In the wake of the decision in Snyder v. Phelps, I have been thinking a little about the contexts in which law recognizes the pain that words can inflict. There are interesting tensions across various spheres of law -- collisions of values -- between the good of speech and the evil of speech.
Consider criminal law. One might think that criminal law is totally unconcerned with speech -- what difference does it make that someone says something nasty insofar as the criminal justice machine is concerned? But actually it can make a big difference: words can be highly relevant. Hate crimes are one example. So are crimes of heat of passion upon adequate provocation. The old common law rule was that words alone, no matter how outrageous or provocative or painful, could never transform a killing that would otherwise constitute murder into manslaughter. That category of mitigation was restricted to very specific situations, one of which was the discovery of one's spouse in flagrante delicto. Perhaps surprisingly, the modern trend is to admit the possibility that words alone might well be enough to render an ordinary intentional killing a different sort of killing -- one which is punished much less severely. And states that follow the Model Penal Code approach take an even more liberal view of the evil of words: so long as a jury concludes that a defendant acted with extreme mental or emotional disturbance when he killed, he will be convicted of manslaughter, not murder. The onset of extreme emotional disturbances is frequently actuated exactly by the infliction of verbal pain.
Why is the criminal law concerned with the infliction of verbal pain? What is its relevance? I know of two explanations, both of which may have interesting implications for the law of free speech. The first is that people who are provoked by words that they find exceptionally painful, and who react to the infliction of verbal pain by killing, are weak people -- people acting out of a kind of akrasia. Given our collective fallenness -- our post-lapsarian wretchedness -- we can understand empathetically how a person might succumb to the animal urge to violence in response to the infliction of verbal pain; we can excuse such acts. The second explanation is quite different: the infliction of verbal pain warrants some sort of response, justifies it. It is wrong to inflict verbal pain, and he who is wronged in such a way is entitled to have the wrong righted. Of course, he is not entitled to kill the provoker, but his killing in response to the infliction of verbal pain is less wrong -- and therefore more right -- than it otherwise would have been.
Here is the puzzle for the law of free speech as well as criminal law: generally (with only a handful of exceptions -- pornography, fighting words, and a few others), we assiduously protect the content of speech, particularly when it deals with a matter of public or common concern. We do this because of the goodness of speech -- its familiar and much touted intrinsic and instrumental benefits. But how do we square this near-absolute protection for the content of speech with the rule that words alone can and often will mitigate murder to manslaughter?
It is often said that the most absolute protection for speech is warranted where the content of the speech concerns political or moral issues. Speech critical of the United States or the Catholic Church, as in Snyder, for example, merits the strongest and most absolute sort of protection. But notice that criminal law makes no such distinctions. If A is an extremely devout Catholic who takes insults about the Church very badly, and B says, "Your church is a damnable abomination" with attendant comments about pedophilia and the like, and A, in response, kills B, it will make no difference at all to the criminal law that B's speech was on a matter of public concern. The question whether his reactive killing warrants mitigation will be put to the jury just the same as if B had directed some highly personal and embarrassing insult at A.
The puzzle is that while in the free speech context, we say all of these wonderful things about the value of speech on matters of public concern -- how democracy-enhancing it is, how Millian in all the happiest and most rational ways -- in the criminal law context we are generally inclined to recognize the evil of speech, even speech that is concerned with core First Amendment matters. The disjunction is most difficult to square up if adequate provocation mitigation is taken to be a partial justification -- if we feel that inflicting verbal pain is a wrong that deserves to be righted, not by exonerating the defendant but by mitigating his punishment. How could it be right, good, to react violently to something which is goodness itself? But the tension remains even if we think of adequate provocation mitigation as an excuse. For if speech is really so good, so truth enhancing, so unqualifiedly beneficial, such an unambiguous blessing, why should an ordinary, fallen man react to painful speech with violence -- and not just any violence, but the worst kind? Below the glassy surface of our sunny encomia to free speech, especially speech prototypically protected by the First Amendment, our real feelings and intuitions about it are actually much more mixed -- speech can be, and often is, just as evil as it is good.
At this critical time when education policies throughout the US are being reshaped, The American Center for School Choice is organizing and hosting this event to ensure that Americans can select a faith-based school for their children. This is a day to analyze how best to remove obstacles to expand this choice for families and to encourage faith-based schools to increase their presence in the education reform arena.
