Tag Archives: Freedom of Expression

#126: Equity and Religion

This is mark Joseph “young” blog entry #126, on the subject of Equity and Religion.

I saw an article online, from the St. Louis Post-Dispatch, entitled Amendment 3:  A Stealth Attack on Religious Freedom  The title intrigued me, since I had no notion of what was happening in Missouri, so I skimmed the piece–and was rather surprised at what I found.  It struck me that the author did not have a very good grasp on exactly what “religious liberty” is, so I decided to pursue the matter here.

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The purpose of “Amendment 3”, apparently Missouri’s version of what we in New Jersey now call a Public Question, is to create a cigarette tax and use the money to fund early childhood education.  The tobacco industry has not made a lot of noise about it, at least directly–they have learned that people who smoke are very unlikely to stop simply because the amount of money they burn increases.  It seems like a positive idea, that if people are going to kill themselves slowly at least they can help fund the education of our children.

At issue is text that says the disbursement of funds raised will not be limited or prohibited by the State of Missouri Constitution’s “Prohibition of public aid for religious purposes and institutions” clause.  That means that if whatever method of distributing the money to help with preschool education would otherwise mean that a Lutheran- or Baptist- or Muslim or Jewish-run facility would qualify for some of that money, that facility is not automatically disqualified simply because it is administered by a church, mosque, synagogue, or other religious organization.  Opponents of the measure say that this is an attempt to bring funding of religious organizations in through a side door, and so force people to pay for religious education with public money.

It is not at all clear that that is what this is, and in fact from the description it sounds rather as if it is an attempt, not to show religious preference, but in fact precisely not to show it.  It is saying that the fact that a group of people trying to provide early childhood education happen to be believers of a particular religious philosophy will not disqualify them from being funded by this program–exactly what freedom of religion means, that we will not discriminate against you on the basis of what you believe.  As long as the program is administered impartially, part of that impartiality has to be that a program is not disqualified based on religious connections.

That is important for multiple reasons.

Social programs and particularly education have always been spearheaded in the Anglo-Saxon world by Christians and Christian organizations.  Our Ivy League colleges and many other schools and universities were originally founded by Christians to educate doctors, lawyers, and ministers.  Christians were the first to attempt to help the poor in England through education of their children.  In America, many settlers would arrive in a new location and build a church and a school as the fundamental institutions of society.  Meanwhile, the Jews have long put a heavy emphasis on educating their children, going back more than centuries, possibly millennia–a Hebrew boy became a man by proving he could read from the Torah, at least as early as the first century.  Religious people have been proponents of education, and education for all, even when the approved thinking was that education was for the privileged and powerful, to maintain their power and privilege.

Encouraging a group to do what we want them to do and they want to do anyway is good politics.

Besides, if the objectors are saying that it is a violation of the principle of freedom of religion to fund any organization that promotes a religious position, they’re going to have to stop funding public education as well.  St. Louis is a particularly interesting case, as it is the home of the headquarters of the Missouri Synod Lutheran Church–not the most conservative Lutheran group, but conservative enough that they honestly believe in a six-day creation.  You might disagree; I don’t know that I agree.  However, whenever the State of Missouri uses its collected tax money to teach the scientific views about the Big Bang Theory and the Theory of Evolution, it is spending money to promote a religious idea–the idea that the Missouri Synod Lutheran belief in six-day creation is wrong.  Our objectors say that they do not want their tax money spent to fund organizations that will promote religious notions with which they disagree; now they know how their Lutheran neighbors feel.

The only way to treat religious people and their organizations fairly is to make the question of religious belief irrelevant to the question of funding social efforts.  Otherwise, it would be the same as saying that the government will not fund a day care run by a black man, or a preschool run by a woman.  Not discriminating on the basis of religion means that religious views are not a factor in the decision.  That’s what the amendment is saying.

How those programs are going to work has not yet been determined.  The simple way, though, is for the government to provide scholarships or tuition reimbursement for needy families trying to send their children to whatever preschools are available.  Some have argued that this kind of “voucher” system unconstitutionally funds religious schools because the parents can give the money to those schools and the government winds up paying the church, as it were.  However, to do otherwise unconstitutionally discriminates against religious groups, requiring that parents send their children only to schools which reject religious views entirely–itself a religious view–or forego the government assistance they cannot afford to be without.

It would be akin to refusing to provide food stamps to any family that says grace before meals.

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#120: Giving Offense

This is mark Joseph “young” blog entry #120, on the subject of Giving Offense.

A couple days ago I was asked whether I had again offended a Specifically Named Person by writing another piece on homosexuality.

