Author: Ophelia Benson

Well, this ‘Christians suing for right to be intolerant‘ thing is certainly a place where free speech rights (and the ‘free exercise’ clause and reason and religion and quite a few other things) get interesting, or difficult, or both.

Ruth Malhotra went to court last month for the right to be intolerant. Malhotra says her Christian faith compels her to speak out against homosexuality. But the Georgia Institute of Technology, where she’s a senior, bans speech that puts down others because of their sexual orientation. Malhotra sees that as an unacceptable infringement on her right to religious expression. So she’s demanding that Georgia Tech revoke its tolerance policy. With her lawsuit, the 22-year-old student joins a growing campaign to force public schools, state colleges and private workplaces to eliminate policies protecting gays and lesbians from harassment…The Rev. Rick Scarborough, a leading evangelical, frames the movement as the civil rights struggle of the 21st century. “Christians,” he said, “are going to have to take a stand for the right to be Christian.”

One problem with Malhotra’s claim is that it’s very disputable whether her Christian ‘faith’ does compel her to speak out against homosexuality. Other Christians don’t experience that compulsion, so that raises the question, is it really the Christian ‘faith’ that does the compelling, or is it something else that feels to Malhotra like her Christian ‘faith’ because she’s never thought to disaggregate her ‘faith’ from her ethical and moral views? And if so is this failure to disaggregate merely a way of dressing up nasty hatreds and yuk-factorism as something admirable and spirichual? My guess would be yes, that is what it is – but then that could just be part of my habit of religion-bashing.

As they step up their legal campaign, conservative Christians face uncertain prospects. The 1st Amendment guarantees Americans “free exercise” of religion. In practice, though, the ground rules shift depending on the situation. In a 2004 case, for instance, an AT&T Broadband employee won the right to express his religious convictions by refusing to sign a pledge to “respect and value the differences among us.” As long as the employee wasn’t harassing co-workers, the company had to make accommodations for his faith, a federal judge in Colorado ruled. That same year, however, a federal judge in Idaho ruled that Hewlett-Packard Co. was justified in firing an employee who posted Bible verses condemning homosexuality on his cubicle. The verses, clearly visible from the hall, harassed gay employees and made it difficult for the company to meet its goal of attracting a diverse workforce, the judge ruled. In the public schools, an Ohio middle school student last year won the right to wear a T-shirt that proclaimed: “Homosexuality is a sin! Islam is a lie! Abortion is murder!” But a teen-ager in Kentucky lost in federal court when he tried to exempt himself from a school program on gay tolerance on the grounds that it violated his religious beliefs.

The ground rules shift depending on the situation. Don’t they though. That’s why these discussions of free speech and cartoons and Irving and Ellis and whatever the latest item is, are always with us.

Todd Gitlin asks a searching question:

Sects are always in need of heretics to blame, expel and punish. First, fervor takes hold, then rigidity. Righteousness dictates uniformity. Dissent seems dangerous, even treasonous. The spirit hardens: You’re either with us or with the evildoers…Why is the left so determined to eat its own? Sometimes it can be explained as the fervor of fighters determined to root out impurities.

Indeed – and the fervor of fighters determined to root out impurities is a very scary thing. And before I get all righteous, I should note that I probably have a tendency that way myself. Perhaps a strong one. There are quite a few ‘impurities’ that I want, if not to root out, at least to avoid. But then – one of them would be the fervor of people who want to root out impurities and enforce orthodoxy and sanctity and conventional wisdom – so I’m confused. Am I a Puritan or an Impuritan or what?

Well, we all have commitments; I suppose one can have commitments and still not be a furious extirpator of impurities. B&W is obviously for some things and against others; if it weren’t it wouldn’t be B&W, it would be just some random collection of material. B&W has always been about something, so naturally there will be a certain amount of orthodoxy about it – but I hope it falls short of heretic-punishing and evildoer-pointing-at. Though who knows – a former fan of B&W tells me he’s gone off it because he doesn’t like my ‘religion-bashing.’ So clearly that’s one heretic right there.

At least as often, though, the sect becomes inflamed not because it has won but because it has lost. Out of weakness, it imagines treason. As it dwindles, it devotes more of its energies to the urge to purge. It loses patience with arguments about ideas. It is already dead certain of how the world works and needs obedience, not disputation. It develops a taste for scurrilous charges and loyalty oaths. To its own dissenters it says not, “Consider this point,” but, “How dare you?”

And that’s where we get off the train – when there is no patience for arguments about ideas; when obedience replaces disputation. Obedience and submission are not what’s wanted, and the replacement of ‘Consider this point’ with ‘How dare you’ is just the tactic I quarrel with several times a day. ‘How dare you’ is another word for Taboo which is another word for unconditional respect, and they all stink; they all stink of smelly little orthodoxy.