Today, approximately 75% of the 29,000 private K-12 schools in the US are faith-based. Private schools serve about 6.1 million children, nearly 11 percent of K-12 students. But faith-based schools have been disappearing from urban areas at alarming rates. Between 2000-2006, 1162 urban faith-based schools closed and nearly 425,000 fewer students were served. This alarming trend continues today.
But we have the opportunity today to reverse that trend if faith-based schools can come together to support expanded school choice legislation and programs. Only 12 states and the District of Columbia have enacted programs that provide public dollars, mostly to low-income families, which enable these families to choose a faith-based school. These 20 programs, 11 scholarship and 9 tax-credit programs operated through nonprofit organizations, enrolled 180,000 students in 2009-10, up 87 percent in five years.
Although parental choice is clearly a driving force in school reform, as demonstrated in the growing charter school movement and California’s breakthrough Parent Trigger Act allowing parents to move against persistently failing schools, empowering families to select a faith-based school has too often been absent in reforms. With promising private school choice victories recently in Florida, Georgia, and Louisiana, even supported by Democrats, this is a propitious time to develop the next steps to create more opportunities.
Only 12 states and the District of Columbia have enacted programs that provide public dollars, mostly to low-income families, which enable these families to choose a faith-based school.
The April 1 sessions will update the basis for public support for families to choose faith-based schools. All the major denominations, Catholic, Evangelical, Main line Protestant, Jewish and Muslim schools, will be represented to discuss how best to build on current programs and create new ones. The conference will examine how these schools can continue to serve low-income families in urban areas where historically they have played a strong role. The political sessions will analyze the best opportunities for passing new legislation and expanding current programs as well as what operational limitations would be unacceptable to the schools. In addition, experts will evaluate the legal constraints, such as states’ Blaine amendments, and the possibilities for challenges and/or changes to them.
We have assembled a wide range of experts to address these issues from all sides of the political spectrum. Retired federal appellate court judge and current Stanford University law professor Michael McConnell will be our luncheon speaker.
The American Center for School Choice is a 501 (c) (3) nonprofit organization founded in 2008. The mission is to expand public support for families to choose the schools they believe will best serve their children. Although the Center has a special affinity for the plight of poor and working class parents who have been so ill-served by the predominant state education monopoly, it believes all parents and families as well as society broadly will benefit from being empowered to choose from a wide variety of educational options.
For further information, contact:
Peter Hanley Executive Director American Center for School Choice 650-533-9256
This piece is an interesting reflection on the faith-related themes in "The Sunset Limited", an HBO filmed-play, which I really enjoyed and which is based on a work by one of my favorite living writers, Cormac McCarthy.
Michael Helfand is a very bright young legal scholar who just joined the faculty at Pepperdine. My guess is that his work will always be worth reading. Check out his new paper, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders. Here's the abstract:
This Article considers a trend towards what I have termed the “new multiculturalism,” where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance with religious law. Indeed, with growing skepticism regarding the oppressive potential of religious majorities, critics have questioned whether religious arbitration has any place in a regime dedicated to individual liberties. By contrast, this Article contends that current arbitration doctrine can meet the challenges of the new multiculturalism. To do so, this Article makes two concrete policy recommendations: (1) courts should redefine the scope of enforceability of religious arbitration awards by limiting the application of the public policy exception to vacate religious arbitration awards and (2) courts should expand the application of unconscionability to void religious arbitration agreements.
A former student of mine, Matt Emerson, has published this essay at the Patheos website, about the position and nature of "Jesuit education in the modern world." The piece, which makes for sobering reading, might be usefull paired with some of what our colleague John Breen has written about Jesuit law schools.
Chief Justice John Roberts is clever and brazen, but he lacks integrity. The military funeral case, Snyder v. Phelps, is a good example of opinion writing gone wrong. Roberts argues that the predominant theme of the material on the picket signs was of public concern expressed in a place that the demonstrators had a right to be and that it was, therefore, protected. He argued that speech cannot be suppressed simply because it is upsetting or arouses contempt. And he argued that the elements of the tort of intentional infliction of emotional distress are too subjective, that they could lead to suppression of constitutionally valuable speech.
You might think from the opinion that Roberts was applying a standard public/private distinction and was not creating new law. In fact, as everyone who knows first amendment law including Roberts is aware, Hustler Magazine v. Falwell was the first case to place first amendment limits on the tort of intentional infliction of emotional distress and, then in a quite limited way. It said that the first amendment is a defense against a claim brought by a public figure or a public official unless the defendant knowingly made false statements. The case goes no further. It certainly did not decide that the intentional infliction of emotional distress gives rise to a first amendment defense in the context of a private person when the speech is of private and public concern. That was the issue to be decided in Snyder (though the cert petition was so poor on this that the case might have been dismissed as improvidently granted). Perhaps I am too picky, but I regard it as a minimum requirement of judicial integrity that a justice state what the state of the law is and what needs to be decided, as opposed to writing as if nothing new under the sun is contained in the opinion.