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I had no idea how to reply to this.  I was unaware that I had offended this individual previously by my writing; I have no reason to believe he identifies as homosexual.  I obviously know that some people in my circle of relationships disagree with me on any subject you care to name, and this is one on which there are some significant disagreements–but I don’t keep track of who holds what positions on which issues, so I could not have told you that he disagreed with my views on this one.  It does not surprise me if he does; I know he disagrees with me on some issues, but then, everyone disagrees with everyone on some issues.  As the anonymous wise Quaker is quoted as having said to his closest friend, “Everyone’s a little queer ‘cept me and thee, and sometimes I’m not so sure of thee.”  I know of no one with whom I am in complete agreement about everything.  That does not bother me.  After all, I know that everyone is wrong about something, and I know that that includes me, but it also includes everyone who disagrees with me.  The trick is figuring out where you’re wrong and where you’re right, and not being more certain of it than you can justify.

What bothers me is that he would be offended by my opinion, or perhaps by my expression of my opinion.

I have probably written about tolerance before.  Being tolerant does not mean not caring about an issue.  It means having a strong opinion but treating others respectfully who hold a different opinion.  Many people who are not religious believe that they are tolerant when they are actually indifferent and condescending.  That is, their attitude is “all religious ideas are nonsense, so it really does not matter what nonsense you believe.”  However, changes in society are forcing these people to recognize that this is not true–that it really does matter what one believes about God, because that in turn controls what one believes about many practical issues, such as abortion, homosexuality, and the “norms” of society.  The criticism is that some religious people–those who disagree with the current attitudes on specific issues–are intolerant; the truth is that those who hold to those current attitudes are proving to be less tolerant.

Being tolerant does not mean that we all agree.  It means that we agree to disagree amicably, and to allow each other to hold differing opinions, to live by them as our own beliefs dictate, and to discuss them openly.  That’s all First Amendment:  the absolute protection of religious and political opinion.  Today those who hold certain viewpoints also hold the opinion that to disagree with those viewpoints ought to be criminal.  We encounter it in the homosexual marriage debate; it is rampant in the environmental field; it appears in issues related to reproductive choice.  If you do not agree with the approved opinion (whether or not it is held by the majority), you will not be tolerated.

On the specific issue of homosexuality, I agree that homosexuality is “natural”; it is as natural as heroin addiction:  you can encourage it, and once you’ve got it you probably can never really be fully rid of it.  There is sufficient evidence that homosexuality is not fixed in the genes, but involves environmental factors and choices on some level.  The position that the unborn are as human as their mothers and deserve equal protection equal to that extended to their mothers–and probably then some, as they are the more vulnerable class–is certainly defensible.  The issue of whether global warming is heading us into an environmental disaster, or whether it is instead staving off potentially disastrous global cooling and an ice age, can also be debated.

I hold some opinions which are apparently minority viewpoints, but I hold them honestly because of what I consider solid rational bases.  To say “I am sorry if that offends you” is not really an apology; it is more an expression of compassion for your disability, that you are such a person as would be offended by the expression of an opinion with which you disagree.  I think better of you than that.  I respect you and your opinions, even, or perhaps particularly, where I disagree.  I am willing to hear your evidence and your arguments.  I expect only the same courtesy in response.

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#114: Saint Teresa, Pedophile Priests, and Miracles

This is mark Joseph “young” blog entry #114, on the subject of Saint Teresa, Pedophile Priests, and Miracles.

You probably have already heard that the woman known to most of us as Mother Teresa is now officially Saint Teresa of Calcutta.

The first I saw it was in an article critical of the Roman Catholic Church, in the Salt Lake Tribune.  My initial glance at the piece noted that it somehow connected the canonization of this world-respected woman to the issue of pedophilia among the priesthood, and I thought it was going to say that an organization which so poorly handled that situation had no business making people saints.  I was musing on that, but I hate it when people criticize my articles without having read them, so I went back to read it completely and discovered that his complaint, while I think just as wrong-headed, was much more subtle.

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It is of course rather easy to criticize the church for its handling of these pedophile cases, but difficult to see from their perspective.  After all, they’re older and larger than most countries, consider their priests something like diplomatic envoys to everywhere in the world, and have a long history of handling their own problems internally.  Add to that the necessity of balancing justice with mercy, the concerns for the sinners as much as for the victims, and the awareness that the quickest way for an ordinary parishoner to remove an unwanted priest is to make sexual allegations against him, and you’ve got a very difficult situation.  It is thus easy to say that they handled it poorly–but not so simple to be certain that any of us would have handled it better.  That, though, was not what the article was addressing.

