From the Conlawprofs list, my reply to a query about whether a city can or should protest a billbiard sign proclaiming that:
"Sharia Law Threatens America"
The context and an explanation of Islamic law appears in the post below, which grows out of an earlier discussion under the caption "Pound Salt," a few days ago.
Response by rs:
Let's say it's dual violation of both freedom of expression as well as the Establishment Clause, the latter being a subset of the former, as I see it, in this instance.
Suppose the sign read: "The Boogie-man is going to get you!"
Are we free to post such signs all over in America?
I'd thought that we were, and that government was out of line to complain about it.
Did government have the right to stifle Eugene V. Debs when he made a speech opposing the draft during WWI?
Holmes voted that it did and Debs got 20 years in the federal pen. Through the study of FA law and history, I'd somehow come to believe that all words are incitements (Holmes) and that the counter to speech that you don't like is speech that you do. [Holmes later reversed position, becoming most supportive of freedom of conscience, once he found out what it was, courtesy of Judge Learned Hand of the Second Circuit (NYC and environs). Nowadays Debs would get a free speech medal, not jail time.]
Under this reasoning, the anti-Sharia billboard is as protected by the FA as anything uttered during the last, hotly contested, presidential campaign. In fact, it's traditional with us to go to extremes in language when irate. Irate is a protected emotion, so long as it expresses itself in opinion and hyperbole, not threats or obscenity. I know, we don't protect emotion, per se, but we do protect certain expressions of it, which is what I'm getting at.
The problem with government getting involved in advocating against some expressions is that this is an exercise of government power, even if government, or a government agent, asks nicely and as politely as possible. When a policeman asks me very politely if I mind moving, I never mind, even if I do, and I move. He's the last person whose displeasure I would like to encourage so long as I'm on his turf, which is everywhere except for when I have him on the witness stand, in which case he has to look out for the likes of us.
Awhile back, in one of the threads about library practice, we saw examples of one or more policy statements put out by a (or the) library association, setting forth standards for buying, stocking, lending, culling, and eliminating, but not burning, acquisitions known as books.
It seems to me that we might well use a statement of proposed policies for municipal and other governments and their agencies and agents suggestive of what positions to take and how to take them when members of the public complain about another member's parading, speechifying, demonstrating, billboard displaying, and such other recurring topics, not excluding school newspapers and room usage, as well as school funding for student activities. I know, we already have one of these and it's called the Constitution, but this requires lawyers when what we'd like to do is to encourage the administrators to go to the FA seminar which addresses such questions and save the handouts, including who to call (not the ACLU, or maybe the ACLU) when being asked for the city to weigh in on whether it should lean on people who say things that other people don't like. The latter need to be brought up to speed, not the former.
Didn't the Clinton administration say it was going to promulgate a set of guidelines for schools that would show where the lines, or grains of sand, were in respect to Freedom of Religion questions? I don't know whatever happened to that. Probably became too controversial too quickly to go into effect, or maybe it's in place.
Perhaps the city, or all cities and townships, could print up a few canned notices to stick to the signpost holding the billboard, or any written message that draws complaints, stating that the message above represents the viewpoint of the people who rented the billboard and does not imply endorsement by any other person, the residents of the city or county, or any government agency. If you would like to carry the matter further, kindly consult your lawyer or call one of the participants of Conlawprofs (telephone number) who will provide you with an explicit and clear-cut statement of what you are allowed to say and what you aren't in this country regardless of whether we are at war in countries that have different religions and other values or not and regardless whether you believe this to be a Christian country governed by the New Testament, mainly, with bits and pieces of the Old Testament thrown in for leavening, except during Passover, of course.
Respectfully,
rs
sfls
Query by Prof. EV:
On Nov 26, 2008, at 9:46 AM, EV wrote:
You can see a copy of the billboard at
http://unitedamericancommittee.org/; the press release about it says:
The billboard, located just south of Luna Pier Rd. on the south bound
side of the Detroit-Toledo Expressway, states "Sharia Law Threatens
America". Sharia Law is a legal system recognized in many Islamic
countries such as the former Taliban regime of Afghanistan, and
currently Saudi Arabia, and is a legal system which dictates beheadings,
stonings, and other punishments for what are listed as crimes under
Sharia such as homosexuality and adultery, and according to critics
views women as inferior granting them little rights. Days after the
billboard went up, emails from angry Muslim residents began coming in to
the offices of the United American Committee, the organization behind
the billboard. "Muslims are the biggest victims of Sharia Law in the
world." remarked Tom Trento, a spokesperson for the UAC. Trento
continued "We hope this message inspires the Muslims of America who came
to this country to escape Sharia, to stand up against it."
A hypothetical: Say that the city asks the billboard company to
take down the billboard, without any overt threats against the company
if the company fails to comply; and say the billboard company indeed
goes along with the city's request. Would this be any different for
constitutional purposes from Cucamonga's actions as to "Imagine No
Religion"? If asking a company to take down "Imagine No Religion" is an
Establishment Clause violation, would asking a company to take down
"Sharia Law Threatens America" likewise be an Establishment Clause
violation?
E.