Here is the video of my panel with Michael Moreland and Rick Garnett at a recent conference at Notre Dame, discussing the current condition of free speech. For those disinclined to read the paper below, you can get a rough sense of some of the points in it in the video. I appreciated the chance to chat with Mike and Rick to get a sense of where we agree (on many issues) and perhaps see things a little differently (a smaller, but interesting and important, set of issues) as to the First Amendment.
New paper: “The Sickness Unto Death of the First Amendment”
I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.
The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.
What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.
This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.
Around the Web
Here are some important law-and-religion news stories from around the web:
- The U.S. Departments of Health and Human Services, Labor, and Treasury issued new rules providing exemptions from the Affordable Care Act’s contraceptive coverage mandate to entities that object on the basis of sincerely held religious beliefs.
- The Satanic Temple filed a lawsuit accusing Netflix and Warner Bros. Entertainment of using a statue of the goat-headed deity Baphomet in the series “Chilling Adventures of Sabrina” without authorization.
- The Adam Community Center filed a lawsuit against the City of Troy (M.I.) claiming the City’s Zoning Board of Appeals discriminated against the non-profit Muslim community group by rejecting its plans to build a mosque.
- Kansas Governor-elect Laura Kelly (D) is exploring ways to avoid enforcing a law that protects adoption agencies from being required to place children in homes against their religious beliefs.
- Lake Norman Charter School (Huntersville, N.C.) announced that it will no longer hold its graduation ceremony in a church after receiving a letter from Americans United for the Separation of Church and State alleging constitutional violations.
- Twenty Christians from Early Rain Covenant Church in Chengdu, China, were arrested for preaching and distributing leaflets about Christianity.
- Over 700 religious leaders and organizations signed a letter opposing President Trump’s recent proclamation that bars anyone entering the United States outside of official border crossings from applying for asylum.
- A Muslim woman filed a lawsuit against Walmart claiming she was harassed by managers and coworkers for requesting religious accommodations and fired after reporting the discrimination to Walmart’s corporate office.
- Egyptian Member of Parliament Ismail Nasr al-Din proposed a bill seeking to omit the mention of religion on national identification cards and official state documents.
- A new group, Suma de Actores Sociales (United Social Actors), was recently launched in Mexico City seeking to oppose President-elect Andrés Manuel López Obrador’s efforts to legalize abortion, euthanasia, and marijuana.
- Chicago pastor James MacDonald and Harvest Bible Chapel filed a defamation lawsuit after years of bloggers at a website called “The Elephant’s Debt” criticizing his leadership style and the Church’s finances.
- Bulgarian Baptists peacefully protested new legislation that significantly restricts religious freedom, pending a final vote by the Bulgarian Parliament.
- After the Supreme Court granted certiorari in the Peace Cross case, veterans react to the efforts to tear down the ninety-three-year-old WWI memorial: “Americans of all faith backgrounds should be outraged.”
- U.S. Ambassador-at-Large for International Religious Freedom Sam Brownback, at an event marking the 20th Anniversary of the International Religious Freedom Act, called for renewed activism on protecting religious liberty around the world.
Courtenay, “Rituals for the Dead”
Yesterday’s book note concerned the place, if any remains, of religion in the modern 
university–religious or otherwise. Here is a related entry about the rather more integrated role of religion in the medieval university, in which religious ritual played an important part and in which prayer for deceased colleagues helped to preserve the connection between the living and the dead. But perhaps it isn’t so much that religion as such has left the modern university, as that the nature of university rituals has simply changed to reflect very different religious commitments.
The book is Rituals for the Dead: Religion and Community in the Medieval University of Paris (Notre Dame Press) by William J. Courtenay.
In his fascinating new book, based on the Conway Lectures he delivered at Notre Dame in 2016, William Courtenay examines aspects of the religious life of one medieval institution, the University of Paris, in the thirteenth and fourteenth centuries. In place of the traditional account of teaching programs and curriculum, however, the focus here is on religious observances and the important role that prayers for the dead played in the daily life of masters and students.
Courtenay examines the university as a consortium of sub-units in which the academic and religious life of its members took place, and in which prayers for the dead were a major element. Throughout the book, Courtenay highlights reverence for the dead, which preserved their memory and was believed to reduce the time in purgatory for deceased colleagues and for founders of and donors to colleges. The book also explores the advantages for poor scholars of belonging to a confraternal institution that provided benefits to all members regardless of social background, the areas in which women contributed to the university community, including the founding of colleges, and the growth of Marian piety, seeking her blessing as patron of scholarship and as protector of scholars. Courtenay looks at attempts to offset the inequality between the status of masters and students, rich and poor, and college founders and fellows, in observances concerned with death as well as rewards and punishments in the afterlife.
Rituals for the Dead is the first book-length study of religious life and remembrances for the dead at the medieval University of Paris. Scholars of medieval history will be an eager audience for this title.