Limiting Free Speech (51): Speech That Intends to Get Someone Fired

What if someone tells an embarrassing or potentially harmful truth about someone else to his or her employer, with the intention of convincing the employer to fire this person? Are we allowed to limit the speech rights of the speaker in question (for example, by way of the imposition of a fine, the payment of damages to the person fired or an order to remove internet pages)? And does it matter if the speaker addresses only the employer or the public at large (perhaps in the former case we’re not really dealing with free speech)?

Take this example:

Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.” (source)

Let’s assume that we’re not dealing here with incitement to commit illegal acts. Discrimination of homosexuals is often illegal, but many religious institutions are exempt from such a rule. (Whether or not that’s a good thing is another matter, briefly discussed here). Hence if silencing this particular speaker is indeed a warranted exception to free speech then it must be one that’s different from the established exception regarding speech that incites illegal activity.

Let’s also assume that we’re not dealing with libel. Perhaps the target in this particular case is indeed a homosexual and has therefore good reason to fear that his Catholic employer will fire him if this fact about him becomes known. Libel is usually defined as a false claim intended to harm someone’s image and reputation, and so that’s not what our example is about. The intended harm is dismissal of the teacher. Like incitement to commit illegal acts, libel is an established exception to free speech rights, and one that I also want to exclude from the current discussion. What I want to do here is see whether speech that intends to get someone fired and that is neither libel nor incitement to commit illegal acts, should always be protected.

Now, speech that incites employers to fire people does impose certain demonstrable harms: the target’s right to privacy is violated, as is his or her right to a decent standard of living (in the case in which the target may not find another job in the short term). So, a priori we could have an argument here in favor of prohibiting speech that incites employers to fire people. Normally, limits to free speech can be acceptable if they are necessary in order to avoid greater harm to other human rights.

However, if we want to allow limits on speech that incites employers to fire people, would we not also be forced to accept the prohibition of public protest aimed at getting a racist or sexist radio host fired? That seems to go very far. Maybe we can limit the free speech exception as follows: in the Catholic school case the speech was directed at a single person – the employer – whereas in the case of public protest the audience is much larger. Still, that’s not a very promising route. The inciter in the Catholic school case may drum up support among other parents or write to the local Catholic newspaper if a private letter to the employer doesn’t do the job.

It’s true that the nature of the audience and the circumstances in which speech occurs can make a difference – hate speech in an obscure periodical should not necessarily be forbidden, but hate speech in front of an excited mob about to attack someone is different. But the same difference doesn’t apply here I think.

In the case of speech that incites employers to fire people – whether it’s private speech or public speech – I would prefer not to impose limits on speech but rather change the law so that it is illegal to fire people for their beliefs, words or lifestyle. And yes, that may include revoking religious exemptions to employment discrimination. After all, how exactly does it harm someone’s religious freedom if his or her children are educated by a homosexual teacher?

More posts in this series are here.

Religion and Human Rights (29): When Freedom of Association and Anti-Discrimination Clash

In a recent court case in the US, a Christian student group objected to a university decision to withdraw recognition of the group. This withdrawal was justified by the university on the basis of the group’s discrimination of gays. Gays can only join the group when they “repent”. This policy by the group was deemed discriminatory by the university and in violation of its anti-discrimination policy. Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.

The group claimed that the university decision violated it’s freedom of association and freedom of religion. It also claimed that the university’s non-discrimination policy backfired and in fact created a new instance of discrimination, namely discrimination based on religion (because the group felt singled out; a Hispanic group excluding non-Hispanics did not suffer the same fate). The university contested this reasoning, claiming that the group was free to organize its activities elsewhere.

In my opinion, the Christian group is clearly bigoted and deserves condemnation for that, but groups should be free to decide who can and cannot become a member. And so there’s nothing wrong, in principle, with Christian groups banning gays. Forcing a group to accept members who violate the group’s fundamental rules and principles would empty freedom of association of any content because it would lead to the dissipation of the group’s identity. There is no group without identity, and hence no freedom of association without identity. And identity by definition means exclusion. Communist groups that are forced to accept capitalist members, or neo-Nazi groups that are forced to accept Jews, cease to exist as coherent groups. In case of religious groups, this would also violate the groups’ freedom of religion.

