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PaperclipPerfector  11mo ago (text post)   34996 thread views

Culture War Roundup for the week of June 26, 2023

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To call them "completely different issues with completely different jurisprudences" is perhaps an understandable mistake for someone who lacks much background in First Amendment law, but it is still definitely a mistake

Well, I don’t know anything about your background, but I know mine, and I would guess that I have more expertise on First Amendment law than you do. And in fact there is almost no overlap between freedom of religion jurisprudence and freedom of speech jurisprudence. The mere fact that both are fundamental rights to which strict scrutiny is applied means nothing; strict scrutiny applies to all fundamental rights. Note that the Court in 303 Creative did not cite religious freedom cases, and note the complete lack of overlap in Kennedy, the football coach prayer case from last year, between the discussion of whether he had established a violation of his religious expression and his free speech rights.

Well, I don’t know anything about your background, but I know mine, and I would guess that I have more expertise on First Amendment law than you do.

Huh. Why did I think you were a schoolteacher?

Well. I'm a university professor with citations to scholarly work from federal courts in First Amendment cases. The only way you you have more expertise on First Amendment law than I do is if you're a federal judge. If you regularly practice First Amendment law, then you have more practical experience than me, but you might occasionally have reason to consult me on matters of theory if you're writing an appeal. Are you a First Amendment lawyer (or federal judge)? That would be interesting, because some of your takes in this thread strike me as really, really bad. In an effort to avoid a pissing contest I earlier deleted an incredulous question about where you went to law school. But now that you've brought background into it, I really do have to wonder!

And in fact there is almost no overlap between freedom of religion jurisprudence and freedom of speech jurisprudence.

That you were wrong about this when I thought you were a schoolteacher was kinda whatever. If you are a law-trained person, like, get a refund, because this is a really bad take. But you know--don't take my word for it! Consider this:

The Supreme Court has described the First Amendment as protecting certain rights of conscience. This general description can encompass the related protections for both speech and religion: "Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority."

Supreme Court cases recognizing protections for religious speech have explored the precise relationship between the Free Speech and Free Exercise Clauses. The Court has recognized that each Clause protects private religious speech on its own, but in some cases, has invoked both Clauses to outline protections for religious speech. The two Clauses "work in tandem": "[w]here the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities."

The piece goes on to acknowledge a bit of what I think you might be trying to say, but feel free to clarify!

In a later case, though, the Supreme Court emphasized that the First Amendment nonetheless "protects speech and religion by quite different mechanisms," pointing in part to the Establishment Clause. Namely, the Free Speech Clause contemplates that the government will participate in public discussions, as part of the "full expression" of speech. By contrast, while the Free Exercise Clause’s "freedom of conscience and worship . . . has close parallels in the speech provisions of the First Amendment, . . . the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs."

Most of this is Establishment issues, rather than Free Exercise, but

while the Free Speech and the Free Exercise Clauses serve similar goals of preventing government infringement of individual freedom of thought, their protections are not necessarily coextensive.

So, yeah--they're different! There's a difference. Like, obviously, right? But the idea that there is--to quote you directly--"almost no overlap between freedom of religion jurisprudence and freedom of speech jurisprudence" is either wrong, or a motte and bailey on "almost no." Could there be more overlap? Well, yes, I assume there could. Is there "a lot" of overlap? Well, what's "a lot?" If we disagree about what "a lot" is, then how can we mediate that disagreement besides endlessly nitpicking one another's phrasing? You yourself raised Kennedy, which is a case of overlap, so you were clearly aware of some overlap! So why lead with

completely different issues with completely different jurisprudences

??? That was wrong! Demonstrably from your own comment that was wrong! And instead of acknowledging, "okay, I overstated my position, but I do think this specific case we're talking about is sufficiently separate..." etc. etc. you went with a weasel-worded "almost no." This is very lawyerly of you, but at minimum it's horrible Motte etiquette. It's what I'm constantly fielding reports on for your trollish "what do words even mean" contributions to discussions here. You can't even seem to say true things (which you often do!) without making soldiers of your arguments.

