By Thomas McAffee (also published at his blog http://thomasmcaffee.com/)
How is speech limited in the daily lives of citizens? As a result of “the chilling effect of mostly invisible restraints, even censorship.” Id. This supposedly frightening occurrence is embodied in hate speech laws and rules; professional pressures on scholars exerted by publishers and academic institutions; pressures on colleges and universities by accrediting bodies “bent on furthering various dogmas of political correctness”; and “campus speech codes.” Id. at 2-3. Also illustrative are “the boycotts, firings, and intimidation that accompanied the Proposition 8 election in California.” Id. at 3. (Even so, he notes that a group of “prominent leaders of various faiths and positions” criticized what they even described as “violence” that had been stoked by “public pronouncements” condemning the LDS church for participating in the Proposition 8 debate. Id.)
Notice that he does not refer, by and large, to legal prohibitions, or even regulations, on speech acts of American citizens. The only possible exception is the criticism of reliance on “hate speech laws.” One would hope for more specificity, given that religious people have been the beneficiaries of hate speech laws much more often than their victim, and such laws almost always just intensify the seriousness of what is already a crime. Oaks also references discrimination against scholars who want to “publish unpopular facts and opinions in professional journals”—their publication submissions receive no publication offers or, alternatively, “academic sanctions or pressures” are imposed on those who do publish. But he does not elaborate on how this relates to free speech. He offers no suggestion that government—or any one else—should intervene to require publication of such views or to prohibit the imposition of pressures. So an issue his argument raises is whether permitting academic publishers to reject submissions, or to receive “pressure” from other academics or bodies, is not itself an essential element of government’s securing freedom of speech. At a more general level, most of us in the higher education academy remain confident that any such pressures are adequately countered by principles of academic independence that are consistently implemented. Oaks referred specifically to the debate of Proposition 8 and gay marriage more generally, and I can certainly confirm that there has been an intensive debate in publications in the legal academy—both in journals and books—on the relevant constitutional, legal, moral, and scientific issues raised by gay rights and gay marriage advocacy. And the notion that accrediting agencies have been motivated in important ways by a goal of “furthering various dogmas of political correctness,” strikes me as sufficiently preposterous to require specificity and documentation.
Considering that the contemporary debate over gay rights, and especially marriage equality—as the Prop 8 example illustrates—figures heavily in Oaks’ discussion, it is at least striking that historically there were at least equal social, cultural, and political pressures to retain twentieth century thought that gays were engaged in horrendous “crimes against nature,” and until the 1970’s to assert that it was the product of mental illness. If the LGBT community reacts aggressively to arguments opposing their cause that seem to them rooted in baseless tradition and outright prejudice, that seems not only unsurprising, but also both a predictable and even useful means of forcing the country to confront what is an appalling record in the treatment of an important minority group of American citizens. Those who now defend conservative religious views against broad arguments for gay rights and marriage equality, seldom even acknowledge that sixty years ago conservative intellectuals defended making homosexuality a crime—as reflected, for example, in the famous Hart/Devlin debate on morals and the criminal law.
Oaks even discerns threats to freedom of speech and freedom of religion in the purely private practices of relying on “boycotts,” “firings,” and what he calls “intimidation”—each of which emerged from the California political debate over Proposition 8. “Free speech is also chilled by organized boycotts to use the marketplace to punish unpopular persons or messages.” One is tempted to respond: “Welcome to the First Amendment!” Boycotts are a standard weapon in political debate, and when kept within reasonable bounds, are themselves protected by the First Amendment. Boycotts were a regular part of the Civil Rights movement, deemed essential to challenge discriminatory practices. They are often enough somewhat ineffective, but they at least convey the strength of the public policy perspectives of some advocates. Just this year, an anti-abortion group in Texas sponsored a boycott of girl scout cookies based on “tweets” that its leaders perceived as sympathetic to “right to choose” advocates. When I was in law school, my bishop asked me to be involved in picketing adult movie theatres in Salt Lake City that was combined with urging a boycott of such theatres. The program succeeded in closing down several such theatres—though I don’t know what the last thirty-five years has brought, having moved away from Utah.
A basic free speech principle is that regulations should generally not be based on the content of the expression—we are naturally skeptical as to whether government officials are competent to decide which ideas are presumptively unacceptable or threatening. So it is hard to think that Oaks would contend that we should allow boycotting porn theatres or businesses that discriminate based on race, but that boycotts are unacceptable when the targets are the girl scouts or mainstream churches. Similarly, private actors often have the “right” to act in ways that others would appropriately view as “chilling” speech. For example, it was not too many years ago that BYU did not renew the employment of a teacher for offering views critical of church leadership in opposing marriage equality. Surely the whole point of this action was to “chill” a certain kind of speech. Note, however, that Oaks would no doubt reject out of hand any suggestion that this act of chilling undermines the First Amendment right to speak freely. Why? Because, whether or not such chilling is a good or bad thing, it is also quite clear that BYU has the First Amendment right, both in political association terms and by reference to freedom of religion, to assert its own views by taking the action it did. The LGBT community, however, holds exactly the same First Amendment interest to act to powerfully influence religious organizations, including the LDS Church, to give more weight to LGBT claims. That it does so, and rather insistently—as with BYU firing its teacher—is not an act that threatens religious liberty. It simply requires religious entities to accept public debate in the manner the balance of society must.
If Oaks discerns some anti-religious animus as characterizing the behavior of some members of the LGBT community, he and the current reader should at least acknowledge that a part of the debate over marriage and gay rights concerns whether the strong views of religious morality held by some of the nation’s citizens should control over LGBT insistence that they are entitled to be treated as equal American citizens. It is certainly true that religious opposition to gay rights and marriage equality is, often enough, a fruit of sincere religious conviction. And the Oaks speech keenly underscored the role of religious advocacy for abolition of slavery, the emancipation proclamation, and even civil rights—an inference being that religion has played an important role in the country’s moral and political debate and progress. But he should equally remember the role of religious advocacy in defending slavery, Jim Crow, anti-miscegenation laws, and racial subordination in general. Surely undue hesitation about “chilling” the speech of those advocating slavery and discrimination in the name of religion would have been quite unjustified.
In the world we all live in, it is credulous to contend that “[a]ccusations of bigotry and animus” leveled at religious conservatives “have a chilling effect on speech and public debate on many important issues.” Id. at 5. I just wrote a blog about Pat Robertson’s response to the inquiry as to whether Jesus would not “supply a cake for a same-sex wedding,” where he said that the Savior’s answer would be negative since “the couple would have been stoned to death before the ceremony could take place.” See McAffee Machinations, The Political Standing of Gays and Evangelicals (April 5, 2014). Robertson was hardly “chilled,” and the culture wars go on. And his own manifest prejudice—sufficient to speak approvingly of a horrendous ancient practice (stoning gays)—did not prompt in him any hesitation to assert that LGBT people “have become the oppressors of those who hold deeply held religious points of view.” It is not surprising that national polls reveal that Americans have a higher opinion of gay people than they do of evangelical Christians. I’m thinking that a similar poll would show that Robertson would get more votes for the role of “oppressor” than would members of the LGBT community. Even the accusation that opponents of LGBT interests are often motivated by religiously-grounded animus—an accusation that Oaks vividly decries—appears to me to be fully justified if one simply pays attention to the attempts to support ordinary business discrimination against gays for “religious” reasons, when the legislature was considering the recently vetoed Arizona law.