Like many municipal governments, Oakland, California uses a closed e-mail system and several bulletin boards to carry out its business. The city’s employee groups also use the bulletin boards and e-mail system to promote their activities.
In 2003, a group of African-American women working for Oakland organized the Good News Employee Association (GNEA), which they described as “a forum for people of faith to express their views on the contemporary issues of the day.” They prepared a flier explaining that the group honored “the Natural Family, Marriage, and Family Values.” GNEA posted its flier on the city bulletin board and asked for permission to spread more news about it on the city’s e-mail system.
Not only was GNEA’s request to use the e-mail system denied, the flier was taken down and destroyed by city officials. City officials concluded that it violated a city regulation prohibiting “discrimination and/or harassment based on sexual orientation.” The most controversial sentence was: ” Marriage is the foundation of the natural family and sustains family values. ” According to the officials, “the sentence is inflammatory, perhaps even a hate crime.” They warned that statements like this could result in disciplinary action “up to and including termination.” In 2007, the U.S. Ninth Circuit Court of Appeals upheld the city’s action.
The First Amendment is supposed to assure citizens that the government will not interfere with their right to free expression. In recent years, however, lawmakers have tried to protect certain groups—women, racial minorities, religious minorities, and homosexuals—by punishing speech that offends those groups. This is starting to present a serious problem for churches and religious groups. When leaders speak out on moral truths, they may find the government interfering with their teachings and suppressing their speech.
Speech restrictions started appearing on American college campuses in the 1980s. University administrators, intent on providing a nurturing environment for students, put together rules that prohibited jokes or derogatory comments based on race, religion, gender, national origin, or sexual orientation. It was not long before the rules were abused. Students and faculty members were disciplined for unintended insults. This, of course, inhibited open discussion and interfered greatly with the learning process. Fortunately, many of these early codes were declared unconstitutional. Unfortunately, new forms of speech restrictions took their place, often as part of “hate crimes” legislation.
Dr. Gary Cass of the Christian Anti-Defamation Commission says that hate crime laws “are the most significant threat to religious liberty in America” (CADC statement, July 10, 2008). In 2007, the U.S. House of Representatives passed new hate crimes legislation, but it died under the threat of President Bush’s veto. Similar legislation is likely to re-emerge in the future, and it will present a threat to American religious leaders.
First Amendment 101
Before one can fully understand the threat presented by speech regulations, one must understand that the right to free speech does not mean that American citizens are free to say or do anything they want with no consequences. Words have meaning, and others judge us by what we say and do. The First Amendment only means that thegovernment usually cannot punish people for their words.
This idea goes back to the earliest days of our republic. As drafted, the Constitution did not contain a Bill of Rights. When it was sent to the states for ratification, former colonists who had just thrown off King George were worried about creating a new, powerful central authority that might treat them the same way that England had done. They were not prepared to accept the Constitution unless it protected their rights. So they reached an agreement. The Constitution was ratified as written, but the first Congress added a Bill of Rights to restrict the federal government’s authority.
The First Amendment relates to free speech, press, assembly, religion, and the right to petition the government. The British had denied all of these rights to colonists at different times. The Second Amendment provides for the right to keep and bear arms. The British had taken guns away from the colonists as the Revolutionary War approached. The Third Amendment relates to quartering soldiers in the homes of citizens. The British had done that too. In fact, one can go down the entire Bill of Rights and see that this document was designed to assure citizens of the young nation that the new central government would be very limited and would not do the same things that the British had done.
After the Civil War, the Constitution was further amended to make sure that individual state governments did not violate the rights of their citizens. The important realization, however, is that the right to free expression as contemplated in our constitutional scheme is the right to be free from unreasonable governmental interference with speech. When any governmental entity begins taking away the right to speak, there are serious constitutional issues.
American laws provide that when speech crosses the line and constitutes an actual threat, harassment, or an incitement to imminent lawlessness, the government is justified in stopping it. Similarly, reasonable “time, place, and manner” restrictions are constitutional. For example, you can’t shout “fire” in a crowded theater or use a megaphone at midnight in a residential neighborhood. Beyond those exceptions, however, Americans don’t trust any government enough to give it the authority to regulate speech.