Also, the claim by gays that they are discriminated is weakened by the fact that they have numerous alternatives. It’s not like their non-membership of the Christian group produces a lot of harm to them, in terms of diminished choices, missed opportunities, lost resources etc.

An aside: I always fail to understand why people would want to join groups where they are manifestly unwelcome, except perhaps to cause a stir. Of course, this is no argument in favor or against any of the previous claims, except perhaps a pragmatic argument against the university’s position: if indeed gays will not join the anti-gay Christian group because they don’t have an incentive to associate with people who are hostile, then there’s no reason for the university to move against the group, since no discrimination will occur.

How is this different from what libertarians often claim about private discrimination? (Rand Paul for example recently claimed that the Civil Rights Act should not make “private segregation” illegal and should not force white restaurant owners to accept black customers). The difference is that segregation and Jim Crow were so widespread that blacks had considerably fewer options and suffered considerable disadvantage. The same isn’t true of gays on campus: there are enough associations that accept them. Hence, the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.

Another argument in favor of the Christian group: non-discrimination policies have the laudable goal of promoting diversity and allowing every member of society to have the same options and choices. But how do you promote diversity if you don’t allow groups to have a coherent identity? And how do you promote options when you make it impossible for Christians to join a “truly” Christian group?

All this doesn’t mean that there will never be cases in which actions against groups are justified. In some instances, the demands of non-discrimination will outweigh the rights to freedom of association and religion. See here and here for more information on the need to balance different rights against each other.

Lies, Damned Lies, and Statistics (23): The Omitted Variable Bias, Ctd.

You see a correlation between two variables, for example clever people wear fancy clothes. Then you assume that one variable must cause the other, in our case: a higher intellect gives people also a better sense of aesthetic taste, or good taste in clothing somehow also makes people smarter. In fact, you may be overlooking a third variable which explains the other two, as well as their correlation. In our case: clever people earn more money, which makes it easier to buy your clothes in shops which help you with your aesthetics.

Here’s an example from Nate Silver’s blog:

Gallup has some interesting data out on the percentage of Americans who pay a lot of attention to political news. Although the share of Americans following politics has increased substantially among partisans of all sides, it is considerably higher among Republicans than among Democrats:

The omitted variable here is age, and the data should be corrected for it in order to properly compare these two populations.

News tends to be consumed by people who are older and wealthier, which is more characteristic of Republicans than Democrats.

People don’t read more or less news because they are Republicans or Democrats. And here’s another one from Matthew Yglesias’ blog:

It’s true that surveys indicate that gay marriage is wildly popular among DC whites and moderately unpopular among DC blacks, but I think it’s a bit misleading to really see this as a “racial divide”. Nobody would be surprised to learn about a community where college educated people had substantially more left-wing views on gay rights than did working class people. And it just happens to be the case that there are hardly any working class white people living in DC. Meanwhile, with a 34-48 pro-con split it’s hardly as if black Washington stands uniformly in opposition—there’s a division of views reflecting the diverse nature of the city’s black population.

LGBT Rights (5): Same-Sex Marriage and the Rights of a Democratic Majority

The (in)famous Prop 8, banning same-sex marriage in California, was approved by a democratic majority. This raises the interesting question whether democracy means something more than majority rule. Does democracy mean that a majority can decide whatever it wants? I don’t think so. That would not be a democracy but a tyranny of the majority. Democracy is much more than simple majority rule. (By the way, dictatorships can also have majority approval, but that doesn’t make them democracies).

The decisions of a majority have to take place within a framework of rules. These rules have two functions.

  • First, they facilitate the decision making (e.g. rules on free speech, freedom of assembly and association etc.), and therefore they cannot, logically, be violated without undermining the whole system.
  • Secondly, these rules limit the kind of decisions that can be taken by the majority. For instance, majorities cannot decide to violate the human rights of a minority. Why? Because these latter rules are basically the same as the former ones. The rules necessary for the successful operation of majority rule are the same, or at least profoundly connected to, the rules granting protection to the minorities. This is called the interdependence of human rights.

