I am quite glad to see that libertarian law professor and uber-blogger Eugene Volokh has weighed in on the discussion surrounding the scheduled Black Mass in Oklahoma City.

I am glad Volokh weighed in because I know his history of carefully considering the legal principles surrounding First Amendment issues–and because I think, at least up until The Volokh Conspiracy moved to the Washington Post website and became harder to follow, I had read pretty much every post he’d written on any related subject since about 2003. I am also pleased because I think that, as regards only the specific point of legal understanding he comments on, he is probably correct.  That correction will help us all to clarify the situation considerably.

In fact, when I wrote my letter, I imagined Volokh and his confreres in order to test my words–not because I expected Volokh to be wholly sympathetic to Archbishop Coakley’s objections, but because I was confident that Volokh’s response would be accurate, to-the-point, and respectful.  Here is his post, shortening his extract from the Archbishop’s remarks:

“I’m disappointed by their response,” Archbishop Paul Coakley of the Archdiocese of Oklahoma City told FoxNews.com Friday. “If someone had come to them to rent the Civic Center to stage a burning of the Koran or to hold an event that was blatantly and clearly anti-Semitic, I think they might find a way to prevent it.

“Not all speech is protected if there is hate speech and it is intended to ridicule another religion,” he said. “I don’t believe it is a free speech matter.”

No, speech intended to ridicule or insult another religion is entirely constitutionally protected, as the Court has held since 1940. Under the First Amendment, people are free to criticize, ridicule, parody, and insult religious belief systems, no less than other belief systems — whether they are Catholicism, Islam, Judaism, Satanism, atheism, capitalism, Communism, feminism, or fascism.

And this remains true even as to government-owned auditoriums that have been generally open for public rental. The government may not exclude speech from such places, whether they are called “designated public fora” or “limited public fora,” on the grounds that it’s blasphemous or “hateful” or “intended to ridicule another religion.” (It’s an open question whether the government may sometimes exclude all religious worship services from particular kinds of government property, but I’m unaware of any such across-the-board exclusion as to the Civic Center Music Hall, and indeed at least one church apparently regularly conducts services there.)

(source: The Volokh Conspiracy)

I want to take the opportunity presented by Volokh’s comment to expand on the very brief suggestion of an argument I made in my own letter, take up a few concerns I’ve seen in comments, disagree a tiny bit with some of my friends, and to also look at the very real problem–one that gets at metaphysical reality and points out the limits of our constitutional framework, at least as currently understood–in a few posts to follow this one.

For now, let me simply hint that my line of argument, where it touches on the laws, appeals to one of those principles that comes up from time to time when constitutional limitations require a change to standing precedents.  I’ll quote it in its native form:

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

(source: TERMINIELLO v. CITY OF CHICAGO. | LII / Legal Information Institute)

That, of course, and the Miller test.

(Some may not know:  a small group of agitators led by a registered sex offender has, by means of carefully crafted equivocations, managed to arrange for the Oklahoma City Civic Center to not only rent space but also sell tickets for a “performance” which either is not the “religious” ritual it pretends to be or is obscene and criminal by any reasonable community standards. Archbishop Coakley made a point of speaking out about this escalation from past agitations that had flown under the radar.  Several sources immediately spoke out, including friends from the parish; I sent a letter, myself, to the newspapers and the Civic Centre.  The Archbishop issued another, more specific statement calling on all people of good will to stand together against this manifestation of ill-will, then with a letter to the Archdiocese instructing us to take appropriate countermeasures.  The Archdiocese has posted contact information for those who bear moral and civic responsibility for this abuse of the community’s trust; efforts have also been made to ascertain whether this will actually be the criminal and obscene act that the title advertises, or whether this is just a few maladjusted poseurs seeking attention.)

(For more on the criminality involved, start with incidents like this attempted theft and this crime wave.)