You Can’t Say That Here
Many other nations view things differently. Most European nations criminalize hate speech. The precise national laws vary from one country to the next. Consider, however, the German Penal Code. Under Article 131 of that code it is illegal to write or broadcast anything that incites racial hatred or describes “cruel or otherwise inhuman acts of violence in a manner which glorifies or minimizes such acts.” Other sections prohibit insults to personal honor and defaming the memory of the dead. Laws like this result in prosecutions that simply would not take place in the United States. Consider the following:
- In 2008, French actress Brigitte Bardot was convicted of inciting racial/religious hatred based upon a letter she sent to the country’s Interior Minister. The letter objected to Muslims ritually slaughtering sheep by slitting their throats without stunning them first. She also objected to France’s rapidly growing Muslim population trying to impose its culture on France. She was fined 15,000 euros (the fifth such fine imposed on Bardot since 1997).
- British researcher and Holocaust denier David Irving has been expelled from Canada, imprisoned in Austria, and denied a visa to enter New Zealand, all because of his absurd views on the Holocaust.
- In Italy, author Robert Katz was given a 14-month suspended prison sentence and ordered to pay a fine because one of his poorly researched books defamed Pope Pius XII, even though the pontiff had long since passed away and the events in question had taken place a quarter of a century before Katz wrote the book.
- In 2000, a French court ordered that Internet provider Yahoo!, Inc. eliminate French citizens’ access to its online auction service when memorabilia from the Nazi period (such as a Lugar pistol) was being offered. The court subjected Yahoo! to a penalty of 100,000 francs for each day that it failed to comply with the order.
Please note that defending the right to make a statement does not indicate agreement with that statement. As a saying commonly attributed to Voltaire puts it: “I may not agree with what you say, but I will defend to the death your right to say it.”
In 2004, the Organization for Security and Cooperation in Europe (OSCE) met in Paris to examine how governments could fight the harmful effects of hate speech on the Internet. Anti-black, anti-white, anti-Semitic, anti-Islamic, anti-women, anti-American, and every kind of hate in between can be found on the Internet. Moreover, hate groups are not limited to written messages. Hate music, interactive video games, and streaming audio broadcasts can be found on many of the estimated 4,000 hate-oriented Web pages.
With all of that true hate to be concerned about, one non-governmental representative at the Paris meeting argued that evangelical Christian sites that reach out to Jews in an effort to bring them to Christ were anti-Semitic and should be banned from the Internet under hate speech restrictions. More incredibly, when the Russian delegation had its turn to speak, it identified only two Web pages as promoting hate: those run by the Jehovah’s Witnesses and the Hare Krishnas. The argument was that both of these groups purported to set forth “the truth.” According to the Russians, anyone who claimed to know and set forth the truth was necessarily engaged in hate speech.
Speech Police vs. Religion
That is the true concern of the First Amendment: Governments cannot be trusted with the power to restrict speech. If the Russian government had the authority to prohibit speech, it would stop the Jehovah’s Witnesses and the Hare Krishnas under the guise of “hate speech.” That made the American delegation’s point (about not trusting a government with this authority) more strongly than anything a diplomat could have said.
I was once asked to explain the American idea of free speech to a delegation of Muslim leaders from the Middle East. This was not long after the riots following a Danish newspaper’s publication of comics that depicted the Prophet Mohammed. In response to my talk, an ayatollah explained in a heated voice that Islam would never tolerate insults to the prophet, and that Americans should change their concept of acceptable speech. He said that we needed to prohibit anti-Islam speech if not all speech critical of religion. The point from my talk that he did not understand was that when governments have the right to restrict speech, religions almost always lose out. The teachings over which religious leaders are most likely to get into trouble are those related to sexuality and respect for life.
For instance, when Catholic leaders expressed their opinion against abortion during Mexican national debates, politicians and others wanted the federal government to silence them. Cardinal Norberto Rivera, Archbishop of Mexico City, and his spokesman, Father Hugo Valdemar Romero, were accused by several political parties before the Secretaría de Gobernación (Ministry of Internal Affairs) of violating state laws by engaging in the abortion debate. When they were cleared in 2007, Father Romero said that Mexican law imposes unjustifiable restrictions on religious expression and needs to be reformed.
The Anglican Bishop of Chester (England) was investigated by police for saying that homosexuals “could and should seek medical help to ‘reorient’ themselves.” While the British police did not turn the bishop over for prosecution, some in the press took that as a mere shortcoming in the law. The (Liverpool) Daily Post wrote: “Although it is illegal to incite racial hatred, there is at present no equivalent ban on inciting hatred against the lesbian and gay community” (“Bishop to Face Quiz by Police,” November 10, 2003). With greater insight,London Telegraph columnist Peter Simple recognized it as “the unmistakable beginnings of state thought control” (“Thought Control,” November 14, 2003).
