Possible Limits on Free Speech

The Supreme Court recently made three momentous decisions on Affirmative Action, the forgiveness of student debts for college education and religious freedom. The media and internet have been flooded with differing positions as to the validity of these decisions. I will now add to that abundance by presenting my position on the religious freedom case.[1]

To set the stage for the context for the Supreme court decision on religious freedom, I first remind the reader of the wording of the First Amendment to the U. S. Constitution (highlighting certain words here and later that will be relevant to my reflections).

Congress shall make no law restricting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The context for the recent Supreme Court decision on religious freedom revolved around a Colorado state law that bars businesses open to the public from denying goods and services to people because of race, gender, sexual orientation, and religion (a law similar to laws established in 21 other states that bar discrimination on the basis of sexual orientation).

In 2016, Lorie Smith, an evangelical Christian who owns a Web Design business in Colorado,  challenged this Colorado state law before a lower court. She argued that the Colorado state law that requires her to provide web design services related to the wedding of a same-sex couple denied her the freedom she had under the First Amendment to express herself in speech that reflects her beliefs about same-sex marriage (her belief that God intends for marriage to be limited to a union between a man and a woman, which I will refer to as the “traditional” Christian belief).

This lower court rejected Ms. Smith’s “hypothetical”[2] bid for an exemption to this Colorado State law. The Supreme court subsequently overturned this lower court ruling. Neal Gorsuch, one of the six judges who approved this decision, said that the Colorado state law would force Ms. Smith to create speech that she does not believe, adding that the First Amendment says that all persons are free to think and speak as they wish, not as the government demands.

Sonia Sotomayor, one of the three dissenting judges, wrote that the Supreme court decision provided a “license to discriminate,” wrongfully giving a business open to the public a constitutional right to refuse to serve members of a protected class (in this case LGBT persons whose right to marry was protected in the Obergefell vs. Hodges Supreme court decision that firmly established the right to same-sex marriage in all 50 states and the congressionally approved 2022 Respect for Marriage Act (RMA) that defines marriage as a legal union between individuals that is valid in the state or territory where it was entered into).[3]

There is so much to “unpack” here and I do not have the requisite expertise needed to do all of this unpacking. Therefore, I will limit myself to reflecting on what I perceive as the majority of the Supreme Court justices succumbing to the hyper-individualism that pervades American culture, which leads to the pernicious position that “freedom” means “doing as you please.” The First Amendment does not give any citizen the right to say anything that he/she pleases at any time.

As I have argued elsewhere, I have embraced a “Freedom Within Bounds” ethic wherein every freedom we enjoy has “limits” that reflect an adequate understanding of which acts foster the values that inform the stipulation of that freedom and which acts are destructive of those values.[4] In that light, I will now address the challenging question as to whether there are any limits to the “free speech” that ought to be protected by the First Amendment and what are such possible limits?

I believe there are limits to the “free speech” that ought to protected by the First Amendment right to “free speech.” This right does not mean that you ought to be free to say whatever “pleases you” at any time. The classical example that has been suggested by this limitation is that I am not “free” to shout “fire” in a crowded theatre when there is no fire, because to do so would endanger the well-being of those in attendance. This example can be subsumed in the following four limitations on “free speech” that I personally accept, the first three of which have been proposed by Mark Douglas, a professor of Christian ethics at   Columbia Theological Seminary in Decatur, Georgia.[5]

• Where speech is used to incite, encourage, or valorize violence, it can be restricted or prohibited.
• Where speech is used to end conversations, to silence critics, to shout down unpopular opinions, to harm through deception, or to reject a diversity of voices, it can be restricted or prohibited.
• Where speech is used to categorize people, to generalize and then demean people, to reject and then demonize people, it can be restricted or prohibited.
• Where speech is used to discriminate against any people group, it can be restricted or prohibited.

These are what I believe are four legitimate limitations on the “free speech” that is protected by the First Amendment. They reflect my understanding of the Christian values to which I am committed (more about that later).