It is also a mistake to think that the Roman Catholic Church “makes” people Saints.  Canonization is rather more a process of identifying those who are.  There are few people in the world, perhaps of any faith, who would say that Teresa was not a saint.  She certainly fit the standards most Protestants hold:  she loved Jesus so much that she abandoned all possibility for a “normal” comfortable western life in order to bring the love of God to some of the most impoverished and spiritually needy people on earth.  Many ordinary Catholics were pressing for the Vatican to say officially what they believed unofficially.  The problem was that the Roman Catholic canonization process has a requirement that to be recognized officially as a Capital-S Saint an individual must have performed miracles.  At least two must be certified by Vatican investigators.

As one of my Protestant friends said, she should be credited with the miracle of getting funding for so unglamorous a work, and probably also for doing so much with what she had.  Those, though, are not the types of miracles considered; there has to be an undeniable supernatural element involved.  The author of the critical article is unimpressed with the two that they certified, but his argument is rather that miracles do not happen, and the events cited in support of her canonization were not miracles.  He then argues, seemingly, that if miracles really did happen, if God really did intervene in the world, then certainly God Himself would have acted to prevent those priests from abusing those children.  No loving father could have permitted that kind of treatment of his own children; how can the Church assert that God is a loving Father, if that God did not intervene on behalf of these victims?

We could get into a very involved conversation about why the writer supposes the conduct of these priests to have been “wrong”.  Certainly it was wrong by the standards of the Roman Catholic Church.  However, the Marquis de Sade wrote some very compelling arguments in moral philosophy in which he asserted that whatever exists is right.  On that basis he claimed that because men were stronger than women, whatever a man chose to do to a woman was morally right simply because nature made the man capable of doing it.  The same argument would apply to this situation, that because the priests were able by whatever means to rape these children, their ability to do so is sufficient justification for their actions.  I certainly disagree because, like the Roman Catholic Church, I believe that God has called us to a different moral philosophy.  The question is, on what basis does our anti-God critic disagree?  If he asserts, as he does, that there is no God, why does he suppose that it is wrong for adults to engage in sexual acts with children?  It seems to be his personal preference; the Marquis de Sade would have disagreed, as would at least some of the men who do this.  To say that something is morally wrong presupposes that that statement has meaning.  We fall back on “human rights”, but the only reason Jefferson and the founders of America could speak of such rights is that they believed such rights were conferred (endowed) upon every individual by the God who made us.  No, they did not all believe in the Christian God (many were Deists), but they did found their moral philosophy on a divine origin.

However, let us agree that the conduct of those priests was heinous.  We have a solid foundation for holding that position, even if the writer who raises it does not.  The question is, why did God not stop them?

It is said that during the American Civil War someone from Europe visited President Lincoln at the White House.  During his visit, he asked whether it were really true that the American press was completely free of government control–something unimaginable in Europe at that time.  In answer, Lincoln handed his guest that day’s newspaper, whose lead story was denigrating the way the President was handling the war.  It was obvious that such an article could not have been written if the publisher had any thought of the government taking action against his paper for it.

If God is able to work miracles, why does He not miraculously silence critics like the op-ed piece in the Salt Lake Tribune?

Perhaps the writer thinks that even God would not interfere with the freedom of the press in America.  Why not?  There is nothing particular about the choice to write something which is offensive to God that would make it less objectionable than the choice to do something which is offensive to God.  God could perhaps have prevented many atrocities–the development of the atomic bombs that devastated two Japanese cities, the rise of the regime which exterminated nearly six million Jews and even more Poles plus many other peoples, and we could fill the rest of this article with such acts.  Yet these are all choices made by men, and just as God chooses not to prevent one writer from criticizing Him in the Salt Lake Tribune, so too He has not prevented billions of other hurtful actions by everyone in the world.  He allows us to make our own choices, and to hurt and be hurt by those choices.  If he prevented all of them, there would be no freedoms whatsoever.

Two footnotes should be put to this.

The first is that we do not know and indeed cannot know whether God has limited human wickedness and disaster.  We can imagine horrors that never happened.  The Cold War between the United States and the Soviet Union never “went hot” into a nuclear battle despite the many fictional scenarios describing how it might have happened.  We do not know whether God prevented nuclear war, or indeed whether He will do so in the future; we only know that it did not happen.  Our perspective of the “bad” that happens in this world lacks perspective because, apart from horror stories, we measure it against itself.  Be assured, though, that if the worst thing that ever happened in the world was the occasional hangnail, someone would be asking how God could possibly allow the suffering that is the hangnail.  We complain of the worst wickedness in the world, but do not know what might have been or whether God saved us from something worse than that.