If a democratic majority decides to enact laws or policies that violate the human rights of minorities (or individuals, or even majorities), then courts have to step in and enforce the rules of the game. This is not judicial activism by anti-democratic and elitist judges infringing on the democratic rights of the people. It’s judges enforcing democracy, but democracy as something more and better than tyranny of the majority.

We have a clear example of all this in the case of Prop 8 (unfortunately, the courts don’t seem to be playing their constitutional role, yet):

It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution. The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation. Ted Olson (source)

There is some discussion on whether the courts should be playing a role in this. Some gay rights advocates insist that it is better to work on public opinion and hope for a general public approval of same-sex marriage in the decades to come. Of course this is a useful strategy, if perhaps somewhat naive (who knows what would have happened to the civil rights movement had the same strategy been applied then). However, the dismissal of any role for the courts, for example because of the fear of a popular backlash against equal rights enforced by unelected courts, amounts to a profound misunderstanding of democracy.

Religion and Human Rights (15): Same-Sex Marriage and Religious Liberty

From someone on the political “right”:

Changes in the law that bring a little happiness, resolve some painful practical injustices (from hospital visitation rights to the ability to benefit from the spousal Death Tax exemption) and help take the previously marginalized deeper into “regular” society should, probably, be seen as a Good Thing.

The role of the Right should be to shape the way that this change takes place, by building in, for example, free speech and “conscientious objection” protections to those who do not go along. If that’s the aim, a position of outright opposition is not the best place to begin. Andrew Stuttaford (source)

This view on same-sex marriage is a welcome change. Unfortunately, many in the religious right still adopt prejudiced and bigoted opinions regarding gays (which doesn’t mean that all on the right are prejudiced or that prejudice is the monopoly of the right). Of course, everyone is entitled to his or her opinions, bigoted or not. That’s a fundamental freedom. And when these opinions are grounded in religious morality, the issue is not only free speech but also religous liberty. The problem arises when people want to impose their opinions and morality on others by way of the law.

If a Christian believes that gay sex, gay marriage etc. are immoral, then he or she has strong reasons not to engage in such activities. And also to communicate these reasons to others and to try and persuade them to be “moral”. What this person should not be allowed to do is to use the power of the state and the law to force others to be “moral”. The role of the state and the law is not to impose one particular view of morality or religion, but to guarantee a maximum degree of freedom and equal treatment to all citizens.

Religiously wrong, a motive of legislation which can never be too earnestly protested against. Deorum injuriae Diis curae. Injustices to the gods are the concern of the gods. It remains to be proved that society or any of its officers holds a commission from on high to avenge any supposed offense to Omnipotence which is not also a wrong to our fellow creatures. The notion that it is one man’s duty that another should be religious was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them … A determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor’s religion. It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested. John Stuart Mill.

So we should outlaw only an offense to Omnipotence which is also a wrong to our fellow creatures: there have of course been attempts to describe homosexuality among consenting adults as something that can produce harm to others (e.g. children adopted by gay couples etc.), but in my view no successful attempts.

To come back to the first quote: the “conscientious objection protections” that are mentioned are indeed useful. Proponent of same-sex marriage such as I should take into account the genuine fears of religious people. When we abolish the laws that refuse same-sex couples the right to marry – and hence abolish one instance of the law being used to impose one person’s morality on another – we should make sure that we respect people’s freedom of religion. For example, we should not make it illegal for a Cathholic priest to refure to marry a same-sex couple, or for a Christian adoption agency to refuse to place children with same-sex couples etc. If we were to make such refusals illegal, we would be needlessly limiting the freedom of religion of those people. I have a detailed post here on the need to balance the rights of gays with the rights of religious people.

Religion and Human Rights (13): Same-Sex Marriage and Religious Liberty, How Much Can We Discriminate?

Same-sex marriage to me is a no-brainer. Although international human rights law doesn’t explicitly grant gays and lesbians the right to marry, the notion of equal rights can be used to counter discrimination of homosexuals, including discrimination of marriage rights. Article 2 of the Universal Declaration states that everyone is entitled to all the rights set forth in it, without distinction of any kind. And the right to marry is recognized in article 16.

