for speech derives its meaning from what is or is not restricted.
Speech and Action
Another trouble with an over-arching right to free speech, according to Fish, is that it is difficult to distinguish expression from action. Obviously, we cannot say that all action is speech (even though it has ideas), for "no one would think to frame a First Amendment that began, 'Congress shall make no law abridging freedom of action.'" Speech must be something more particular than a mere conveyor ideas. It "must be a special form of action lacking the aspects of action that cause it to be an object of regulation." Fish notes the "fighting words" exception as an action-like regulation of something that may have been speech. From this, he brings us back to the very same conclusion as above, that "there was never anything in the zone [of constitutionally protected speech] in the first place." There is no good way of separating speech from action, so "insofar as the point of the First Amendment is to identify speech separable from conduct . . . , there is no speech and therefore nothing for the First Amendment to protect."
Faith
Fish admits that my libertarian faith, if true, "would weaken one of [his] key points, that speech in and of itself cannot be a value." Though he does not answer my claim with any empirical evidence (I do not think such evidence could ever be collected), he argues, "it raises more questions than it answers" and can be seen as a strategy "designed to delegitimize the complaints of victimized groups." Fish attributes the high acceptance of this "faith" to the fact that people "do not wish what they correctly take to be the alternative. That alternative is politics." However, as mentioned above, Freedom of Speech is itself a political tool.
Fish concludes that free speech advocates "urge us to put our faith in apolitical abstractions, but the abstractions they invoke . . . only come in political guises, and therefore in trusting them we fall (unwittingly) under the sway of the very forces we wish to keep at bay." Thus, Fish feels no qualms stating that "the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices."
My View
Fish repeatedly attacks free speech for its political nature. Politics is hardly a problem. The point of free speech, or of speech in general, is to advance some sort of policy, so why should it be wrong to use Free Speech as part of your argument. It certainly is not some sort of argument winning wild card. Either way, the political "misuse" of Free Speech is certainly not proof that it does not exist (and, incidentally, much of the essay is spent making this point). His next claim, the one about "institutions" extirpating any speech against their rationale is void for this simple reason: it does not always happen that way. Take, for example, the Communications Decency Act. Pornography is certainly against the "rationale" of our government, but the Supreme Court upheld the Freedom of Speech. In other words, Free Speech is not totally subjective to the caprices of authorities. In fact, noting the limited exceptions in over two hundred years of policy-making, it is fair to say that Free Speech does indeed exist, having a power of its own.
I have little patience for Fish's argument regarding the distinction between speech and action. I submit that speech is any action that only conveys ideas. When I write, I am conveying ideas, and doing nothing else. Words on a shirt convey ideas through a different medium, but still convey only ideas. However, should I trip someone, I would be both conveying an idea (that I do not like them) and acting (sticking my foot out). In almost every case, the difference between speech and action is intuitive. Paradoxically, it requires more mental effort to argue for a confusion between them.
Fish affirms the classic neoliberal viewpoint that we should solve all of our speech problems with fresh legislation, and rejects Libertarianism because of the questions it raises. On the contrary, Libertarianism only raises two significant questions: First, "Will we eventually learn the truth?" In the issue he raises, hate speech, the answer is almost positively affirmative. A glance at the last fifty years shows how far we have come already. Second, "Can we afford to wait?" This question is much harder, but, as Fish mentions, my answer is in his neoliberal alternative. To see if we prefer Freedom of Speech, we have only to look at the past and see times when the government would have liked to solve its problems by limiting it. The Pentagon Papers case comes to mind, as well as the "McCarthy era" of viewpoint discrimination. Freedom of Speech was the only protection against the government in these cases. And these are not, as Fish would like to claim, "slippery-slope" hypothetical situations, but real situations where freedom was unnecessarily restricted. It is interesting that Fish uses a minority rights issue like hate speech as an example, for what he proposes is nothing other than to throw the fate of the minority to the whims of the majority (this is, after all, a representative government). In the end, I would prefer to risk obnoxious speech by private citizens instead of government over-restriction and tyranny of the majority.
