I was glad to see Alan's response, and I'll try to respond
myself below. But Alan, what do you think of the three examples I give?
Alan Brownstein writes:
> 1. As I tried to argue in an earlier post, "harm to others" can be an
ambiguous term. If it includes financial costs and emotional
> distress, most rights are protected at least to some extent, even if
doing so imposes such
> consequences on third parties or the general public. Maybe free
exercise rights are different than other rights in this regard -- but
that
> difference needs to be explained and justified. And with due respect,
Eugene, I don't think you have done that. I understand that
> my G-d may not a deity to you. But it is also true for most self
realizing rights or autonomy or dignitary rights that what is important
and
> meaningful to me may be meaningless and irrelevant to you. This is
even true for the non-instrumental value of freedom of speech.
> Maybe X needs to express racially derogatory comments to individuals
of a different race to be self
> -fulfilled. But I don't. And I see virtually no instrumental value in
permitting targeted racist invective. But I accept that some such
> expression is constitutionally protected, notwithstanding the
emotional harm that it causes. Why is that different than protecting
> free exercise rights that "harm" others of a faith committed to tenets
that I do not accept.
I think this is a great explanation for why pure self-expression
isn't an adequate defense for free speech claims, and it's one reason
that the Court has accepted some exceptions from free speech protection
even when the speaker is deriving self-expression benefits from the
speech (e.g., lies, threats, and -- most relevant for Alan's example --
fighting words). But the chief reason the Court has given for
protecting free speech is the social benefits of speech, and the social
harms of giving the government broad power to restrict speech. So I do
think there's substantial social benefit in protecting racist speech
broadly (though not necessarily fighting words, whether racist or not).
> 2. Also, Eugene, for the purpose of your argument, does harm to the
general community have the same analytic consequence as harm to
> specific third parties. The burden of granting some free exercise
exemptions is essentially financial -- it imposes costs on the public
fisc.
> For example, exempting a church from land use regulations limiting
development in a commercial zone has financial consequences for a
> community -- since the church does not pay taxes and does not engage
in activities that provide sales tax revenue to the city. But the costs
> of protecting freedom of speech can also be quite high. For example,
large political demonstrations do not police themselves. Is their a
> reason why we should accept the financial costs of exercising free
speech rights, but not those associated
> with exercising free exercise rights? (I recognize that political
rallies have instrumental value, but certainly, one can argue that
> society benefits in a variety of intangible and tangible ways from the
houses of worship in our communities)
I think that harm to the general community at least often does
qualify as harm -- and that includes financial harm. For instance,
criticism of the draft (short of Brandenburg incitement) is protected,
even when that is likely to lead some people to disobey the draft law;
religious refusal to obey the draft is not protected, see Gillette.
Criticism of the tax system (again, short of incitement) is protected,
even when that is likely to lead to less tax revenue; religious refusal
to pay taxes is not, see Bob Jones. Alan, do you think these results
are wrong?
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