23.9.06

A point I've been looking to take up with Ed Brayton

At a recent post at Dispatches from the Culture Wars, Ed Brayton comments that:

The reason there is both a free speech clause and a free exercise clause is that the latter covers far more than speech, and because in light of their experience freedom of religion was a particularly important right to protect.


To which I replied:

This is actually a point I've been wanting to take up for some time: What exactly is covered by free exercise that is not covered collectively by free speech, free press, freedom of peaceable assembly, inviolability of the home, habeus corpus, etc.?

It seems to me that explicitly mentioning religious practice as protected either signals that religious practice is protected above and beyond - say - political speech, or is in clear violation of Ockham's Razor.

From where I'm standing, there seem to be two inheirent problems with that:

Firstly, I can think of legitimate religious excersise that would not be covered by other civil liberties. Thus, explicit mention of religion conveys the impression that freedom of religious practice is more far-reaching than other civil liberties.

For instance, it is clearly both constitutional and legitimate to prohibit libel and slander. But if you couch your libels and slanders in religious terms, a case can suddenly be made that libel and slander laws do not apply, because religious speech is protected in ways that go above and beyond ordinary free speech. Not a very good case, I admit, but a case none the less.

Or, to take a less open-and-shut example, a case could be made that it is constitutional to prohibit lying in advertismen. Would such a law (assuming it was not unconstitutional on free speech grounds) require a religious exemption for televangelists?

If religious speech is protected above and beyond ordinary free speech, then a rather compelling case could thus be made that televangelists are allowed to defraud people as long as they couch their fraud in religious gibberish.

Or take a faith healer, who advocates medically unsound practices. Assuming that this could be forbidden without violating freedom of speech (which I very much doubt, but let's go with the notion for the sake of the argument)

Now, personally, I think that if someone is stupid enough to fall for a televangelist or faith healer, it's their money, their health, and their problem.

Nevertheless, these two groups of frauds are clear examples of people who use their target audience's superstition to make a buck - I see no indication that they would be above using the same superstition to game the law.

My second concern is that explicitly protecting religious practice - even when the protection extends no further than the other civil liberties - makes it less likely that the ordinary civil liberties will be enforced: It is usually easier to draw a bright line saying 'religious practice here,' than to take on a messy argument over free speech and the limitations thereof.

Thus, we often (at least in Europe) see lawsuits over matters that would clearly be covered by freedom of speech waged over freedom of religion. The problem with this is fairly obvious: It deprives the public record of a precedent case (re)establishing freedom of speech - not to mention the possibility for creating conflicting precedents.

And that's leaving quite aside the issue of symbolism: I find it a most unhealthy signal to send that religious expression is somehow different from ordinary expression - it is precisely this kind of implied dualism that (mis)leads people to conclude that religion should be subject to some special 'respect' or overt veneration.

Of course, all of these concerns would be moot if there is even one example - contrieved or otherwise - of acceptable and legitimate religious practice that is not covered by the other civil liberties (of course, that would then raise the issue of why that practice isn't covered).


Whether I'm right in my assumptions or not, this should be an interesting one to watch.

7 Comments:

Blogger Ted said...

I generally agree with you but I think that both freedom of expression and speech are not absolute, and mostly because we need to view these concepts in the context of today rather than in the context of the 17th, 18th, 19th or 20th centuries.

We need to evolve our understandings of the rights that we're willing to grant and to see that the rights granted do not expressly infringe on each other and other social constraints. Most of the recent right grantings tend to be somewhat parochial and driven by special interests that may be diametrically opposed and designed to have someone else eat shit, and that typically will evoke conflict not resolution.

Additionally, confrontational politics are destructive and they should be mitigated. The Jutland Post thing is an example not of free exercise of speech, but of public manipulation; as such I don't find it particularly worthy of protection -- not that I would support the fundamentalist view. I just don't support the confrontational model to bring consensus to anything because I see it as deeply nationalistic.

18:04  
Blogger JS said...

Of course freedom of speech is not absolute. Freedom of speech is limited - among other things - by the need to maintain an ordered society and the need to protect citizens from slander, libel and harressment.

That aside, you raise, as I read your post, three points:

1) Our bill of rights must be consistent.

No argument there. In point of fact, I have often used this very axiom to point out why freedom from religion is preferable to freedom for religion.

2) Excessively confrontational speach should be controlled, because it incites social unrest.

There is an extremely fine line here. On the one hand, it is obvious that certain kinds of speech should not be allowed.

If, for instance, I distribute a leaflet with directions on how to build a bomb on one side and a map showing the location of a bar/temple/university department on the other, it would reasonably be construed as a threat or an incitement to violence.

