A new meme that came to me when reading this story at Volokh about the American Bar Association’s new proposed rule concerning, inter alia, professional misconduct sanctions for lawyers who engage in “verbal conduct” (which sounds rather like speech) that “manifests bias or prejudice” or is “derogatory or demeaning” on matters related to “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed rule applies to the “practice of law,” which includes “participating in bar association, business or social activities in connection with the practice of law.”
Eugene Volokh offers some interesting questions of the proposed rule’s application. I’m more interested in the ABA’s changing view of speech–from a traditional liberal view to an anti-liberal view. Haven’t we been lectured time and again by the titans of the bar (not to mention the Supreme Court’s sanctimonious diatribes on the matter) about the value of offensive ideas? About the civic importance of tolerating the expression of those ideas which we reject. Here’s one little refresher: something from Justice Douglas’s opinion in Terminiello v. City of Chicago, though many others would have sufficed:
The vitality of civil and political institutions in our society depends on free discussion….[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute….Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.
This sort of view could, of course, be challenged. Is it really true that because Terminiello’s advocacy of fascist ideas and race and class hatred might actually persuade people–might convince them to abandon all of those nasty “prejudices and preconceptions”–that the government is therefore powerless to regulate it? Is it better to be governed by fascist ideas than to regulate the consumer’s taste for them?
Right or wrong, it was ostensibly the liberal view. How different the ABA’s approach today seems to be. But I wonder, in this paper, whether the 20th century approach to freedom, and to free speech in particular, was really ever an end in itself, or instead was a gateway (and was even perceived by some of its proponents as a gateway) from one sort of legal culture to another. The classical liberal position is an attractive one in many ways. It’s a pity that so few people have been, and are, really committed to it. Were they at some point? If so, when did that commitment change, and why? There were those in the legal academy and elsewhere who never purported to be liberal and are now feeling pretty darned good. But classical liberalism, as those who know more than I have observed, seems to be on the ropes. Or was this all part of a larger movement away from one culture and toward another? Were most people plying the liberal view actually (even if unwittingly) #NeverLiberal at all?
Fordham University’s Center on Religion and Culture will hold its Russo Family Lecture on Tuesday, May 10, 2016 at 6:00 p.m. The speakers will address the topic “Endangered: Religious Minorities in the Middle East and Their Struggle for Survival,” with a spotlight on these groups’ prospects in the midst of ongoing conflict in the region and the rise of ISIS.
Additional information, including speaker biographies, can be found here.
The Center for Law and Religion’s Year-End Message for 2015-2016 is now available on our website. Among the highlights:
There’s much more in the report, including faculty scholarship and presentations, and a new Global Law Fellows program for foreign PhD students. Please take a look and let us know what you think!
Fordham University’s Orthodox Christian Studies Center will hold a conference on “Tradition, Secularization, Fundamentalism” from Thursday, June 23rd through Saturday, June 25th, 2016. Here is the conference description, from the event’s website:
While the very meaning of the “secular” remains contested, Christians globally are self-identifying in different ways in relation to an imagined secularization, all the while discerning how to live as a tradition. This intersection between tradition, secularization and fundamentalism is especially evident in both post-Communist Catholic/Orthodox countries and the American context, where fundamentalist-like responses have emerged against the perceived threat of the secular.
Additional information and the event schedule can be found here.
For those who are interested, a draft version of my article, “Of Human Dignities,” is now available on SSRN. The article will appear in a forthcoming symposium issue of the Notre Dame Law Review. Here’s the abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae, the Catholic Church’s declaration on religious freedom, explores the conception of human dignity in international human rights law. I argue that, notwithstanding a surface consensus, no generally accepted conception of human dignity exists in contemporary human rights law. Radically different understandings compete against one another and prevent agreement on crucial issues. For example, the Catholic Church and other religious bodies favor objective understandings that tie dignity to external factors beyond personal choice. By contrast, many secular human rights advocates favor subjective definitions that ground dignity in individual will. These conceptions clash, most notably in contemporary debates on traditional values resolutions and same-sex marriage. Similarly, individualist conceptions of dignity, familiar to most of us in the West, compete with corporate conceptions that emphasize the dignity of traditional religions — a clash that plays out in the context of the proselytism and the right to convert. Rather than try to forge agreement on a universal definition of dignity, I argue, we lawyers should commit to a more modest approach, one that accepts the reality of disagreement and finds a humane way to accommodate it.
You can download the paper (more than once!) here.
The U.S. Commission on International Religious Freedom (USCIRF) has released its annual report, finding that that religious freedom is under “serious and sustained assault” across the globe. The report, which covers the period from February 1, 2015-February 29, 2016, highlights religious freedom violations in more than 30 countries, including China, Sudan, North Korea, Nigeria, Pakistan, Iraq and Syria. It cites abuses by both state and non-state entities.