But these are my personal beliefs. They are my personal response to the question about possible limits to the “free speech” that is protected by the First Amendment. I am not suggesting here that every Christian or any other American citizen needs to embrace my “personal response.” For example, although both Lorie Smith and I are professing Christians, her response to my question about possible “limits” to “free speech” may well differ from mine (more about that later). And those citizens who embrace a worldview that differs from mine, whether secular or religious, may also have differing “personal responses” to my first question.

In light of this diversity in personal responses to my first question as to whether there are limits to “free speech,” the second vexing question that emerges deals with how we can work together, as co-citizens of the United States, to formulate “public policies” regarding “free speech” when we have such differing views as to the nature of “free speech” and its possible limits. The relevant sub-question for this particular case is to ask whether businesses open to the public can “discriminate” against groups of people who have been “protected” by previous legislative decisions or decisions from the Supreme court.

As you may have guessed by now, my overarching recommendation is that “We need to talk.” Americans need to engage in widespread public discourse about the meaning of “free speech” and possible limitations on speech.[6]

I will elaborate somewhat on this need to talk for three areas of public discourse: conversations between citizens (like Lorie and me) who do not hold an elected political office; conversations between elected political officials regarding appropriate legislative “public policy” actions; and conversations about possible changes in the structure of the Supreme Court in light of massive current dissatisfaction with the manner in which the Supreme Court currently operates.

CONVERSATIONS AMONG CITIZENS NOT HOLDING POLITICAL OFFICE

Your initial question may be: “Which citizens who do not hold political office should be involved in such public conversations.” All of us!

I share this belief in light of a pernicious tendency I detect for many to argue that citizens who have a “religious commitment” should not be included in these conversations because they bring their Christian values to the conversation, while we secularists come to the table devoid of value commitments. Nonsense! No one is value neutral. Everyone comes to the table with foundational value commitments.[7]

This invitation for all citizens who do not hold elected political office to join this conversation is rooted in the Establishment Clause of the U. S. Constitution (Congress shall make no law restricting an establishment an establishment of religion or prohibiting the free exercise thereof). Our Founding Fathers had the wisdom to reject the belief that the United States is a “Christian nation.”[8] Rather, they embraced the belief that the United States should be a “diverse” nation, comprised of citizens holding to differing religious or secular foundational values. This implies that all of us who are not elected political officials should be invited to this conversation, with each of us having the opportunity to express the reasons we have for our positions on the issue at hand that are deeply informed by our foundational value commitments.

And we also need to avoid the pernicious tendency to think that the various people groups in our society are monolithic. Lorie Smith and I both profess commitment to the Christian faith. But in sharp contrast to the traditional Christian position on same-sex marriage the she holds to, I hold to a non-traditional position that God will bless a same-sex marriage where each of the partners made a lifelong covenantal commitment to love each other for a lifetime.[9]

So, the results of this first conversation that I am calling for should reflect the enormous diversity in foundational value commitments both across and within our various people groups about the meaning of “free speech” and the adequacy, or nor of the “limits to free speech” that I or others have proposed.

By this time the reader may conclude that my call for this first conversation surely wins first prize in a “wishful thinking” contest in the tribalistic culture that is rampant in American society; characterized by an “us-versus them” mentality where “me and my people” (e.g., my church or religious denomination, my fraternal organization, my political party, my circle of friends) possess all the truth regarding the issue at hand, and those “other folks” possess none of that truth. Therefore, there is nothing to learn from talking to those other folks. The main obstacle to overcoming this tribalism is the difficulty in finding persons who exhibit that extremely rare combination of holding to their beliefs with deep conviction, even passion, who at the same time are willing to admit that they may be wrong and can learn something valuable by talking to those who disagree with them.