Is such an incitement to violence 'confrontational?' Without a doubt. Should it be punished? Without a doubt.

On the other hand, you have speech that is arguably confrontational, but should clearly not be banned.

Take, for instance, the gay pride event currently being threatened and attacked by jewish, christian and islamic terrorists in Jerusalem. In this case, most or all of the violence and incitement to violence comes from the people who are opposed to the march.

Is a gay pride event 'confrontational?' Without a doubt. That's the whole point of holding it. To provoke bigoted people and be confrontational about the issue of sexual equality. Should it be banned? No way in hell.

Then, of course, there's the grayscale area between such black and white examples. Is a neo-nazi rally, for example, an incitement to violence, even if no-one present make any concrete statements or take any concrete actions to that effect? It could be argued either way.

On balance, I think neo-nazis should be allowed to hold their rallies, but I can certainly see where the people who disagree with me are coming from.

3) That JyllandsPosten's cartoons were excessively confrontational.

Here I must flat out disagree, for three reasons:

First, the cartoons were not inciting violence. Some of the people who didn't like them were, but that's beside the point.

Second, none of the cartoons were attempts to slander or libel any person or group of persons.

Third, the cartoons were aimed at religion, a subject that usually gets a kids-glove treatment by the Danish and international press.

Frankly, people who take their religion so seriously that they are offended by cartoons, really need to have their religious sensibilities offended more often and more gravely.

Lastly, I don't quite understand what you're saying w.r.t. the 'recent right grantings' you're talking about in paragraph two. The only recently added right I can think of is the right to reproductive health as stipulated in the Cairo Convention. Both freedom of the press and freedom from religion date back to the French and American revolutions.

- JS

00:40  
Blogger Ted said...

There is an extremely fine line here.

I agree and this is problematic. However, I don't think that because it is a fine line, it negates it's existence or validity. It's still a line. I depend on social intelligence to define the line rather than dogmatic expressions or reversions to Jefferson, Mill and others. The social intelligence comes from shared social experiences such as high quality, inclusive education and social training in tolerance.

To me the question of speech by confrontation is a question of sloppiness and regression. If we can't discuss with rationality it becomes acceptable to gain consensus (and draw opposing parties into identifiable camps) by appealing to emotion. And that takes a step backward from progress and has roots in general laziness more than the only alternative remaining.

WRT the J-P, I don't think that the cartoons were particularly offensive, but that really isn't for me to judge since they were never directed at me other than to make me take sides based on reactions of outraged fundamentalists. I think that the J-P is a somewhat conservative outlet, and as such I think the cartoons were not meant to convey humor as much as create an opportunity for moral panic (i.e. create the case by highlighting it and thus sow a whirlwind) and polarization. I don't think it was done well, artfully, gracefully, or for the right reason. The right reason would be educational or academic, but this was not the result of the J-P controversy. Like many other media outlets, J-P serves an ideology more than a specific need to make things socially better or to educate.

I am aware that many people don't agree with my view and would argue for supporting J-P based on principle. Since I think that they were incompetent in their presentation of free expression and speech, I don't feel compelled to defend incompetence or stupidity.

WRT to granting of rights, I have an issue with the source origination of rights that can be conferred. We can go back from the French to Americans to CoE but it doesn't have to be that complicated.

I believe that rights are socially conferred -- rights are not granted or guaranteed by a supernatural being, not by natural forces, but by groups of parochial persons that are often not using particularly enlightened mechanisms. I also believe that because they are socially conferred, they should be examined in the social context continually, and modified if they need to be -- to prevent their elevation to dogma.

In actuality, this happens constantly. Laws expand voluminously in every nation as rights are defined for some and taken away from others. Land ownership and taxation are mundane ways that rights change by social fiat. I think that is relatively normal and responsive. What I don't find particularly appealing is that some rights are protected from social examination because they derive from Mill, Jefferson, Madison, Hume, or whoever the great dead white guy of the day is that his supporters seek to deify.

In that sense it becomes as oppressive as religionist logic -- that I should accept their dogma without intelligently extrapolating the social changes incipient between the formation of those great ideas and now. I find it foolish that I need to accept the philosophy of an agrarian-era political philosopher in the 21st century without simultaneously examining the social changes that impact on their thoughts.

It is common to get into an argument on rights, and the other person will say something like, "But you just don't understand the basis of my argument. Just read Mill."

To which I usually retire from the argument -- because I did read Mill, and I don't think that I will deify Mill unless someone can tell me how his views apply to global warming remediation.

19:02  
Blogger JS said...