The second is that God, Who is the only possible foundation for any supposed moral law to which we could hold anyone accountable, promises that He is ultimately fair and will judge everyone.  He has made it His responsibility to see to it that everyone who has caused any harm will be recompensed an equal amount of harm, and anyone who has been harmed will be compensated an appropriate amount in reparations, so that all wrongs ultimately are put right.  The writer of the article does not want there to be ultimate justice, but present intervention.  However, I expect were we to ask if what He wants is for God to remove from the world the power to choose what we do and have our choices affect each other, he would object to that as well.  There will be ultimate justice, and may God have mercy on us all.  Meanwhile, we are given freedom to act in ways that are either beneficial (as Saint Teresa) or baneful (as the priests), so that we may then be judged.

How there can be mercy and justice at the same time is something I have addressed elsewhere, and is much more than this article can include.  It is perhaps the problem that the Catholic Church has in handling its errant priests.  The bishops are not God, and neither are we, and we all do the best we can, which often is not as good as we might hope.  We all also fail, hurt others, and need forgiveness and correction.  God offers that, and that is the true miracle.

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#63: Equal Protection When Boy Meets Girl

This is mark Joseph “young” blog entry #63, on the subject of Equal Protection When Boy Meets Girl.

United States Supreme Court Justice Ruth Bader Ginsburg does not like the Roe v. Wade decision.

To many, that will sound like nonsense.  Ginsburg is the anchor of abortion rights on the United States Supreme Court, and Roe the seminal case which recognized, some would say created, such a right.  Yet Ginsburg does not disagree that there is such a right; she disagrees regarding the basis of that right, and thus with the reasoning of Roe which is its foundation.

Roe v. Wade is in essence a Right to Privacy case.  Beginning with Griswold v. Connecticutt, in which the court found that the state could not criminalize the act of teaching couples how to use contraceptives in the privacy of their own bedroom, the court inferred that the First Amendment protections of freedom of expression, Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protection against self-incrimination, implied a right to keep one’s personal matters private.  There were several intervening cases which extended that, and there have been others arising since Roe, but in Roe the argument was that the decision to have an abortion was a medical decision between a woman and her doctor, and as such was a private matter in which the government should not interfere without a very compelling interest.

Ginsburg disagrees.  That argument, she claims, makes a private and personal decision a matter to be discussed with a doctor–a paternalistic oversight that according to Ginsburg violates the fundamental right at stake.  She claims that a woman’s decision should be autonomous, something she decides without involving anyone she does not wish to involve.  She makes it an Equal Protection right, covered largely by the fifth through tenth amendments.  Her assertion is that a woman should have the autonomous right to decide whether to bear a child, unimpeded by any considerations including medical ones, because it is solely the woman’s problem.

Ginberg’s reasoning presents serious challenges for those who oppose abortion.  If her line were adopted, current efforts to regulate abortion providers and facilities would be unconstitutional.  As the decision stands, if abortion is a privacy right as a medical decision on the advice of a medical professional, it is completely reasonable for reasonable regulations of the medical profession to restrict access to abortions based on the government’s regulation of health care.  If it is an autonomous right under equal protection, then a woman in theory should be able to have a doctor or anyone she chooses perform one in the privacy of her own bedroom without any government involvement at all.  Yet Ginsburg’s position suffers from some other problems.  She believes she is defending the concept that a woman should be treated exactly as a man would be in the same circumstance, but (apart from the fact that men would not be in exactly the same circumstance) the treatment of men in this circumstance is already worse than the treatment of women, viewed from the perspective of individual autonomy and equal protection.

Ruth Bader Ginsburg official United States Supreme Court portrait.
Ruth Bader Ginsburg official United States Supreme Court portrait.

Let’s look at the situation:  boy meets girl.  We’ll call our girl Ruth, for Justice Ginsburg, and we’ll name the boy Tony, in memorium of the recent passing of her good friend, colleague, and adversary Justice Antonin Scalia.

Ruth and Tony meet, maybe at work, maybe at a party, maybe at school or in the neighborhood.  They like each other, and start seeing each other.  They find themselves attracted to each other.  Human physiology being designed to promote reproduction, at some point they have desires to have sex.  At this point they are just about equal, as far as reproductive rights are concerned.  Some argue that Tony is disadvantaged in that his drives are stronger than Ruth’s, but there aren’t many ways to test that.  Ruth might have more resistance to those drives because the consequences are more direct for her, but in essence it is within the power of each them them to choose, autonomously, not to engage in sex.  It is also within their power to choose, jointly, to risk a pregnancy.