The opinion also does not adequately confront the fact that speech on public issues is often abridged, e.g., some types of advocacy of illegal action, some types of defamation, and violations of intellectual property. Implicitly, Roberts may be dealing with these and other cases by suggesting that you cannot suppress speech because it is upsetting. True, but the tort here does not focus whether the defendant was upset, but whether the speech caused severe emotional distress. If Roberts actually faced the tough issue in the case (if it is a tough issue), he would need to weigh the intentional infliction of emotional distress against the speech values associated with being able to demonstrate about issues of private and public concern near a funeral. And, I think integrity demands the concession that limiting speech in this regard does not wholly suppress speech because it leaves open the possibility of employing such speech virtually everywhere else in the world.
Finally, Roberts suggests that it might be permissible to ban demonstrations near funerals because a ban of that character would be content neutral. But this would require a lack of integrity as well because everyone in the country knows that such bans have been passed in response to the demonstrations of Fred Phelps. Those bans cover protected speech and what (in my view) should be unprotected speech indiscriminately. If Fred Phelps speech is constitutionally protccted, legislation passed pursuant to a purpose to prevent it should similarly be unconstitutional.
I do not agree with the constitutional interpretation of the first amendment announced in Snyder. But that is not the point of this post. Wholly apart from my view of the merits, I think the opinion is not a good piece of advocacy and it is even worse as a judicial opinion. John Roberts had an excellent reputation as an advocate. But he will never be a good justice until he starts writing opinions which accurately state what is at stake in the cases presented and opinions which face up to hard issues when they are presented instead of glossing past them. To put it another way, the Chief Justice should at least sound like the umpire he promised to be. And people who try to sound like umpires are more likely to become umpires.
We've already noted President Obama's recommendation that laws discriminating against gays and lesbians be subject to heightened scrutiny -- i.e., that rational basis review of bans on same-sex marriage is not appropriate. The question that hasn't received much attention, though, is why did Obama stop with intermediate scrutiny (the standard applied to gender discrimination)? Why didn't he endorse strict scrutiny (the standard applied to racial discrimination) as the appropriate standard for laws discriminating against gays and lesbians? Jason Mazzone weighs in:
[A]nother explanation for the administration's choice seems unavoidable: the administration picked the level of scrutiny least likely to alienate Black voters. Numerous polls demonstrate that Blacks constitute the ethnic group least likely to support same-sex marriage and by a significant margin (though perhaps as Obama's thinking "evolves" on same-sex marriage, other Black voters might change their minds as well). For many years, (certain) Black commentators have expressed offense at any comparison between racial prejudice and discrimination on the basis of sexual orientation. In particular, comparisons between bans on same-sex marriage and anti-miscegenation laws have drawn sharp criticisms. It follows that Blacks will be the least likely group to accept the administration's argument for special constitutional protections for gays and lesbians--especially when it comes to same-sex marriage.
So the administration is playing to both sides: recognizing the need for stronger protections for gays and lesbians while leaving race as a special category that deserves the strongest judicial protections. In this way, the administration can avoid (or try to avoid) any need to argue that the prejudice underlying the historical bans on interracial marriage has a contemporary manifestation.
Can you come up with any reasons to choose intermediate over strict scrutiny that are not rooted in political considerations?
Since we're on the subject of parental rights, here's another new paper (this one by Scott Altman) that explores a different approach as a basis for parental claims: the value of intimacy. Here's the abstract:
This paper explores whether parents’ rights to live with their children and to deny others access to those children are justified by the more basic right to form and maintain intimate relationships. Many theories treat parental rights as derivative – indirectly justified by children’s interests. This paper asserts a nonderivative justification based on the value of intimacy to parents.
The paper initially explores the potential intimate relationship between a father and his newborn genetic child. It asks whether the interest in parental intimacy creates any reason to demand access to this particular child. Just as a right to intimacy provides no claim that a particular stranger become my friend, the right to become a parent seems to provide no justification for demanding access to a particular child. The paper argues that duties to care for genetic children – even controversial duties not widely accepted – provide a prima facie right to care for a genetic child. The right to establish an intimate relationship derives from a duty to do so.