Hmm... I think we're mostly on the same page when it comes to premises. But I draw some rather different conclusions than you do.

Before I get down to a point-by-point analysis, however, let me extend a belated welcome to the comments section here. My courtesies must have been eroded by the past-midnight hour of my last comment...

[Gah... Friggin' stupid html tags not recognizing 'blockquote' (or, which is more irritating, 'target' arguments in the link tags - so beware that the links in the comments don't follow my usual open-in-a-new-tab doctrine)]

I agree [that there is a fine line] and this is problematic. However, I don't think that because it is a fine line, it negates it's existence or validity. It's still a line.

A point that was never really contested. However, freedom of speech is - in my view at least - sufficiently important that we should attempt to draw the line based on some sort of consistent premises, rather than just applying the 'squint' test.

Sticking with the Cartoon Jihad example you cite, I have yet to see anyone come up with a consistent reason for banning those cartoons that would not subject any speech, on any subject, to either outright cencorship or the 'heckler's veto.' Claiming that the speech is 'confrontational' simply doesn't cut it; there are legions of examples of 'confrontational' speech that was both appropriate and legitimate.

Poking around the Federalist Letters will find you plenty of stuff that was at the time considered highly confrontational and which is today accepted wisdom, but my personal favourite example is Henrik Ibsen's play A Doll's House.

Without making comparisons of quality (it is fairly obvious that Ibsen was more artistically and technically competent, by a couple of orders of magnitude, than JP), it is in many ways similiar to the cartoons that nominally touched off the Cartoon Jihad [1], in that it was explicitly confrontational and was at the time highly controversial. In point of fact, most of the same arguments heard in condemnation of the JP cartoons are as close to the complaints leveled at A Doll's House as Intelligent Design Creationism is to Creation 'Science.' (Although with less Molotov coctails were involved in the protests against Ibsen...)

I depend on social intelligence to define the line rather than dogmatic expressions or reversions to Jefferson, Mill and others.

But that's just reversion to the 'squint' test. 'Social intelligence' - or, for that matter, any other kind of 'intelligence' [2] - does not excuse you from being consistent.

When you come up with a consistent principle for limiting speech that is materially different from 'no threats, slander or harressment, but anything else is fair game,' then we can have a reasoned and reasonable discussion of the merits of these different principles. Until then, you're simply engaging in fancy-worded special pleading.

To me the question of speech by confrontation is a question of sloppiness and regression. If we can't discuss with rationality it becomes acceptable to gain consensus (and draw opposing parties into identifiable camps) by appealing to emotion.

Yes and no. While I generally agree with you that there is far too much emotional demagogy and trench-digging in public discourse, 'confrontational' speech and conduct can often have a legitimate role to play. A confrontational approach can be warrented when it showcases extremism on part of a social actor [3]. Confrontational speech and politics can be appropriate as a reaction to silent and unnoticed repression - such is the case with gay pride events, for instance. Confrontational art or politics can be a wake-up call to a society that doesn't care

I think that the J-P is a somewhat conservative outlet, and as such I think the cartoons were not meant to convey humor as much as create an opportunity for moral panic (i.e. create the case by highlighting it and thus sow a whirlwind) and polarization.

Yes and no... In American terminology, JP is probably somewhere around the right wing of the Democratic Party. In European terminology, it's somewhere in the German CDU or the British conservative party. It does not, however, follow from this fact that the cartoons were meant as a deliberate provocation (they were, as it happens, but that does not follow from the political stance of the paper - anti-fundamentalism is not a partisan or left-right issue).

I don't think it was done well, artfully, gracefully, or for the right reason. The right reason would be educational or academic, but this was not the result of the J-P controversy. Like many other media outlets, J-P serves an ideology more than a specific need to make things socially better or to educate.

Well, there are several questions here. One; were the cartoons artful and/or graceful? Some of them were, but not outstandingly so. On the other hand, few editorial cartoons are. Two; was it done for the right reason. You cite education, enlightenment and social improvement, and you state that the cartoons fall into neither group. Here I must flat out disagree. Whatever the intent, egg on the face of fundies constitutes both a furthering of enlightenment and social improvement in my book.

I am aware that many people don't agree with my view and would argue for supporting J-P based on principle. Since I think that they were incompetent in their presentation of free expression and speech, I don't feel compelled to defend incompetence or stupidity.

There are two distinct issues here: Were the cartoons A Good Idea? And: Should such cartoons be allowed? There is a disturbing tendency among people on all sides of this debate to conflate those two issues. Whether you have an obligation as a democratic citizen to support JP on principle depends on the question being asked. If you're answering the first question, the answer clearly is that you don't have to support JP. If you're answering the second question, however, I would definitly say that all democratically-minded citizens should stand up for JP's right to print what they want - regardless of the artistic quality of the cartoons, and regardless of the sentiments of Molotov-throwing fundies.