Yes, Tony could rape Ruth; Tony could coerce Ruth by some other inducement.  Women are raped fairly often, usually by men, sometimes by women.  Men are also raped, by men and sometimes by women, but considerably less often–although more often than reported.  Men are more embarrassed about being raped than women are, and so less likely to report it; and they are taken less seriously when they do, partly because some people think a man can’t really be raped by a woman, and partly because men who have never been raped by a woman somehow think they would enjoy it.  Rape, though, is a separate issue:  anyone who has been raped has had rights fundamentally violated, quite apart from the problem of potential pregnancy.

If Ruth and Tony agree to engage in sex, suddenly the entire picture changes:  they no longer have equal reproductive rights.  A significant part of that is simply technological.  Either of them could have an operation rendering him or her permanently infertile, which is generally a drastic step few want to take and is a considerably more expensive and difficult (but ultimately more reliable) procedure for Ruth than for Tony.  Barring that, though, Tony is limited to the question of whether or not to use a condom–a prophylactic device with a rather high failure rate.  Ruth’s equivalent, a diaphram, is a bit more difficult to get (must be fitted by a gynecologist) but considerably more effective; she also has several other options.  Usually she would use spermicide (sometimes known as “foam”) with a diaphram, but she can also use hormone treatments, usually in pill form but sometimes as implants, that disrupt her ovulation cycle.  All of these options have varying probabilities of preventing conception; there are other options.  Intra-uterine devices (IUDs) usually reduce the chance of conception but also prevent or sometimes disrupt implantation, causing a spontaneous abortion–what in popular jargon is called a “miscarriage”, but at so early a stage that pregnancy was not suspected.  In all these ways, all the reproductive rights are on Ruth’s side:  if she chooses not to become pregnant, she has an arsenal of ways to prevent it.

However, young lovers are often careless.  Birth control is so unromantic, so non-spontaneous.  The young suffer from the illusion of invulnerability, that they are the heroes of their own stories and everything is going to work according to their expectations.  People have sex and don’t get pregnant; some couples try for unsuccessful years to have a baby.  A pregnancy is often a surprise, even for those who want it.  People take the risk, and Ruth and Tony might lose.  So now there is a baby on the way, as they say, and again Ruth’s reproductive rights are more than equal to Tony’s.  She can choose to carry the child to term, or to have an abortion.  He has no say in the matter, even if he is her husband.  She might include him in the decision, but it is her decision; she does not even need to inform him that there is a decision.  She can end the story right here.  He cannot.  He has no say about his own reproductive rights.  He cannot say, “I do not want to be the father of a child; terminate it.”  Nor can he say, “I want this baby, keep it.”  He does not, in that regard, have equal protection.

Maybe he does not care; maybe he figures it is her problem.  However, it is not just her problem–it is also his problem.  The inequities are not yet quite done.  If Ruth decides not to have an abortion–exercising her reproductive rights and overriding his–the child is born.  At that moment Ruth has yet another choice:  she can keep the child, committing herself to the difficulties and expenses of raising it, or she can absolve herself of all further responsibility, agreeing never to see the child again, by putting it up for adoption.  I do not want to minimize the agony of that choice, but it is her choice–it is not his choice, and he has no say in the matter.  His reproductive rights are not equally protected.

In most cases, if she chooses to surrender the child for adoption, he has no say in the matter; he cannot say it is his child and he wants to keep it.  That, though, is only half the problem.  If she decides that she wants to keep the child, she can sue him for child support–and indeed, if Ruth is poor enough that she files for public assistance from the state, most states will find Tony and force him to make child support payments, and jail him if he fails to do so.  It is his responsibility to support the child if she says it is.  He can claim that it is not his child–the tests can be expensive, but there is an avenue to avoid false claims–but we already agreed that it is his, so he is going to have to support it.  She had a choice; he has none.

So by all means, let’s think of abortion as an Equal Protection issue.  Men are not protected in this nearly as well as women.  A lot of things would have to change to get there.

In addition to web log posts with the Abortion, Discrimination, and Health Care tags, see also the articles Why Shouldn’t You Have Sex If You Aren’t Married?, and Was John Brown a Hero or a Villain?

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#54: Nudity as Free Speech

This is mark Joseph “young” blog entry #54, on the subject of Nudity as Free Speech.

If the thirteenth century histories are to be believed, it is a practice that has roots back near a thousand years to Lady Godiva, who about two centuries prior purportedly rode her horse down the streets of Coventry clothed only in her long hair, to protest the heavy taxes assessed on the local population by the local Earl of Mercia, Leofric–who happens to have been her husband.  The technique has been used in variations since, and has more recently become a legal issue:  can public nudity be protected as a form of free speech?

Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum
Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum

On April 17th, 2012, a frequent air traveler named John Brennan (not to be confused with the Central Intelligence Agency director of the same name) was stopped at a Transportation Safety Administration (TSA) checkpoint in Portland, Oregon.  He had declined to pass through the scanners which would have produced an image of his naked body under his clothing in favor of a metal detector and pat-down.  However, the pat-down detected nitrates from his clothing–a substance found in some popular explosives, as well as in fertilizer, bacon, some hand lotions, and many other products.  This was certain to be a problem, so Brennan responded, in protest, by stripping naked at the checkpoint in full view of other passengers so that it could be plainly seen that he did not have a bomb.

He was arrested for indecent exposure.  It was a weak case–the applicable indecent exposure law in that part of Oregon, home of the “World Naked Bike Race”, only forbade having sexual contact in public and disrobing “with the intent of arousing sexual desire”, both conditions plainly absent here.  However, Brennan claimed that his act of disrobing was a form of protected free speech.  There is precedent for the notion that actions can be classed as speech or expression under the First Amendment, stemming from a 1971 case, Cohen v. California (403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971)), in which the defendant was convicted of “offensive conduct”, defined as including “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” for wearing a jacket bearing an obscene anti-war slogan to a protest outside a municipal courthouse.  The Supreme Court overturned the conviction, asserting that emotive speech intended to get attention is protected speech.  This subsequently gave rise to Holder v. Humanitarian Law Project (561 U.S. 1, 130 S.Ct. 2705 (2010)), in which actions which were aimed at providing humanitarian aid to terrorist groups were deemed reasonably forbidden in the name of national security, but which classed such actions as freedom of expression and declared that laws which are otherwise about conduct face “more rigorous scrutiny” (greater than the ordinary “intermediate scrutiny” but not as severe as the nearly always fatal “strict scrutiny”) under facts in which the conduct is part of political speech.  The judge in Brennan’s case agreed that his actions were protected political protest, and found him not guilty.

Not willing to let it rest there, the TSA fined Brennan one thousand dollars for “interfering with screening”.  The fine was upheld, although it was reduced by half, in an administrative hearing under the auspices of an “Administrative Law Judge” whose qualifications were that he was a United States Coast Guard officer working for the Department of Homeland Security (DHS).  The extended appeals process for such an “administrative” violation took over a year to reach the head of the department before it could be appealed to a “real” court, the 9th Circuit Federal Court of Appeals.  As of November 11, 2013, an appeal was filed with that court asking that the fine be voided due to several constitutional issues (including the vagueness of TSA regulations), and specifically that his action was constitutionally protected speech.  As recently as October that case was still pending, as the parties await the court’s decision on whether to hear oral arguments or base their decision on the filed papers.

Meanwhile, back in Oregon, Matthew T. Mglej is citing this case in a similar unrelated case.  On May 23rd, 2014, Mglej set up space in front of the federal court building in Portland, posting a few signs, then stripped naked and played the violin to call attention to his cause, a desire for greater transparency in government.  The police arrested him for public indecency (this law makes it “unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex”) but later released him.  On January 20th, 2015, he filed suit in federal court on a variety of claims including unlawful arrest and violation of his First Amendment right.  This past month U. S. District Judge Michael W. Mosman disagreed, dismissing the suit; Mglej’s nudity was not protected speech, he asserted.

However, as Harvard Constitutional Law Professor Noah Feldman observes (in print as The naked truth about the First Amendment, found online as Protesting Nude in Portland Should Be Protected), the basis for the dismissal is at best dubious.  Mosman asserted that the nudity did not advance the message, that an impartial observer would not have understood how the message and the nudity were connected.  This, as Feldman rightly observes, makes the judge the arbiter of style, as it were, assessing whether Mglej’s speech was effective in achieving its purpose.  The First Amendment does not require that the speaker be articulate, nor give anyone the right to judge whether the message could have been conveyed a different way.  Mglej was attempting to communicate something by his nakedness; does the fact that most people failed to understand what he was attempting to communicate negate his right to attempt to say it?

Besides, part of the message is the medium, and part of the medium is its function in drawing attention to itself and through itself to the message.  Large signs with hot pink lettering do not communicate the message more clearly, they only are more eye-catching; rock bands playing at evangelistic rallies might or might not convey the message as well as the speakers who follow them, but they do draw a crowd–a fact that was not lost on Salvation Army founders William and Catherine Booth, who took brass bands into the streets to draw crowds to hear the message.  Whether or not Mglej’s nakedness clearly conveyed the message of the need for transparency in government, it certainly got the attention of the crowd to hear it.  Absent that detail, it is doubtful that you would be reading about him here, now.  The nudity was as much a part of the message as the violin:  it was the neon sign that caught the attention of passersby to hear the message.

