I confess that this entry is more of a plea for input than anything else. Jacques Berlinerblau, author of a new book on secularism and religious freedom, recently made two disparate comments on a local radio show that together offer some insight into his views of the relationship between freedom of speech and freedom of religion (I think). Religion is often, he remarked, a very good thing in the public sphere, and it has done a lot of good for society. But sometimes it gets out of hand, when religion shows its “dark side,” we have take some sort of action. “A good secular government,” to Berlinerblau, doesn’t support religion under all circumstances. Rather “it takes a much more intelligent and nuanced approach [to the question of religion, and says…‘We need the FBI to monitor that’” when the dark side appears. In discussing freedom of speech, however, in the context of the recent video that sparked protests throughout the Islamic world, we simply have to allow the freedom to insult, as it were. It is highly unfortunate that such videos exist, Berlinerblau acknowledged, but we cannot let the government get into the business of “refereeing” speech.
I don’t want to make this a post about Professor Berlinerblau’s views; in all fairness these were off-the-cuff remarks on a radio show, not excerpts from his book. What I do want to call attention to is the necessirty of choosing where to place restrictions – on speech, on religion, on both, or on neither. Berlinerblau is onto something when he acknowledges that some limits must be imposed, but to him, it would seem, religion should perhaps be more carefully monitored than speech. And again, a disclaimer: he didn’t expand on when and how FBI intervention should occur with religion. Furthermore, he acknowledged that fighting words and yelling ‘fire!’ in a theater are not protected speech, so limits exist on both sides. Still, the FBI should monitor threatening religious groups but not potentially inflammatory speech. But, well, why?
To complicate matters, we can also throw in a competing conception of religious freedom. Many in the Arab world have expressed a view of religious freedom that goes a step further than, ehem, mere FBI surveillance. According to a recent New York Times article, the editor of a Coptic Christian newspaper expressed approbation over the protest, at least “if it had stayed peaceful.” To him – notably, not a Muslim, but also not a Westerner – it may be perfectly reasonable to place restrictions on speech in the name of religious freedom, albeit a particular and very different conception of religious freedom than we typically hold in America. The Times article expressed it as “the right of a community, whether Muslim, Christian or Jewish, to be free from grave insult to its identity and values” (emphasis added).
So here we are: to Berlinerblau, we should monitor religion but save pretty much all speech. To the Coptic newspaper editor – at least if we extrapolate his views (perhaps unfairly, but for the sake of discussion) – we should monitor speech to save religion. This taps into the tension between communal religious freedom (libertas ecclesiae) and individual freedom (libertas personae), as well, of course, so for the moment I’ll stop and simply ask: any thoughts? And given that the American conception of religious freedom is heavily weighted towards libertas personae, to what extent can we expect to deploy it as a universal human right?
I would challenge this sharp distinction between freedom of speech and freedom of religion. Religion is much more than speech, and not all speech is religious. Yet the two are joined at the hip; you can’t have one without the other. The freedoms protected in the First Amendment are all of a piece; that’s why they’re all in one amendment.
The idea of “restrictions on speech/religion in the name of freedom of speech/religion” is not incoherent but cannot be sustained on the terms suggested by the Times. Creating a right not to be offended destroys freedom of speech/religion. This is sometimes called “the heckler’s veto.” The test cases for this were southern cities in the 1950s and 1960s that denied permits for civil rights marches on grounds that they were so offensive to segregationist whites that the peace would inevitably be disturbed. The courts rejected the heckler’s veto resoundingly. I think this is an indispensable concept.
On the other hand, there are some opinions that put the person who holds them at war with society merely by the holding of that opinion. The classic example is the person who believes that his religion requires him to make war on his society and/or its institutions. I have gone back and forth about this over the years, but for a while I have been of the opinion that these opinions may be suppressed. The boundary between speech and action is not absolute and ultimately libertarianism on these issues destroys the necessary social preconditions of moral consensus (including freedom of speech/religion).
Yikes, I had missed this somehow. Thanks Greg! Really helpful, especially the bit on the 50s-60s heckler’s veto matters. I’m still going back on forth on where the various lines are to/can be drawn and need to work out the restrictions on rights in the name of rights thing. Anyway, thanks!
What questions are you wrestling with?