Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median. In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received, the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).
Chick-fil-A and the Coming Clash
That was fast. Last week, Mayor Thomas Menino announced that, because of COO Dan Cathy’s comments in favor of traditional marriage, Boston would not allow Chick-fil-A to open any restaurants in that city. Chicago Mayor Rahm Emanuel followed with similar statements. “Chick-fil-A values are not Chicago values,” he declared. The response from commentators on both the left and right was uniform and swift. Government cannot deny licenses because businesses express political opinions with which government disagrees: that’s what the Free Speech Clause is about. By this week, Menino had backed down, and New York’s Mayor Mike Bloomberg, a supporter of same-sex marriage, had distanced his city from the anti-Chick-fil-A campaign. The crusade to shut down Chick-fil-A seems to have ended, at least for now.
Consumers have every right to organize a boycott because they disapprove of what a firm’s COO has to say. Such boycotts typically fail, however, because of collective action problems. It’s hard to organize these things; most consumers simply don’t care enough about politics to have it drive their purchasing decisions. In the 1990s, conservatives failed when they tried to boycott Disney because of its support for gay rights, and liberals failed when they tried to Read more
“Pussy Riot,” Russian Feminist Punk Band, to Remain in Jail
I don’t know how many CLR Forum readers are following this story, but it’s a major news item in Russia and has drawn attention in the international human rights community as well. Last February, in a protest against Vladimir Putin, a Russian feminist punk band called “Pussy Riot” (above) stormed the altar at the Cathedral of Christ the Savior in Moscow and performed performed a”punk prayer” called “Mother of God, Cast Putin Out.” You can find the video on the internet; it’s pretty juvenile. Authorities arrested three members of the band for the crime of “hooliganism,” which carries a sentence of seven years. They have been in jail since March. A Russian court today extended their pretrial detention for another six months, to January 2013. The imprisonment and prosecution has become a cause célèbre in Russia, pitting the Orthodox Church hierarchy, which resents the cathedral protest as a sacrilege, against liberals, who resent the Orthodox Church’s support for Putin and see the threatened punishment as arbitrary and extreme. Amnesty International has declared the members of Pussy Riot “prisoners of conscience.” Russians themselves are divided about the case. In a recent poll of Muscovites, half said they opposed the prosecution, but 36% approved.
Hanna, “Naked Truth”
From the University of Texas Press, a new book arguing that legal restrictions 
on strip clubs are part of a theocratic plot to supplant constitutional government in America: Judith Lynne Hanna, Naked Truth: Strip Clubs, Democracy, and a Christian Right (2012). Who knew? The publisher’s description follows.
Across America, strip clubs have come under attack by a politically aggressive segment of the Christian Right. Using plausible-sounding but factually untrue arguments about the harmful effects of strip clubs on their communities, the Christian Right has stoked public outrage and incited local and state governments to impose onerous restrictions on the clubs with the intent of dismantling the exotic dance industry. But an even larger agenda is at work, according to Judith Lynne Hanna. InNaked Truth, she builds a convincing case that the attack on exotic dance is part of the activist Christian Right’s “grand design” to supplant constitutional democracy in America with a Bible-based theocracy.
Hanna takes readers onstage, backstage, and into the community and courts to reveal the conflicts, charges, and realities that are playing out at the intersection of erotic fantasy, religion, politics, and law. She explains why exotic dance is a legitimate form of artistic communication and debunks the many myths and untruths that the Christian Right uses to fight strip clubs. Hanna also demonstrates that while the fight happens at the local level, it is part of a national campaign to regulate sexuality and punish those who do not adhere to Scripture-based moral values. Ultimately, she argues, the naked truth is that the separation of church and state is under siege and our civil liberties—free speech, women’s rights, and free enterprise—are at stake.
Temperman on Extreme Speech
Jeroen Temperman (Erasmus University Rotterdam) has posted a new piece on SSRN, Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech. The abstact follows.
Within the European Convention system, judgments have supported legal restrictions on hate speech, but also on blasphemy or religious defamation. The universal human rights instruments, particularly the ICCPR, are increasingly geared towards eradicating hate speech (speech that threatens the rights and freedoms of others), whilst forms of extreme speech that fall short of that category are to be protected rather than countered by states. The Human Rights Committee’s recently adopted General Comment (No. 34) on freedom of expression, provides another strong indication that this is the envisaged way forward: repealing blasphemy and defamation bills, whilst simultaneously increasing the efforts to combat hate speech. This paper argues that it remains ever so important to continue taking stock of the legal justifications for restrictions that are suggested in this area and to scrutinize whether they are in fact sustainable from a human rights perspective –– not only on paper, but also in actual practice. The paper compares and contrasts the universal monitoring bodies’ approach to extreme speech with that of regional monitoring bodies, notably the European Court of Human Rights.
