Alan: You raise an interesting question, and it might be well
be that intentionally urging someone illegal to do something tomorrow morning,
when such urging is likely to lead to the illegality, is indeed incitement.
But I saw nothing in the stories that suggested that the beatings were a daily
affair. To be sure, the minister's teachings contemplated that the beatings
would take place at some point, and likely within months rather than years.
But I assume that when a Rastafarian minister says that the use of marijuana is
a sacrament, his teachings likewise contemplate that the criminal conduct would
take place at some point, and likely soon - perhaps sooner than, because more
often than, the beatings in this case.
So I suppose that the key question is whether imminence does
extend beyond conduct that's likely to happen today or tomorrow, to conduct
that's likely to happen at some unspecified time within the next several
months. I had thought that it doesn't so extend, and that this is part of why
the Brandenburg exception has been seen as so narrow. Am I mistaken on that?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Sunday, May 13, 2012 8:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: Minister convicted for teaching parishioners "to punish children
by hitting them on the bare buttocks with wooden dowels"
I think where you and I disagree, Eugene, is on the question of what it means
to advocate illegal action "at some indefinite future time." I think if the
pre-condition on which the illegal action is to be based is known to the
speaker and the audience to be certain and to occur in the near future, then
Brandenburg and Hess are satisfied. If a minister urges his congregants to
smoke marijuana, without more, I view that as general advocacy. If the minister
urges his congregants to give marijuana to any child they see when they take
their own kids to school -- when it is clear to everyone that the congregants
take their kids to school everyday and, necessarily, will see other children
when they do so -- I view that as urging imminent unlawful conduct.
It's not just that the illegal conduct would occur on many occasions. It is
that the condition which will trigger the illegal action is certain and that
the first of those many occasions when the illegal conduct is to occur is going
to be in the very near future.
Do you think a minister could be prosecuted consistent with the First Amendment
under my hypothetical, Eugene?
Alan
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
[vol...@law.ucla.edu]
Sent: Sunday, May 13, 2012 7:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: Minister convicted for teaching parishioners "to punish children
by hitting them on the bare buttocks with wooden dowels"
Alan: So if a minister preaches the propriety of the frequent
use of marijuana (as I'm told the Rastafarians do), he could be prosecuted as
well, on the theory that people are likely to act on it some time soon? I
would think that Hess v. Indiana's distinction between advocacy of imminent
conduct and "advocacy of illegal action at some indefinite future time" would
be helpful to both the pro-marijuana minister and the pro-beating-children
minister. Or is it really the case that advocating the general propriety of
illegal conduct can be criminalized, so long as the illegal conduct would take
place relatively often?
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Sunday, May 13, 2012 4:53 PM
To: Law & Religion issues for Law Academics
Subject: RE: Minister convicted for teaching parishioners "to punish children
by hitting them on the bare buttocks with wooden dowels"
The news story doesn't give us a lot of detail as to exactly what the pastor
said in this case nor does it tell us much about his parishioners. But if the
pastor's instructions to his parishioners are to do something unlawful if a
certain pre-condition is satisfied and the pre-condition is sufficiently common
that it will almost certainly occur in the very near future, I'm not sure I see
the Brandenburg problem. Infants will cry and will fail to sit still. If a
speaker instructs a group of parents with very young children to stick their
children's hand in boiling water if they cry or fail to sit still, that seems
pretty imminent to me.
If the parishioners follow his instructions and he ratifies their conduct and
tells them to continue to do so, I think that's more than abstract advocacy.
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
[vol...@law.ucla.edu]
Sent: Sunday, May 13, 2012 4:31 PM
To: Law & Religion issues for Law Academics
Subject: RE: Minister convicted for teaching parishioners "to punish children
by hitting them on the bare buttocks with wooden dowels"
I don't think that strict scrutiny can justify restrictions
that are forbidden by Brandenburg. After all, in most advocacy-of-crime cases
there's a compelling interest in preventing crime, and a plausible argument
that alternatives to suppression of advocacy - e.g., counterspeech and
punishment of the criminal conduct - aren't going to be as effective as
suppression (plus those alternatives). Brandenburg, I think, is a judgment
that speech restriction is just not a permissible means of serving the
compelling interests, see generally http://www.law.ucla.edu/volokh/scrutiny.htm
pts. II.B<http://www.law.ucla.edu/volokh/scrutiny.htm%20pts.%20II.B> & III
(Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144
U. Pa. L. Rev. 2417 (1997)). And I think that's as true for speech advocating
child abuse as for speech praising rioters, speech advocating the propriety of
holy war, and the like.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Sunday, May 13, 2012 4:24 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Minister convicted for teaching parishioners "to punish children
by hitting them on the bare buttocks with wooden dowels"
Eugene-what about strict scrutiny?
I think there is a compelling interest in protecting children from being hit
with wooden dowels
Given the hidden nature of most such abuse, there is unlikely to be a lesser
restrictive method to ensure children are not harmed.
Marci
On May 13, 2012, at 7:10 PM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
I would think that such a conviction would likely be
unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even
without regard to any special religious freedom claim (note that Wisconsin
courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to
me that teaching parishioners the propriety of such conduct - even illegal
conduct - doesn't fit within the Brandenburg exception, because it isn't
intended to yield imminent lawless conduct; and I don't think the general
teachings would fit within the United States v. Williams solicitation
exception, since no specific act is being discussed. On the other hand, it's
possible that pastoral counseling of a specific parent, telling the parent to
engage in illegal child abuse (assuming the discipline is indeed illegal) might
qualify as solicitation of crime and not just abstract advocacy. Or is this
analysis mistaken?
Relatedly, could ministers of churches that teach that
marijuana is a sacrament be prosecuted for conspiracy to engage in criminal
possession or receipt of marijuana? Could imams who preach the propriety of
jihad be prosecuted for conspiracy to engage in jihad, just based on the
teaching alone?
Eugene
http://host.madison.com/wsj/news/local/crime_and_courts/motion-to-dismiss-charges-against-black-earth-pastor-denied/article_3c17db6a-9b01-11e1-967a-001a4bcf887a.html
A Dane County judge on Thursday denied a motion to dismiss charges against a
Black Earth pastor convicted of conspiracy to commit child abuse for advocating
the use of wooden rods to spank children as young as 2 months old.
Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in
March of eight counts of conspiracy to commit child abuse for instructing
church members to punish children by hitting them on the bare buttocks with
wooden dowels to teach them to behave correctly, in keeping with the church's
literal interpretation of the Bible.
The motion to dismiss the charges alleged Caminiti had been deprived of his
constitutional right to religious freedom.
Circuit Judge Maryann Sumi found that Caminiti had "a sincerely held religious
belief" as a Christian fundamentalist that requires using a rod to discipline
children beginning at a young age. But Sumi said Caminiti failed to show the
state's child abuse statute "places a burden on his sincerely held religious
belief."
"Scripture doesn't specify how and when the rod should be used," Sumi said,
adding that Caminiti also was willing to modify the church's practices to
comply with the law....
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