To recap: you said that "Freedom of religion and freedom of speech are completely different issues with completely different jurisprudences." This claim was false, and I tried to point that out gently. Everything you've said since then appears to be an attempt to just... pretend you didn't say what you said? I guess? You'd save more face by just owning the mistake.

Some people think based on narrow categories “if X, then Y with the concomitant need to narrowly define X.” Otherwise try more to synthesize disparate issues to understand the common through way.

There are of course differences between freedom of speech cases and freedom of religion. But you have identified (I think correctly) the thruway which is probably a better predictor of outcomes.

  1. I have had tow careers

  2. My law degree is from Berkeley

  3. Yes, of course it is true that "The Supreme Court has described the First Amendment as protecting certain rights of conscience. This general description can encompass the related protections for both speech and religion." But a "general description" is a far cry from the jurisprudence. Freedom of speech cases don't cite free exercise cases, and free exercise cases don't cite free speech cases.

You yourself raised Kennedy, which is a case of overlap

Except, that as I pointed out, it isn't. Duh, Mr. Kennedy made both arguments in the same case, but as I said, when deciding the case there was a complete lack of overlap in the Court's discussion of whether he had established a violation of his religious expression and his free speech rights. The Court cited free speech jurisprudence in the free speech section, and religious expression cases in the religious expression section.

You'd save more face by just owning the mistake.

That is pretty rich coming from someone who refuses to own up to the fact that he erroneously said that 303 Creative is a religious freedom in commerce case.

And, by the way, note that in their cert petition 303 Creative asked the Court to determine "[w]hether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment," but in granting cert, the Court "limited [review] to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." Rather odd, if 303 is a religious freedom case.

But, if makes you happy, instead of saying that they are "completely different issues with completely different jurisprudences", perhaps I should have said that they are 99% different. Or even 95% different. But that does not transform the case into a religious freedom case, given that the Court refused to grant cert on the religious freedom issue.

I have had tow careers

Forgive this question, asked out of genuine ignorance. What is a tow career? I presume it doesn't involve tugboats or tow trucks, but that's about it.

I think it means he's a schoolteacher with a law degree from Berkeley.

A typo. Two

To be honest, I'd be way more interested in hearing from someone who did/does have a tow career.

Any tugboat captains out there? This is your moment to shine!

That is pretty rich coming from someone who refuses to own up to the fact that he erroneously said that 303 Creative is a religious freedom in commerce case.

I did explain, already, that my phrasing there was a somewhat tongue-in-cheek inversion on the many people erroneously insisting (often, in news headlines) that this is an "LGBT rights" case, since of course the jurisprudence on suspect classifications is, let's say, 95% separate from the jurisprudence on Free Speech. Sorry you didn't feel that was sufficient "owning up."

I don't really understand why you're being such a sourpuss about this. I really tried to keep it light when I noticed your initial response, in which you classically ignored any point of interesting substance in favor of seeking boring nits to pick out of some misguided sense of tribal enmity. You always, always make me regret talking to you, in ways that have nothing to do with the substance of our disagreements, and I don't know what to do about that. Often you're pretty good at correcting the ways that people sometimes apply distorted interpretation to various facts, but you seem totally unwilling or unable to apply that ability to your own arguments, or indeed the arguments of anyone you perceive to be your ingroup.

But, if makes you happy, instead of saying that they are "completely different issues with completely different jurisprudences", perhaps I should have said that they are 99% different. Or even 95% different.

Cool cool. Glad we could reach some accord on your error.

I don’t have an ingroup on this issue. It is a very difficult question in many respects (though the stipulations that the webpage is the expression of the owner on the propriety of SSM makes it easier). But that, IMHO, is why people who are knowledgeable about the underlying legal issues have a responsibility to be very clear and very precise when talking about it. There is enough misinformation and quasi-information out there already, and too many people getting bent out of shape re their misunderstanding of what the Court actually did. See, eg, the rhetoric from "my team" re

Bush v Gore and Citizens United, not to mention "CRT bans."

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