I don't quite understand how Mark's textual argument works.
The Establishment Clause does distinguish *government* actions
vis-a-vis religion from government actions vis-a-vis politics. But that
doesn't justify restricting speech by citizens, such as students.
The Free Exercise Clause does provide for protection for
religion. But why should we think that this means that the Free Speech
Clause is limited to nonreligious speech? The Free Exercise Clause
speaks of religion broadly, not of religious speech in particular -- the
text thus offers no reason to think that speech is somehow dealt with
solely by the Free Exercise Clause. The Free Speech Clause likewise
speaks of speech broadly; it offers no reason to think that religious
speech is less protected than other speech. Certainly as a textual
matter (and Mark claims he's making a textual argument) there's nothing
at all in the text of the First Amendment that suggests that your or my
or our children's religious speech is less protected than any other
speech.
Now if the First Amendment did embody a theory that "religious
belief is private" -- and in the sense of "should not be exposed to
others," or "should not be exposed to others in public places," or
"should not be exposed to others, even by private citizens, on public
property" -- then one might see why religious speech would be a less
protected category. But that's Mark's theory. Nothing in the text of
the First Amendment suggests this is so. To the extent the First
Amendment supports the notion that "religious belief is private," it at
most supports the notion that the *government* ought not have a
religious belief (that's the Establishment Clause, at least under its
modern interpretation). But nothing in the text supports the notion
that individuals' religious speech is somehow less within the "freedom
of speech" than other speech.
Likewise, to the extent that Mark is explaining to me the point
of the Establishment Clause, there are many possible points, from the
literal one that its point was to keep the federal government from
creating a national religion, or interfering with state ones, to the
modern Court's view that its point is to keep the government from having
*its own* religious views. But how one can textually get from "Congress
shall make no law respecting an establishment of religion" to "the
government has extra power to restrict individuals' religious speech" I
can't see.
It seems to me that we have a pretty familiar phenomenon going
on here: Some people believe that certain views -- here, that people
should convert to Christianity -- are offensive and possibly wrong.
They then want to turn those beliefs into government action that
suppresses those views, in this instance in particular places. Faced
with a claim that the speech, even if offensive and wrong, is
constitutionally protected, they turn to supposed constitutional
constraints on the Free Speech Clause itself -- the war power in the WWI
era speech-suppressive cases, democracy in Frankfurter's opinion in
Dennis, the Free Exercise Clause in Jackson's arguments for suppressing
offensive religious speech, the Equal Protection Clause in modern
arguments for suppressing allegedly racist or sexist speech, and more.
I've written about this in "Freedom of Speech and the Constitutional
Tension Method (http://www1.law.ucla.edu/~volokh/tension.htm) -- and
Mark has written about himself in "Old Wine in New Bottles: The
Constitutional Status of Unconstitutional Speech, 48 Vand L Rev 349
(1995)."
But here as there, the trouble is that *the other constitutional
provisions do not actually limit the Free Speech Clause*. The Free
Speech Clause is a limit on the war power, not vice versa. The
Fourteenth Amendment doesn't justify speech restrictions in the cause of
fighting racism any more than it justifies unreasonable searches for
evidence of racist crimes, or abolition of jury trials in prosecutions
for lynchings. And, here, the Establishment Clause, which speaks (at
most) to the views that *the government* may express says nothing to
authorize the government to suppress *private persons'* religious
messages.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
> Sent: Friday, November 05, 2004 4:00 PM
> To: [EMAIL PROTECTED]
> Subject: RE: Lesser protection for religious advocacy
>
>
> This is part of a long argument Eugene and I have had, one we
> will probably not resolve here. it seems to me quite
> apparent from the text of the first amendment that Congress
> intended to deal with speech and religion separately, with an
> understanding that religious proselytizing is somehow
> different that political speech. So we need a coherent
> theory of why this is so. Why is the state not permitted to
> claim that Christianity is false, but may teach that
> Communism is false? One possible reason, religious belief is
> private, political belief is public. One possible inference,
> while the state has an interest in exposing persons to
> different beliefs about politics, there is no state interest
> in challenging private beliefs about religion. Hence,
> proselytizing in a public school, to which attendence is
> required, may be banned as an invasion of privacy. This is
> not intended to be a knock down argument, but until Eugene
> explains the point of the Establishment Clause we cannot
> determine the status of religious proselyzing in public schools.
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