The paper next considers rights to maintain ongoing intimate relationships with children. These are often challenged when grandparents or step-parents seek visitation over a parent’s objection, or when a custodial parent seeks to relocate after divorce. I explore two common interpretations of these conflicts, which are pervasive in both legal and moral relationships: that people who knowingly make themselves vulnerable assume risks of loss, or that people who knowingly accept another’s vulnerability owe duties not unreasonably to disappoint those who rely on them.
The paper concludes by considering whether broad parental authority – to exclude others and to direct the upbringing of children – can be justified by the parental right to intimacy. I do not believe intimacy can justify such rights. But I explore briefly alternative parental interests that could ground this right – interests that compare parents with artist and other creative workers.
....that was the headline on the front page of our local paper today, over a story about this report released yesterday by the White House: "Women in America: Indicators of Social and Economic Well-Being." The findings are old news to most of us, if we look around at our own work places. Despite the fact that more women are increasingly more likely than men to have a bachelor's or master's degree, and that the numbers of women and men in the labor fource are almost equal, "At all levels of education, women earn about 75% of what their male counterparts earned in 2009. In part because of these lower earnings and in part because unmarried and divorced women are the most likely to have responsibility for raising and supporting their children, women are more likely to be in poverty than men. These economic inequities are even more acute for women of color."
What does it look like where you work? How do the numbers of women colleagues at your level compare to the numbers of women who graduated from law school with you? I suspect almost all of us would have to say we've lost a couple (or five or six) somewhere along the way. The statistics in this forthcoming article substantiate that conclusion for law firms; I've documented the same on law school faculties in this article.
Does that bother you? Is there anything that can be done about it? Start by taking a look at the parenting leave policies at your own workplace. Do they make it possible for a woman who has more than one child to stay employed, let alone keep climbing up the ladder toward positions of the highest responsibility and salary? If not, maybe that's one place to start chipping away at the persistent (and clearly complex and multi-facetted) feminization of poverty.
The Supreme Court has issued Snyder v. Phelps, the case about the Westboro Baptist Church's desecration of a serviceman's funeral by picketing the funeral with outrageous signs at about 1,000 feet in distance from the funeral site. When the funeral attendees processed out, they came within 200-300 feet of the protesters, and the deceased's father could see the tops of the signs, though not what was written. The father later saw the whole abomination on the Internet, along with further personally offensive and deeply hurtful material directed against his son. The Church won. Though I am not surprised by the judgment, I respectfully disagree with it, and I have to say that I am surprised by the fact that there was only one dissent (Justice Alito).
In the first place, Chief Justice Roberts raises a number of facts that the majority finds salient that I simply don't: the Chief Justice says, for example, that the picketers "did not yell or use profanity." For me, carrying signs saying “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You" is quite profane enough (vulgar, that is to say popular, profanity is not the only variety). Second, I disagree that signs displayed at a funeral and directed at the congregants containing the phrase "You're going to Hell" or "God Hates You" are at all matters of public concern, and I agree with Justice Alito that mixing in some statements that ostensibly are "public" ought not categorically to immunize the expression. Third, this speech occurred right next to a private funeral -- its context was plainly private. I recognize that technically, formally, the protesters were situated on a public street. But that fact does not, in my view, do justice to what a "contextual" analysis ought to be all about.
Finally, and most importantly, I disagree with the Chief Justice's statement that "any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself." That is true, again, only if one takes an exceptionally narrow view of what funerals are all about. Funerals are not simply occasions bounded in time and space by the beginning and end of the proceedings at the burial. Funerals are symbolic occasions to honor, mourn, and remember the dead. Their meaning and value extends well beyond the time between the moment of the cleric's first utterance and the moment that the body falls to earth. I recognize that this conception of a funeral creates problems of line-drawing. So be it. Whatever those problems might be, they are not implicated here, where protesters were only feet from the event itself and where their protest was flamboyantly and spitefully flaunted immediately thereafter. And far better to trouble ourselves about slippery slopes than to sacrifice one of the most cherished values that we and so many civilized peoples hold dear -- the value of honoring the dead -- on the altar of free speech.
Speech is, indeed, powerful, as the Chief Justice rightfully says. And it is precisely for that reason that speech rights ought to be strong, but not absolute; protected, but not inviolable. A regime of free speech absolutism even when we deal exclusively with matters of "public concern" (which was not the case here) is not, in my view, consistent with a state's responsibility to cultivate, to the extent that it can, the social and moral ecology of its people.