How can we combat this rampant tendency toward tribalism in many people groups, including Christians? As you know by now, my audacious recommendation is that the starting point for such conversations is for everyone to provide a safe and welcoming space for every participant to express his/her beliefs about the issue at hand and, most importantly, the reasons he/she has for holding those beliefs in light of foundational value commitments (since we all believe we have good reasons for our beliefs). After all of these diverse perspectives have been expressed, the participants are prepared to sort through their disagreements toward the goal of uncovering some common ground. If you think that is more wishful thinking, I, somewhat presumptuously, refer you the fact that I have seen this actually accomplished in a loving and respectful manner in the online conversations (eCircles) I have hosted on this website.[10] But it remans to be seen whether such common ground can be uncovered when the issue is the meaning of ‘free speech” and possible “limits” to such “free speech.”

But the purpose for this first round of conversations among citizens who are not elected political officials goes beyond seeking to uncover some common ground regarding the nature of “free speech” and possible limits on such “free speech.” We must now go on to consider how the results of these conversations should be advocated for by such “ordinary citizens” with the politicians who represent them. It is my hope (more wishful thinking?) that these initial conversations among unelected citizens will lead to a groundswell of support for some types of “limits on free speech” that these citizens can advocate for with their elected political representatives. This leads me to the second round of conversations I wish to call for.

CONVERSATIONS AMONG ELECTED POLITICIANS

I believe it falls within the responsibilities of the legislative branch of government to pass bills for “public policy” relative to possible “limits on free speech.”

It is my hope that many conversations among citizens regarding possible limits on free speech will result in strong advocacy for their political representatives to legislatures bills that include the stipulation of appropriate limits.

CONVERSATIONS REGARDING THE SUPREME COURT

One of the wisest decisions made by our Founding Fathers was to establish three branches of government, the Executive, Legislative, and Judicial branches, that can serve as checks and balances on each other. And I believe it is accurate to say that the primary danger that our Democracy faces today is the attempt to negate these checks and balances in the direction of replacing a Democratic form of government with an Autocratic form where there is no check on the wishes of the Executive branch.

Under this three-branch form of government, it has been the role of the Supreme Court to adjudicate cases brought to them regarding perceived errors in public policy decisions made by those serving in the Executive or Legislative branches.

But, the three recent decisions made by the Supreme court and the practices of some of the Justices has raised serious questions as to how well this Court is carrying out their responsibilities. Public confidence in the Supreme Court is extremely low. What kind of conversations can adequately address this situation?

Here is at least a partial litany of the topics that need to be talked about.

#1: Possible federal legislation that establishes a code of ethics for Supreme Court justices.

A need for such a code of ethics has emerged from recent revelations of a few Supreme Court justices reaping benefits from their associations with wealthy individuals associated with cases being considered by the Court, leading to clear conflicts of interest.

#2: Re-consideration of the checks and balances on the Executive, Legislative and Judicial branches of government that were envisioned by our Founding Fathers; drawing out the implications for correcting the present erosion of some of these checks and balances.

#3: Possible restructuring of the Supreme Court, to include consideration of the following options:

• Expanding the number of justices
• Setting term limits for justices

IS THERE HOPE THAT THESE THREE CONVERSATIONS CAN TAKE PLACE?

As I have already acknowledged, I expect that many readers of this Musing will conclude that I am totally out of touch with reality when I propose these three sets of conversations. In our rampant tribalistic culture, the majority of people who have strong disagreements simply have no interest in taking respectfully with those with whom they disagree because they believe that they have already captured the complete truth about the issue at hand (there is nothing to be learned by talking to those who disagree with them).

So, why have I persisted over the past dozen or so years in my attempts to orchestrate loving and respectful conversations among persons who have strong disagreements? I persist because of my deep conviction that to provide a safe and welcoming space for someone who disagrees with me to express that disagreement and the reasons he/she has for a contrary position and to then talk about our disagreements is a deep expression of love for the other person; to which Jesus has called me.