I write this not to complain, but to note and bemoan a widespread disrespect for serious disputation. There’s a lot of this disrespect going around, all over the political spectrum. The confusion of manliness with belligerence does not help. The sound-bite culture does not help. The mixture of insinuation, sneering and yelling practiced by Bill O’Reilly, Sean Hannity, Chris Matthews and Michael Moore does not help. A president who tells a reporter, “I don’t feel like I owe anybody an explanation,” and acts on this premise, does not help. Nor does it help when the Bush White House muzzles government scientists who dare report what virtually all their colleagues think about climate change. In claiming that abstention is the best method of preventing sexually transmitted diseases, and that intelligent design deserves to be considered science, the administration enshrines mindlessness rather than rational thought as a governing principle. The sectarian mind is at home everywhere – left, right, you name it. On every front, passion plunges ahead while reason takes its time, cleaning up the mess.

Well, I said B&W was about something, and that’s pretty much what it’s about. One impurity I would like to see a lot less of is this widespread disrespect for serious disputation, and this preference for passion over reason. It just muddies things up.

There’s an interesting discussion about free speech between Eve Garrard and Shalom Lappin at Normblog. Not, this time, via Irving and lying but via Frank Ellis and racist opinions. I had a thought about that earlier discussion with Norm and Eve, and have been meaning to scribble a note on that thought.

The thought was sparked by something Appiah said in a note (note 66 on page 337) in The Ethics of Identity.

The US has a singularly expansive free-expression regime, and yet even here, freedom of expression is tightly corseted, and legitimately so. The First Amendment does not protect a contract killer’s verbal contract; it does not protect a fraudulent or defamatory claim…

Bingo. Just what I said. There is no freedom of speech right to make fraudulent claims; that means deliberate falsification of evidence is not protected free speech. I went on thinking about this, because I still agree with Norm and Eve (and Lipstadt and Evans and lots of people) that (ideally, and leaving aside Austria’s particular situation) Irving shouldn’t go to prison for three years for falsifying evidence. So I decided that what we have here is a different right. If we want to put it in US terms (which we don’t, particularly, it’s just that it might clarify), what we have here is not a First Amendment issue but an Eighth Amendment issue. What we’re worried about here is not a putative right to lie but a disproportionality of punishment. (The Eighth Amendment reads in its entirety: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.)

In fact I don’t really particularly think Irving should (necessarily, ideally, in theory, etc) be punished at all, but I do think he should be prevented. That is, since his falsifications are now well documented, thanks to his bullying rashness in suing Lipstadt, I think they ought to be no more protected than claims that cigarettes promote health. That of course is not to say that I think the state should vet scholarly work for accuracy, or that it should get involved at all, but it is to say that I don’t think Irving does have or should have a legal right to tell lies – and that was the issue we couldn’t agree on.

Eve says this, in reply to Lappin’s* “There is, I think, a clear analogy here between the Ellis case and that of a racist candidate for a jury in the trial of a black defendent.”

I have very mixed feelings about this – on the one hand, your jury example is very convincing, but on the other hand I think that setting a precedent of punishing people for the implications of their views, on the grounds that holding the views is bound to make them act in accordance with those implications, is a bit worrying.

It is worrying, for the reasons that both agree on (intimidation of speech and proper academic functioning), but I would say that what’s at issue (Ellis’s suspension) is not actually punishment, but prevention. Leeds, it seems, suspended him in order to prevent him from having certain effects (which Lappin discusses), not in order to punish him. I think that makes a fairly important difference. Not much of a difference to people in that situation who are suspended and prevented, but a difference to the motivation and intention of the agents.

Another point, about something Lappin goes on to say:

But with the racist juror we are not prepared to take this chance. We regard his or her expressed opinions as sufficient grounds for disqualification from the role of impartial judge in a case involving someone directly affected by the potential juror’s racist attitudes. It is hard to see how we can avoid the same conclusion in the case of a university lecturer entrusted with power over students and colleagues.

I’m not entirely sure of my facts, here, but I don’t think that’s actually true – I don’t think ‘we’ exclude racists from juries, I think it’s one side or the other in the trial that does. I think that it is one side of an adversarial process that does that excluding, while the other side would much prefer to keep the racist. (In pre-Civil Rights Mississippi and other places that wasn’t even an issue, because blacks weren’t even eligible for jury duty [under what form of law or custom I don’t know]; for instance the jury who tried the murderers of Emmet Till was all white men who cheerfully acquitted them.) At any rate, it makes something of a difference to the argument, I think, because jurors are generally excluded not on the basis of fairness but on the basis of tactics. Tactics can just as easily prompt a desire for unfairness, bias, preconceptions. Juries are a rather disquieting subject, actually…

*I’ve just noticed I use first name for one, last name for the other. That’s because I’ve swapped quite a few emails with Eve, so I sort of ‘know’ her; it’s not absent-minded sexism, like those people who talk about Dickens and Hardy and Charlotte and Jane.