Fish's argument rests on a single definition: Free Speech. He claims that this freedom is created only by restrictions on it. On the contrary, Free Speech is the lack of restrictions. I would not claim that speech is now without restriction, but only that the restrictions are so few and so narrow that Free Speech really does exist. Beyond this definition, Fish gives a poor solution. He says that politicizing is a problem, so why hand control of speech to the politicians? He thinks Free Speech is a tool used against minorities, so why hand control of it to the majority? I acknowledge that we do not live in the best of all possible worlds, but I can not understand Fish's determination to destroy what good we have.
Dear Readers,
Along with your regular comments, I was wondering if you could help me out by suggesting a better definition of "speech" that would clearly and concisely separate it from action.
I could not find "There's No Such Thing as Free Speech . . . And It's a Good Thing Too" posted anywhere on the internet (which is why I quoted so much), but I did find an interview he did about it.
Extraneous:
An interesting article by Stanley Fish related to my last post.
Thursday, November 1, 2007
Fighting the Establishment
"Congress shall make no law respecting an establishment of religion (the establishment clause), or prohibiting the free exercise thereof (the free exercise clause); or abridging the freedom of speech."
A high school graduate named Erica Corder recently made news when she had her diploma withheld because her valedictorian speech included the Christian gospel message. She had presented the speech to administrators before the graduation ceremony, but she omitted the evangelism because she knew that the school would not approve. Doubtlessly, Corder broke a reasonable school rule by changing her speech at the last minute, but the issue is that the school would not have approved the speech even if she had been honest about it. The school admitted this by insisting that she write in an apology email, "had I asked ahead of time, I would not have been allowed to say what I did." Apparently, her school was afraid that her speech would violate the establishment clause of the First Amendment. As one video blogger put it, "once the schools start pre-approving what [students] say, that's when the Establishment clause of the First Amendment becomes an issue."
Is allowance approval? Or, more to the point, is allowance establishment? If it is, then our government has also established anti-Semitic (National Socialist Party of America v. Village of Skokie)Nazi parades, established cross-burnings (R.A.V. v. City of St. Paul), and established types of child pornography (Ashcroft v. Free Speech Coalition). By these standards, having the government "establish religion" in Corder's high-school auditorium seems pretty tame. Or, maybe allowance is not the same as establishment (by any definition of either term).
This does not give religion free reign in the government (or government free reign in religion). The Supreme Court has found some limits on religious speech based on the establishment clause. In Abington Township School District v. Schempp the court argued strongly that the establishment clause demands a completely neutral stance on religion. The court even argued the case from the perspective of the free exercise clause, saying, "a further reason for neutrality is found in the free exercise clause, which recognizes . . . the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state." The court found that state-initiated religious activities, such as incorporating religion and prayer into curricula, were such a "compulsion." In the more recent case Lee v. Weisman, the court ruled specifically that schools could not have a prayer in graduations. It is important to note that the possible offensiveness of religious speech has little to do with the Supreme Court's rulings. In Lee, Justice Kennedy writes, "People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation." The violation, according to Kennedy, lies in the fact that the students were compelled to go to this government function and hear the prayer. But all of these restrictions (like everything else in the First Amendment) are on the government, not on people like Corder.
The Supreme Court has also clarified when religious speech is allowed. In the case Westside School District v. Mergens, the court decided that Christian clubs should be allowed to meet in school after hours, as other clubs were allowed to. The court did make it clear, however, that "faculty monitors may not participate in any religious meetings." Widmar v. Vincent, an earlier case, made a similar ruling for public universities. And, as an appeals court aptly explained in Chandle v. Siegelman, prayer is allowed when it "is genuinely student-initiated, and not the product of any school policy which actively or surreptitiously encourages it."
As far as the public is concerned, there is no legal difference between religious speech and any other type of speech. The only Constitutional limits are on the government. The only remaining question is whether or not a valedictory speech counts as government sponsored speech (as I already noted, the fact that the speech is allowed does not mean that it is necessarily a government establishment). Public expectations for a valedictorian speech is that it be the valedictorian's, and no one else's. There is a certain expectation of autonomy in the creation of graduation speeches. So, no real blame of content or authorship should be legally placed on the government when they allow the valedictorian to speak their mind, even if it is pre-approved. Thus, Corder's school was wrong for not allowing religious topics in her graduation speech.