On the other hand, as one city attorney observed, anyone arrested for public nudity could claim that his state of undress was a political protest.  It is easy to imagine that people who subscribe to “nudism” might make it a practice to go about their daily chores completely naked, and assert that they are doing so in protest of the very laws they are violating.  How is that to be resolved?  Can one protest such laws by being naked?

This argument could be pushed to the absurd.  Someone robbing a bank could claim that they are doing so in protest of the laws protecting personal property, or of the unfair advantages accorded to those who own the banks.  Many bombers are already acting in protest, at least as far back as the Viet Nam War protesters, and many rioters become swept up into violent protests that were fundamentally about a reaction against the system.  If breaking one law can be protected speech, can the same be true of all these other laws?

It will be answered that these other crimes are dangerous; people get hurt.  The injury might be physical; it might be economic.  It is clear that we need to protect ourselves from such actions, lest we become their victims, and indeed we need to prevent these actions as much as possible for the sake of others who might be injured by them.  Inherent in that response, though, is the presumption that no one is “really” harmed by public displays of nudity, that those who object are simply being prudish, Victorian, censorial, trying to run the lives of others by requiring them to wear clothing and conform to public decency standards.  The point can be argued.  Those who oppose public nudity believe that there is harm, that for example children should be shielded from seeing naked adults, women should not be forced to look at naked men, and that people exposed to such sights may genuinely be harmed, suffering psychological injury of some type.  It is not a harmless nor a victimless crime.  If it were, it would never have been illegal in the first place–someone thought it was injurious to someone, so laws were passed to prevent it.

You might object that our prudish ancestors had a lot of misguided notions about right and wrong and about conduct that was deemed harmful to others, and that in our enlightened age we can dispense with such nonsense.  It is a point that can be debated–but the fact that it can be debated means that there is at least some merit to the claim that there is real harm; and if there is a basis for a claim of real harm, there is at least potentially reason to make such conduct unlawful.  That in turn pushes us into the quandary:  at what point does harmful conduct become protected self-expression?  If such nudity is in fact harmful to at least some ordinary people, then it ought to be as illegal as robbing banks and bombing buildings, and breaking the law should not be legal merely because it is self-expression.  If it is not harmful to anyone but perhaps a few overly sensitive individuals, then it ought not be illegal and we should find less intrusive means of protecting those weaker citizens who might be impacted by it.

Certainly there is a place for civil disobedience in self-expression, for violating laws in order to make a point.  As we previously noted, the Supreme Court has ruled that burning a cross in the yard of a black family is indeed protected speech, but the perpetrators might still be convicted of arson, trespass, and disorderly conduct.  The individual who chooses civil disobedience as a mode of protest is inherently agreeing to accept the lawful penalty for breaking the law, as part of his choice.  Henry David Thoreau spent a night in jail for refusing to pay a tax that supported the continuation of slavery; he understood that his disobedience to the law meant that he would be imprisoned, and took that as part of his protest.  It is not unreasonable to conclude that Mglej is permitted to make his statement, but that he still must stand trial for violating the law in doing so, just as any protesting bomber would.  That, though, does not seem to be what the courts are saying, and what they are saying seems to be that this particular law does not matter because violating it does not hurt anyone.  We are going to have to settle that issue, one way or the other, and decide whether public nudity should be forbidden or permitted.

Zymurgy’s Law of Evolving Dynamic Systems states, “If you open a can of worms, the only way to re-can them is to use a bigger can.”  We’ve got one of those here, for certain.

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#16: The New First Amendment Speech Delimiter

This is mark Joseph “young” blog entry #16, on the subject of The New First Amendment Speech Delimiter.

The town of Gilbert, Arizona, recently had a local ordinance struck down by the United States Supreme Court in the case Reed v. Town of Gilbert, 576 U.S. ___ (2015).  Justice Thomas’ majority opinion was joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Alito, and Sotamayer, and there were three concurring opinions, written by Alito (and joined by Kennedy and Sotamayer), Justice Kagan (joined by Justices Ginsberg and Bryer), and Breyer.  All nine justices agreed that the law was unconstitutional on its face, Kagan saying that it failed even “the laugh test”.

Courtesy Google Maps

We might consider this odd, since the appeal came from the 9th Circuit Court of Appeals, which had upheld the ordinance saying it saw no problem with it.  That is significant, because the majority opinion inherently alters the face of first amendment law, although Kagan’s concurring opinion disagrees with that alteration–yet apparently the circuit court would not have been right anyway, which is part of the confusion here.