But is there any hope that my persistent efforts will be successful? As I have mentioned there have been some signs of success that are reported in my website. But it is not a promise of success that motivates me to persist. As a follower of Jesus, I am called to be faithful in planting tiny seeds of redemption, leaving the issue of success in God’s hands (as taught in the parable of the Mustard Seed, recorded in Matthew 13:31-32).

THE CHOICES FACED BY LORIE SMITH

I close by going back to a hypothetical decision that Loie Smith could face if the results of the three sets of conversation I propose above lead to a law of the land that prohibits the use of speech to discriminate against any people group, and this law is upheld by the Supreme Court.

I believe that Ms. Smith can still decide that she cannot obey this law because it violates her understanding of what God expects of her. If that is her decision, she must face the consequences of having broken a law of the land, which could include criminal indictmemt.[11]

End Notes

[1]

For my position on the Affirmative Action case, I refer the reader to my previous Musing, titled “Affirmative Action Based on Economic Imbalance,” which can be accessed from the “Previous Musings” icon on the top of my Home Page. In brief, I support the position taken by David Brooks and others that, given general agreement that all college students will benefit from a diverse educational environment, trying to do so by eliminating Affirmative Action will not ameliorate the root problem of the significant imbalance between the number of college students coming from affluent households compared to those coming low- income households. The better approach for attaining the diversity that is important for higher education is to create a balance between the number of affluent students and the number of students who are economically disadvantaged, which will also contribute to greater racial equality.  This approach to creating diversity calls into question the current common practice in elite colleges and universities of legacy and donor-based admissions.

[2]

Her bid was “hypothetical” in that there is no evidence that any same-sex couple sought her services.

[3]

The RMA does not force states to allow same-sex couples to marry, but it but it ensures federal recognition of such marriages.

[4]

For an elaboration of my “Freedom Within Bounds” ethic, see the section titled “My Ethical Project” in the book The Reality of Christian: Strategies for Faith-Learning Integration which I co-edited with David Wolfe. Grand Rapids, MI: Eerdmans, 1987, pp. 220-224.

[5]

For Elaboration on professor Douglas’ position, see pp. 65-69 in my book Reforming American Politics: A Christian Perspective on Moving Past Conflict to Conversation. Canton, MI: Front Edge Publishing, 2019.

[6]

Beyond this particular Supreme Court case, there is an obvious pressing need for talking about possible limits on “free speech” in using social media platforms like Twitter and Facebook. For my reflections on that issue, go to my previous Musing titled “An Open Letter to Elon Musk” that can be accessed in the “Musings Archive” item under the “Musings” icon on the top of my Home Page.

[7]

See Roy A. Clouser, The Myth of Value Neutrality: An Essay on the Hidden Role of Religious Belief in Theories. Notre Dame, IN: Notre Dame university Press, 2005.

[8]

See John Fea, Was America Founded as a Christian Nation? A Historical Introduction. Lousiville, KY: WestminsterJohnKnox, 2016.

[9]

To read my argument for the non-traditional view on same-sex marriage, go to my previous Musing titled “Reflections on Gay Marriage,” which can be accessed by going to the “Previous Musings” item under the “Musings” icon on my Home Page.

[10]

For more elaborative narrative describing how I proceeded with these conversations, including what worked and what didn’t work (the beautiful and the ugly), and my recommendations for how you can make it work in your sphere of influence, I refer you to chapters 7 & 8 in my book Let’s Talk: Bridging Divisive Lines through Inclusive and Respectful Conversations. Eugene, OR: Cascade Books, 2021, pp. 67-103.

[11]

It is my view that the choice that Ms. Smith would have to make can be considered to be a  a “tragic moral choice,” a choice that needs to be made where all the options for action that Ms. Smith faces (obey man-made laws or obey God, as she understands such obedience to God) are destructive and she must choose what she considers to be the “lesser of two evils.” For my reflections on “tragic moral choice,” see chapter 21 (Tragedy, Just War, and Peacemaking) in my book Learning to Listen, Ready to Talk. New York: iUniverse, 2007, pp. 137-154.