Cardinal George Pell, archbishop of Sydney, Australia was cleared of contempt of Parliament charges in 2007, but only after he had been referred to the Upper House Privileges Committee. His offense was remarking that Catholic politicians voting for the Human Cloning Bill would face consequences within the Church for their votes. One of the Australian officials said: “I consider Cardinal Pell’s incursion a clear and arguably contemptuous incursion into deliberations of the elected members of this parliament” (Legislative Assembly debate, June 6, 2007). Cardinal Pell was not intimidated, but what of the next religious leader?
In 2005, Calgary Bishop Fred Henry was brought before the Alberta Human Rights Tribunal because he compared homosexuality to prostitution in a letter he wrote to Calgary’s Catholic community. The complaint against him was eventually withdrawn, but in 2008, an Alberta human rights panel ordered a former Christian youth pastor to apologize for a letter to the editor he wrote opposing homosexual activism. In addition, the panel imposed a lifetime ban on him ever speaking or writing “disparagingly” about homosexuals—in the media, on the Internet, in speaking engagements, or in e-mail. Remarking on the case, Bishop Henry said: “Each judgment emanating out of our various human rights commissions seems to be more brazen and bizarre than the one that preceded it” (“Canadian Government Threatens Web Site Popular With Canadian Pro-Lifers,” The Wanderer, August 9, 2007).
Also in Canada, William Whatcott distributed fliers listing the medical dangers of homosexual acts. The chairman of the Saskatchewan Human Rights Tribunal ruled that Whatcott violated the Human Rights Code, which prohibits the publication and distribution of anything “that promotes hatred, ridicules, belittles or otherwise affronts the dignity of any person on the basis of sexual orientation.” The tribunal ordered Whatcott to pay $17,500 in damages to four homosexuals who sued him for distributing the fliers. Canadian writer Rory Leishman put his finger on the threat:
All Christians should take note. In numerous cases like Whatcott’s, human rights tribunals and the courts have made clear that in their opinion, the equality rights of homosexuals in human rights codes . . trump the ostensible guarantees of freedom of religion in the laws and the Constitution of Canada. Thanks to these judicial rulings, Canadians no longer have a legal right to make a public statement that is liable to expose homosexuals to hatred or contempt, even if the statement is true and reflects the Christian convictions of the speaker. ("Homosexual Activism Threatens Freedom of Speech,"Catholic Insight, July 1, 2005)
One might add that the speech is prohibited even if it might save lives.
In New Zealand, a Christian group called Living Word made two videos that questioned “safe sex” slogans and emphasized the link between AIDS and homosexual behavior. The New Zealand Film and Literature Board of Review banned the films for encouraging hate speech. A court later overturned the ban, but a parliamentary committee attempted to prohibit all Christian videos critical of homosexual activity.
Land of the Free?
So far, most Americans have avoided serious governmental harassment based on their speech alone. On the other hand, when church-related activity extends just beyond speech, the authorities have not been friendly. In 2007, two lesbians filed a complaint in New Jersey because they were denied use of a pavilion for their civil union ceremony. The pavilion was owned by a Methodist ministry. It had been rented out for marriages, but the ministry refused to rent it for civil unions because it is a religious structure, and civil unions are not recognized in the United Methodist Church Book of Discipline. Due to the ministry’s refusal to rent it for the lesbian ceremony, New Jersey revoked the property’s tax-free status.
The Des Moines Human Rights Commission found the local Young Men’s Christian Association in violation of public accommodation laws because it refused to extend “family membership” privileges to a lesbian couple that had entered a civil union in Vermont. The city forced the YMCA to recognize gay and lesbian unions as “families” for membership purposes, or lose over $100,000 in government support.
Perhaps the most notorious example of a state trying to force its view on a church agency comes from Massachusetts, where Boston Catholic Charities ran an adoption agency that had been placing children with families for over 100 years. In 2006, however, the agency decided to abandon its founding mission rather than submit to a state law requiring it to place children with homosexual couples. (A Vatican document from 2003 describes gay adoptions as “gravely immoral.”)
With an apparent willingness to discount religious convictions, it becomes easy to foresee hate speech laws being misused. Michael O’Brien, writing in LifeSiteNews.com, explains that these laws
will be used not so much to protect homosexual persons against unjust discrimination as [they] will be wielded as a cudgel to intimidate those who simply disagree with them and to punish those who are outspoken. . . . [They] will also be used as a wedge to further invade the education systems and potentially invade the life of all families, disrupting the formation of the coming generations. ("Same-Sex ‘Marriage,’ ‘Hate Crimes,’ and the New Totalitarianism," February 28, 2005)
Paved with Good Intentions
Defenders of speech restrictions sometimes argue that the Europeans have a better understanding because “they have seen what can happen.” The point, of course, is to suggest that Hitler and the Holocaust took place because the powers that were did not stop Nazi speech when they had a chance. That is the wrong lesson to take from this history.
