Posted on by Marc O. DeGirolami

Inazu on the Idea of the Public Forum

John Inazu has posted a very thoughtful and interesting piece, The First Amendment’s Public Forum. The abstract and some rapid reactions to the piece follow:

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.”

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

This piece continues and amplifies on John’s important work on the freedom of assembly. I have often wondered (and I suspect John may also wonder) whether the increasing muscularity of speech doctrine–verging, in my own view, on what might reasonably called absolutism–has contributed (or is contributing) to the weakening of the other freedoms guaranteed by the First Amendment. One need not hold Robert Bork’s view of the speech clause to suspect that this is happening. One can see the phenomenon with respect to the religion clauses–for example, in the claim that corporations cannot “exercise” religion because corporations cannot “believe” anything, or have no “consciences” (that very claim about corporations was rejected by the Court as to speech itself, though Justice John Paul Stevens as well as most of the rest of the legal academy are still up in arms about it). John’s own relational account of the freedom of assembly emphasizes the value of congregation and consociation–of the act of gathering together for a social purpose–which is rather a distinct good than whatever speech concerns are at issue. One might add that the value of place–of having a place, and perhaps even (and more controversially?) of knowing one’s place–are important First Amendment considerations.

Posted on by Mark Movsesian · 1 Comment

Good Thing Nobody Had a Smartphone at the Last Supper

On Twitter this morning, the Huff Post seeks your Ash Wednesday Selfies:

HuffPost Religion ‏@HuffPostRelig Will you be observing Ash Wednesday? Tweet your selfies to @HuffPostRelig with the hashtag #MyAshes or #Ashtag and we may share!

Good grief.

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Mangion, “Contested Identities”

Next month, Manchester University Press will publish Contested Identities by Carmen Mangion (Birkbeck College, University of London). The publisher’s description follows.

English Roman Catholic women’s congregations are an enigma of nineteenth-century social history. Over ten thousand nuns and sisters, establishing and managing significant Catholic educational, health care and social welfare institutions in England and Wales, have virtually disappeared from history. Despite their exclusion from historical texts, these women featured prominently in the public and private sphere. Intertwining the complexities of class with the notion of ethnicity, Contested identities examines the relationship between English and Irish-born sisters. This study is relevant not only to understanding women religious and Catholicism in nineteenth-century England and Wales, but also to our understanding of the role of women in the public and private sphere, dealing with issues still resonant today. Contributing to the larger story of the agency of nineteenth-century women and the broader transformation of English society, this book will appeal to scholars and students of social, cultural, gender and religious history.

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Cox, “American Christianity”

Next month, the University of Texas Press will publish American Christianity by Stephen Cox (University of California, San Diego). The publisher’s description follows. American Christianity

Christianity takes an astonishing variety of forms in America, from churches that cherish traditional modes of worship to evangelical churches and fellowships, Pentecostal churches, social-action churches, megachurches, and apocalyptic churches—congregations ministering to believers of diverse ethnicities, social classes, and sexual orientations. Nor is this diversity a recent phenomenon, despite many Americans’ nostalgia for an undeviating “faith of our fathers” in the days of yore. Rather, as Stephen Cox argues in this thought-provoking book, American Christianity is a revolution that is always happening, and always needs to happen. The old-time religion always has to be made new, and that is what Americans have been doing throughout their history.

American Christianity is an engaging book, wide ranging and well informed, in touch with the living reality of America’s diverse traditions and with the surprising ways in which they have developed. Radical and unpredictable change, Cox argues, is one of the few dependable features of Christianity in America. He explores how both the Catholic Church and the mainline Protestant churches have evolved in ways that would make them seem alien to their adherents in past centuries. He traces the rise of uniquely American movements, from the Mormons to the Seventh-day Adventists and Jehovah’s Witnesses, and brings to life the vivid personalities—Aimee Semple McPherson, Billy Sunday, and many others—who have taken the gospel to the masses. He sheds new light on such issues as American Christians’ intense but constantly changing political involvements, their controversial revisions in the style and substance of worship, and their chronic expectation that God is about to intervene conclusively in human life. Asserting that “a church that doesn’t promise new beginnings can never prosper in America,” Cox demonstrates that American Christianity must be seen not as a sociological phenomenon but as the ever-changing story of individual people seeking their own connections with God, constantly reinventing their religion, making it more volatile, more colorful, and more fascinating.