Why I Ignored the Lemon Test
Anyone familiar with this Constitutional issue will probably wonder why I completely ignored the Lemon Test in my argument. Here is why:
The Lemon Test was created in Lemon v. Kurtzman. To declare a statute unconstitutional, the court must find the following: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster 'an excessive government entanglement with religion.'" The terms of the test are so vague (how do we quantify "primary effect" and what is "excessive government entanglement?") that I found it more useful to describe cases according to how the justices differed in their application of the test rather than saying, over and over, that the justices simply applied it.
A high school graduate named Erica Corder recently made news when she had her diploma withheld because her valedictorian speech included the Christian gospel message. She had presented the speech to administrators before the graduation ceremony, but she omitted the evangelism because she knew that the school would not approve. Doubtlessly, Corder broke a reasonable school rule by changing her speech at the last minute, but the issue is that the school would not have approved the speech even if she had been honest about it. The school admitted this by insisting that she write in an apology email, "had I asked ahead of time, I would not have been allowed to say what I did." Apparently, her school was afraid that her speech would violate the establishment clause of the First Amendment. As one video blogger put it, "once the schools start pre-approving what [students] say, that's when the Establishment clause of the First Amendment becomes an issue."
Is allowance approval? Or, more to the point, is allowance establishment? If it is, then our government has also established anti-Semitic (National Socialist Party of America v. Village of Skokie)Nazi parades, established cross-burnings (R.A.V. v. City of St. Paul), and established types of child pornography (Ashcroft v. Free Speech Coalition). By these standards, having the government "establish religion" in Corder's high-school auditorium seems pretty tame. Or, maybe allowance is not the same as establishment (by any definition of either term).
This does not give religion free reign in the government (or government free reign in religion). The Supreme Court has found some limits on religious speech based on the establishment clause. In Abington Township School District v. Schempp the court argued strongly that the establishment clause demands a completely neutral stance on religion. The court even argued the case from the perspective of the free exercise clause, saying, "a further reason for neutrality is found in the free exercise clause, which recognizes . . . the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state." The court found that state-initiated religious activities, such as incorporating religion and prayer into curricula, were such a "compulsion." In the more recent case Lee v. Weisman, the court ruled specifically that schools could not have a prayer in graduations. It is important to note that the possible offensiveness of religious speech has little to do with the Supreme Court's rulings. In Lee, Justice Kennedy writes, "People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation." The violation, according to Kennedy, lies in the fact that the students were compelled to go to this government function and hear the prayer. But all of these restrictions (like everything else in the First Amendment) are on the government, not on people like Corder.
The Supreme Court has also clarified when religious speech is allowed. In the case Westside School District v. Mergens, the court decided that Christian clubs should be allowed to meet in school after hours, as other clubs were allowed to. The court did make it clear, however, that "faculty monitors may not participate in any religious meetings." Widmar v. Vincent, an earlier case, made a similar ruling for public universities. And, as an appeals court aptly explained in Chandle v. Siegelman, prayer is allowed when it "is genuinely student-initiated, and not the product of any school policy which actively or surreptitiously encourages it."
As far as the public is concerned, there is no legal difference between religious speech and any other type of speech. The only Constitutional limits are on the government. The only remaining question is whether or not a valedictory speech counts as government sponsored speech (as I already noted, the fact that the speech is allowed does not mean that it is necessarily a government establishment). Public expectations for a valedictorian speech is that it be the valedictorian's, and no one else's. There is a certain expectation of autonomy in the creation of graduation speeches. So, no real blame of content or authorship should be legally placed on the government when they allow the valedictorian to speak their mind, even if it is pre-approved. Thus, Corder's school was wrong for not allowing religious topics in her graduation speech.
Why I Ignored the Lemon Test
Anyone familiar with this Constitutional issue will probably wonder why I completely ignored the Lemon Test in my argument. Here is why:
The Lemon Test was created in Lemon v. Kurtzman. To declare a statute unconstitutional, the court must find the following: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster 'an excessive government entanglement with religion.'" The terms of the test are so vague (how do we quantify "primary effect" and what is "excessive government entanglement?") that I found it more useful to describe cases according to how the justices differed in their application of the test rather than saying, over and over, that the justices simply applied it.
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