The real lesson about speech and the Nazis is that governments cannot be given the power to restrict speech. The Nazis prohibited free speech, and that kept them in power. Freedom of the press, freedom of speech, and the freedom to hold political meetings were all eliminated. By 1937, the German bishops had published so many protests that the Nazis suppressed Catholic publications. During the war, Germans could get the death penalty for listening to Vatican Radio. No one could stand up against the Nazis precisely because they had the ability to regulate speech.
That ability to regulate speech and suppress dissent is seductive, but the results are never good. In 1949, the Federal Communications Commission enacted the Fairness Doctrine to force broadcasters to present different viewpoints on controversial issues. The idea was that this would be the best way to inform the public. Unfortunately, it did not work that way. Many broadcasters simply avoided controversial issues. Because of this chilling effect and the numerous outlets that were by then available to radio and television, the FCC did away with the Fairness Doctrine in 1987.
Recently there has been a good deal of discussion about restoring the Fairness Doctrine. Evangelical Christian leader Dr. James Dobson regularly appears on Focus on the Family radio. He has argued that the Fairness Doctrine would prevent him from addressing political or moral issues in his broadcasts. A statement from his Focus on the Family organization explained: “If resurrected, Christian radio stations discussing topics like abortion likely would have to give airtime to a pro-abortion voice like Planned Parenthood” (CitizenLink, June 23, 2008). The far more likely result would be that Christian broadcasters would simply avoid the issue, to the detriment of their faith.
In earlier years, speech restrictions were typically used to prevent criticism of the reigning governmental powers. Virtually everyone would agree that such restrictions are wrong-headed. Modern suppression of speech is being done for other, seemingly well-intended reasons. Compassionate people detest the use of free speech to spread hate, and they see merit in presenting both sides of an argument. Whatever the stated purpose, however, speech regulations accord too much authority to the government. They threaten religious liberty and create a situation ripe for intimidation. Catholics and all people of faith should be very concerned whenever a government seeks the authority to regulate speech, regardless of the stated justification.
A Troubling Case North of the Border
Even when the claims are ultimately dismissed, defending against hate-speech charges can be quite expensive. In July 2008, the Canadian Human Rights Commission dropped a complaint against Fr. Alphonse de Valk and Catholic Insight magazine stemming from articles written in opposition to same-sex marriage. The magazine, however, incurred over $20,000 in legal expenses. An amount like that could jeopardize many religious publications.
In an editorial posted on the magazine’s Web site, Fr. de Valk commented on the case and the apparently unequal enforcement of Canada’s “human rights” laws:
Rob Wells, the complainant, is a member of the homosexual "Pride Centre," Edmonton. Some years ago, for a number of weeks, he used a spray-painted vehicle to circle around Edmonton’s St. Joseph’s Cathedral at the Sunday afternoon Mass. The slogans compared the Catholic Church to Nazism. No charges were laid against him. He then turned to the Canadian Human Rights Commission to pursue his advocacy after Ottawa had given it jurisdiction over the Internet (2001). Our magazine had opposed the agenda of homosexual activists for legal reforms since our start in 1993; we countered arguments put forward by their activists both inside and outside the courts as well as without and within the Christian community. We used news reports and analyses, research papers, specialized articles on medical, psychological, legal, and sociological consequences. We used scientific data, refuting particular arguments (e.g. that 10 percent of the population is comprised of homosexuals, or that all homosexuals are born that way, etc.). Above all, we communicated the theological reasoning of the Catholic Church which opposes the homosexual way of life as contrary to the will of God the Creator, and, therefore, sinful. Eventually some 108 articles and reports made it onto our Web site. The designation of homosexual activity as a sin opened the road to claims of "discrimination," "bigotry," and "hatred" by Rob Wells, on the basis of section 13(1) of the Canadian Human Rights Act. Where do we stand now? It is clear that the Human Rights Act, related provincial legislation, and the Commissions themselves must be reformed if there is to be a reasonable prospect of peaceful debate on controversial issues, and in particular, issues related to sexual morality. (Catholic Insight.com, July 4, 2008)
As Fr. de Valk warned, proceedings like these “are just a step away from happening in the United States.”