The problem arose because of a sign ordinance.  It is fairly standard for communities to regulate the posting of signs, both for safety and for “beautification”, the overall appearance of the community, and to distinguish signs into categories.  Overall, this particular ordinance stated that signs may not be posted without a permit, then gave twenty-three categories of signs that were exempt from the permit requirement, but gave different standards for different categories.  One of the categories is “Temporary Directional Signs Relating to a Qualifying Event”, loosely defined as public meetings of a non-profit organization, and the restrictions on these are rather strict.  Two other categories are discussed in Roberts’ opinion, “Political Signs”, which are intended to influence an election, and “Ideological Signs” which are intended to influence public opinion more generally.  The limitations on such signs included the maximum size, where they might be posted, when they could be posted, and when they would have to be removed.

The plaintiff and appellant in the case is a church whose place of meeting was constantly changing.  It was the practice of the church to post signs announcing the location of the Sunday morning service on Saturday morning and remove them around noon on Sunday.  The code, however, stated that such “Temporary Directional Signs” could not be posted more than twelve hours prior to the event, must have the time and date on them, and had to be removed within an hour after the event–and the town code enforcement agency fined the church twice for non-compliance with these regulations.  Trying and failing to reach some kind of accommodation on the matter, the church took it to court, and was twice rebuffed before receiving Certiorari, that is, having the Supreme Court agree to hear the matter.

In the first paragraph the opinion says that the categorization of the signs is “content based” and therefore will not withstand “strict scrutiny”.  This was where the Court differed from the lower level decisions, which concluded that the distinctions were “content neutral” and therefore faced only “intermediate scrutiny”.

At issue is the circumstances under which the government can regulate speech, and although here it is about speech in the form of posted signs, the opinion is such that it would apply to speech in all media.  In Constitutional Law, laws which might impinge on constitutionally-protected rights are subject to “scrutiny” of different levels.  “Intermediate scrutiny” in essence means that there has to be a definable government interest and the law must address that interest in a fair and balanced way that does not impinge unreasonably upon individual rights.  “Strict scrutiny” means that the government must demonstrate that it has a compelling interest in regulating the conduct, and the means of regulation is the least intrusive means of so regulating it.  Very few laws survive strict scrutiny once it is invoked.  That is, in fact, the reason for the Hobby Lobby-related cases:  a Constitutionally protected right was threatened in a way that forced the government to prove that its objectives were compelling and there was not a less-intrusive way to achieve them.

Traditionally in free speech cases the distinction has been made between “content-neutral” laws, which receive intermediate scrutiny, and “content-based” laws, which receive strict scrutiny.  Content-based laws are primary those that attempt to quash the expression of a particular opinion or which reveal specific information; if the government wants to block the publication of a particular article it has to prove that it has a legitimate compelling government interest in doing so and cannot achieve that objective otherwise.  An example would be a law that criminalizes the publication of classified documents, in which the government argues that such publication threatens national security.  It also extends to block laws barring discussion of particular topics–if the government wants to ban discussion of the commercial use of nuclear power, it thereby interferes with the marketplace of ideas impermissibly.  On the other hand, if a municipality wants to regulate how big signs can be, where they can be posted, and similar matters not related to what the sign is saying, that’s content-neutral, and always has been.

What the Court did in Gilbert, though, was expand the definition of “content-based”.  It said that because the the ordinance regulated signs based on the nature of the information they communicated–e.g., giving directions to temporary meeting locations, promoting candidates for election–and that the regulations distinguished different kinds of signs for different restrictions, it was inherently “content-based”, and therefore faced strict scrutiny.  The lower courts had not thought so, seeing these as content-neutral because they did not distinguish what group was meeting, or which candidate was being promoted, and therefore were unbiased in regard to content; the Supreme Court said that was a mistake.

So big deal, towns cannot regulate the placement of signs which give directions to church services and Alcoholics Anonymous meetings and Boy Scout picnics differently from other kinds of signs.  How does that matter in the big picture?  It matters because of that new definition of content-based speech.  In Springfield, Illinois an ordinance banning panhandling in certain parts of the city has been struck down because it is based on the “content” of speech begging for money.  A South Carolina statute that barred the use of “robocalls” for “political” and “commercial” topics but not others (for example, robocalls to alert families to school closings were permitted) has been invalidated because it is content-based.  The applications of the new definition of “content-based” are going to have far-reaching repercussions, one of the concurring opinions noting that a lot of Fedieral regulations concerning product labeling, safety notifications, and personal privacy are in jeopardy.

So our freedom of speech just got a bit broader.  We may be living in interesting times.

In addition to blog entries with the appropriate tags, see also the article Freedom of Expression.

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