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You make the mistake of thinking that the alternatives are tolerating objectionable speech and banning objectionable speech.

To those who have something that needs to be said in protest, the alternatives are free speech and open warfare.

See, it was the idea of our founding fathers to protect objectionable speech, knowing that the preferred antidote to such speech is more speech, not religious warfare.

It seems that the religious folks out there still prefer the Dark Ages. But if we are going to modify the First Amendment, I suggest we eliminate the right to all objectionable religious speech, like public prayer!

Steve Shiffrin

Thanks, Clark. I had no clue that the Westboro theology was this
disgusting. I do think that speech designed to terrorize is speech for
first amendment purposes, but it has too little value to merit
protection. The same, for example, applies to threats. I very much look
forward to your post.

Patrick S. O'Donnell


Religions, in the conventional or usual sense of that term, were not responsible for the horrors of colonialism in the Belgian Congo, for World Wars I and II, for the Stalinist gulags, for Nazi concentration camps, for the Great Famine (during the 'Great Leap Forward) that killed 30-50 million people during in China from 1958-1962, for the widespread bombing of civilians by all sides during WW II, including the firebombing of Japanese cities and the dropping of atomic bombs on Hiroshima and Nagasaki, for the well-known genocides in Cambodia, Rwanda, the Balkans and elswhere in the twentieth and early twenty-first century (e.g., Darfur).

Yes, people with religious worldviews have committed violence on a grand scale as well, in India, in Ireland, in Sri Lanka, etc., but often the specific reasons for such violence are only incidentally linked to religion , the causes of such conflicts having to do with other things: land, political representation and power, etc.

In short, your ongoing animus against religion as expressed on this blog is often out of place and out of proportion, all things considered, just as ranting against "the State" in general is pointless because too blunt and crude. In short, polemics against "religion" in general serve little value or purpose because they're more often than not indiscrimate and ill-informed. Religion CAN be the "opium" of the people, or the "sigh of the oppressed creature," as Marx thought, for example, and religion often does involve forms of "projection" as Freud argued, but such reductionist observations hardly suffice to account for or explain religions generally, apart from the fact that they depend upon contestable presuppositions and assumptions.

Patrick S. O'Donnell

The government, or at least democratic governments, ostensibly represent "the people," and many of those people find religious worldviews integral to their conceptions of individual (or personal) and collective identity. It thus behooves governments to tolerate, and respect, which may mean to further, many of the forms of religious expression that exist among the citizenry, who after all, instituted government to recognize, protect, and thus to some degree and in some ways incarnate their values, their beliefs, their interests, and so on. Now even if only a minority happens to be religious, the respect for basic human rights, the claim that the government is instituted on behalf of all the people, i.e., not just a "majority," finds ample reason to protect the fundamental and enduring interests of those citizens. As George Sher has well argued, governments are invariably and unavoidably involved (overtly and less so) in promoting conceptions of "the good," and we thus have sufficient prima facie and presumptive reason to find governments promoting at least generalizable conceptions (thus no 'single conception') of the good (cf. Rawls's notion of an 'overlapping consensus') among citizens in a way that respect basic human rights, individual moral autonomy (as understood, say, by Kwame Anthony Appiah, or David L. Norton, or a Martha Nussbaum...) and democratic principles, methods and practices. Religious worldviews, hence religious beliefs and praxis, are often the very marrow of those conceptions of the good.


So what the hell is this "government interest in protecting mourners"? Is it like the government interest in protecting circumcizers, genuflectors and infant baptizers? Or more like the Muslim government interest in protecting stoning and mutilation and persecution of blasphemers?

Religion ruins everything.

Clark West

Thank you, Steve, both for linking to Professor Dorf's very intriguing post, and for your thoughts about why Alito stood alone. My own take, after reading the transcript of the oral arguments and knowing something of the Primitive Baptist tradition out of which Phelps comes, is that the failure to understand Westboro's theology and to press Margie Phelps on what the actual intent of their protest was, hampered the justices in making some of the distinctions many of them clearly wanted to make. (Margie Phelps, by the way, struck me in her interactions with the justices as a rather brilliant attorney, even if morally repulsive!)
I'm planning on writing a post for this week in which I take up Phelps' theology--the very essence of which is not to persuade, not to enter 'public debate', not even to perform a speech act, or to 'bring to repentance', but is in fact to further traumatize and terrorize as many people as they can, to begin the process of sending to hell everyone outside their church which is what they are convinced their god is doing and wants them to do. If they inflict maximum emotional terror (yes, as I think Roberts put it, 'distress' is too mean a word!) they have done their job, even more so if the response is violent hatred against them. It is an internally self-sustaining symbolically closed system, as recent scholarly research on their church has shown, and is not in the least interested in the first amendment except as a means to further their verbal acts of terror.

IIED is its very goal, and in my view, theirs is the very essence of 'private' speech, if speech is at all a coherent way of speaking of what they do. I am not sure this matters legally, but at the very least, common sense and theological rigor seem to me to demand that we reject Phelps' theology as speech if we think that speech must of its nature mean to communicate, not merely to terrorize.

Well, I've promised a lot--I'll see how much I can deliver later this week!

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