WRT to granting of rights, I have an issue with the source origination of rights that can be conferred. We can go back from the French to Americans to CoE but it doesn't have to be that complicated.

I believe that rights are socially conferred -- rights are not granted or guaranteed by a supernatural being, not by natural forces, but by groups of parochial persons that are often not using particularly enlightened mechanisms. I also believe that because they are socially conferred, they should be examined in the social context continually, and modified if they need to be -- to prevent their elevation to dogma.


You're conflating two different kinds of 'rights' here. Certainly, there are 'social rights' conferred by society at large - w.r.t. freedom of speech this part of the social contract balances the need to avoid excessive taboos and the need to maintain civil discourse. We obviously disagree on how polite public discourse should be towards religious groups and their sensibilities. While the drawing of this line is important, the importance pales in comparison to the other kind of rights involved: Legal rights.

As I have stated above, I think that legal rights should - as a bare minimum - be consistent and universally applicable. The reason I often refer to Jefferson, Voltaire, et al is not that I consider them infallible saints - Jefferson, after all, believed that an armed revolution every now and then was good for society, a notion that I personally find bizarre. They did, however, make a lot of points that are still valid, and they came up with a structure that - with certain modifications - still makes sense. If you can provide a better alternative, I'm all ears. But I'm not going to hold my breath waiting for it to happen.

In actuality, this happens constantly. Laws expand voluminously in every nation as rights are defined for some and taken away from others. Land ownership and taxation are mundane ways that rights change by social fiat. I think that is relatively normal and responsive.

There are rights, and there are rights. Property rights, taxation level, speed limits, etc. are continuous, in the sense that there is no obvious, underlying principle that sets speed limits or taxation levels precisly at the values they have in a given society. They are, as you put it, decided by pure social fiat.

On the other hand, there are rights that are simple up-or-down: You either have Habeas Corpus or you don't. You either prohibit torture or you don't. You either allow freedom of speech or you don't. You cannot have half a Habeas clause and still claim to not be a police state. You cannot prohibit 60 % of all torture and still say that you respect human dignity. And you cannot prohibit some kind of speech and not other kinds solely based on content and still claim to be free of censorship.

In that sense it becomes as oppressive as religionist logic -- that I should accept their dogma without intelligently extrapolating the social changes incipient between the formation of those great ideas and now. I find it foolish that I need to accept the philosophy of an agrarian-era political philosopher in the 21st century without simultaneously examining the social changes that impact on their thoughts.

Nobody I know makes that claim. On the subject of religion vs. civilisation, however, there has been little in the way of development to take into consideration.

- JS

[1] Let's leave aside the fact that what actually touched off the Cartoon Jihad was the attempts by members of the Islamist Society of Denmark to spin the situation to their advantage - that's for another day...

[2] The scare quotes around 'intelligence' is not meant as a disparagement of anyone's mental acuity, I just don't buy into Gardener's 'multiple intelligences' bullshit, which is where the term 'social intelligence' originated. Hence the scare quotes.

[3] The Cartoon Jihad is actually a prime example of extremists being marginalised because of confrontational politics. Before the Cartoon Jihad the Danish Imams were taken borderline seriously. Their political capital, such as it was and what there was of it, vanished almost overnight when their conduct during the crisis came to light. This happy outcome alone completely justifies the publication of the cartoons.

00:25  
Blogger Ted said...

Thanks for taking the time to explain; I appreciate your insight. I'll return to reread your answers a few times and think through them some more.

17:28  
Blogger Ted said...

Claiming that the speech is 'confrontational' simply doesn't cut it; there are legions of examples of 'confrontational' speech that was both appropriate and legitimate.

If you feel like starting a new post on freech, I'll play. Lets look here, here, here, and here to start.

Than lets discuss confrontational and what may cross that barrier (if you feel like it). This is actually a riff on something off of Ed Brayton's site.

21:45  
Blogger JS said...

I'm always happy to have an intelligent conversation.

I'll make a new post as per your suggestion, but it may not go up until tomorrow (I'm in GMT+1, making it the next best thing to 2 a.m. local time right now).

I saw Ed's post too, but frankly I didn't understand your reply to it. If the protesters in question got a permit, I can't see how there could be a problem - free assembly trumphs zoning laws in any reasonable legal and ethical evaluation - and if they didn't get a permit, the problem would have nothing to do with zoning laws...

- JS

02:07  

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