Supreme Court Declines to Hear Candy-Cane Case
The Supreme Court yesterday refused to hear a Fifth Circuit case involving the First Amendment rights of public elementary school students to discuss religion with other students and to distribute religious items, including religiously-themed candy-canes and pencils with messages such as “Jesus is the Reason for the Season,” and “Jesus loves me, this I know, for the Bible tells me so.”
The en banc Fifth Circuit held that students do have such rights, but that the public school administrators who had barred the students from exercising their rights had qualified immunity from suit because the rights were not clearly established.
The (rather long) en banc opinion is Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).
Norton on Using an Establishment Clause Analysis for Free Speech Claims
Helen L. Norton (University of Colorado School of Law) has posted The Equal Protection Implications of Government’s Hateful Speech. The abstract follows.
Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the equal protection clause? Government speech that communicates hostility or animus on the on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important behavior, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms potentially posed by such government expression. The recent emergence of the Court’s government speech doctrine — which to date has emphasized the value of government expression without yet fully addressing its potential costs — offers an important new opportunity to consider the situations in which government speech might offend equal protection values.
Read more
Neo on Free Speech & the Offense of Promoting Hostility Between Different Groups
Jaclyn Ling-chien Neo (Nat’l U. of Singapore, Faculty of Law) has posted Seditious in Singapore! Free Speech and The Offence of Promoting Ill-Will and Hostility between Different Racial Groups. The abstract follows.
In 2005, the archaic laws of sedition were summoned to counteract speech considered offensive to racial and religious groups in Singapore. Under the Sedition Act, it is seditious, inter alia, to promote feelings of ill-will and hostility between different races or classes of the population. In a later case involving religious proselytization, a Christian couple was charged and convicted of sedition under the same section. This article examines this new phenomenon. It investigates the manner in which these laws have been employed and jurisprudentially developed to restrain speech on race and/or religion in Singapore. The article argues that the current state of the law is highly problematic for its adverse impact on free speech as well as for its conceptual confusions with alternative bases for restraining speech. It contends that failure to extricate the existing conceptual confusions is adverse to free speech and community integration in the long run. A threefold legal framework is proposed to provide clearer guidance on inter-racial and inter-religious interaction within the Singaporean society.
Facebook and Google Remove Religious Images in Response to Indian Lawsuits
Reuters reports that Facebook and Google this week removed certain religious images from their Indian websites in response to lawsuits making their way through the Indian courts. Since enactment of a law last year making companies responsible for material they post on their websites, Indian plaintiffs have sued Google and Facebook, as well as other internet companies like Microsoft and Yahoo!, for displaying offensive images of Jesus Christ, the Prophet Muhammad, and Hindu gods and goddesses. In one case, an Indian judge warned that, “like China,” he would order sites blocked if companies did not “take steps to protect religious sensibilities.” Indian free speech advocates have decried the new law and the recent lawsuits, but supporters point to India’s history of sectarian conflict and argue that offensive religious images pose risks to public order.
Sixth Circuit Rules in Favor of Christian University Student in Religious Discrimination Case
A Sixth Circuit panel has ruled unanimously in favor of a Christian university student who claims that Eastern Michigan University expelled her from its graduate counseling program because of her religious beliefs. Julea Ward told the university that as a Christian she could not affirm same-sex relationships (as well as non-marital heterosexual relationships); when a client in her counseling practicum sought counseling about a same-sex relationship, Ward asked that the client be referred to a different counselor. As a result, the university commenced a disciplinary proceeding and eventually expelled her from the program, ostensibly because the university had a blanket policy against students referring clients to other counselors. When Ward sued the university under title VII, claiming the university had dismissed her in violation of her free speech and free exercise rights, the district court granted summary judgment for the university.
Today, the Sixth Circuit reversed. Writing for the panel, Judge Sutton held that a jury could reasonably find that the “no referral” policy was merely a pretext the university had manufactured after the fact. Even worse, a jury could find that it was a poor pretext: there was evidence that the university allowed students to refer clients to other counselors for certain “secular” reasons. A jury could thus find that the no-referrals rule was not neutral with respect to religion; as a result, under Employment Division v. Smith, the university would have to show a compelling interest to justify the rule – which, on the record, seemed very unlikely. The Sixth Circuit distinguished last month’s decision by the Eleventh Circuit in Keeton v. Anderson Wiley, which CLR Forum discussed here. Today’s case is Ward v. Polite (6th Cir., slip op. Jan. 27, 2012).