Furthermore, article 7 outlaws discrimination. On the basis of articles 2 and 7, many countries have enacted anti-discrimination legislation which outlaws racial discrimination, gender discrimination, sexual orientation discrimination and sometimes other types of discrimination as well. Such legislation punishes citizens who discriminate other citizens, for example restaurant owners refusing access to homosexuals, Jews, African-Americans etc.

However, the Universal Declaration and many constitutions also grant the right to religious liberty. Article 18 states that everyone has the right to freedom of thought, conscience and religion. Now, I think it’s fair to admit that freedom of religion and anti-discrimination laws can sometimes clash with each other (although the importance of such conflicts is often artificially inflated by opponents of same-sex marriage, see here for example). Anti-discrimination laws can force people to do things that violate their religious beliefs, if these beliefs require them to discriminate. Such laws can, if we stick to the previous example, force restaurant owners, who believe that homosexuals and Jews are sinners, to open their doors to homosexuals and Jews. When people are forced to act against their religious beliefs – no matter how bigoted these beliefs – it is fair to say that their religious freedom and freedom of conscience and belief are violated. These freedoms are not contingent on the quality of beliefs. All beliefs and religions, even the most bigoted ones, deserve protection (as long as they don’t cause harm to others of course).

It is not uncommon to see contradictions in the system of human rights. This system is not a harmonious whole. I’ve covered this problem extensively here and here. Rights are not always compatible, in which case one has to decide which of the conflicting rights has priority (or “trumps the other”). The normal (but not the only) rule is the extent of harm caused by a limitation of one right or the other.

In the case of discrimination of people on the basis of their sexual orientation, anti-discrimination laws based on article 2 of the Universal Declaration (or relevant articles of a national constitution) come into conflict with religious liberty (based also on the Universal Declaration or constitutional provisions). Both rights are very important (and I say this as a non-religious person), so the decision in favor of one or the other will never be an easy one.

Take again the example of the restaurant owner. At first sight, the answer seems obvious: let the restaurant owner refuse entry. The harm done by forcing him to grant access is clearly greater than the harm of forcing homosexuals to find another place to eat. On top of that, the restaurant owner can rightfully claim that not only his religious liberty and freedom of belief would suffer from forced access, but also his right to property (and to use it as he pleases). However, on closer inspection, things aren’t so clear. The harm done to homosexuals is likely to be much greater than just a dinner inconvenience. If a restaurant owner is allowed to discriminate, then this sends a signal to others that discrimination is OK. Choosing the side of the restaurant owner is in fact choosing the side of discrimination and legitimizes discrimination, causing harm that is potentially very widespread. After all, in a great majority of cases of people refusing to do something because of their discriminatory beliefs, there is someone else available to do what they refuse to do. So allowing people to refuse in one case because there is someone else who will not refuse (another restaurant), opens the door to a great number of refusals, and hence to widespread discrimination.

Furthermore, many cases are much more complicated than the restaurant case. How about a doctor refusing fertility treatment to a lesbian couple (married or not)? Or a Muslim doctor refusing to treat a female patient? Or a Christian university refusing to grant a gay person a place in its dormitory? Or a Catholic adoption agency refusing to place children with same-sex couples (married or not)? It’s clear that in many of these cases, the rights of those discriminated should take precedence over the freedom of belief of those discriminating because the harm done by discrimination is greater than the harm done by outlawing discrimination.

We should also distinguish between refusal by private persons and refusal by public officials. It seems much less acceptable for the latter to refuse to grant their services to certain types of people. The government should never discriminate people on the basis of religious belief. Governments should be religiously neutral as much as possible, and should respect the separation of state and church.

Anyway, sometimes anti-discrimination laws will trump other rights such as the freedom of religion, and sometimes not. So equal rights for gays, including the equal right to marry, will not “kill” religious freedom as some on the right believe. If we can convince opponents of anti-discrimination in general and same-sex marriage in particular that the concerns of religious beliefs are taken seriously and are not systematically deemed of lesser importance compared to equality, then they may give up some of their opposition. After all, even in those cases in which the concerns of equality are deemed to outweigh the concern of religion, the harm done to religion is not of catastrophic proportions. No one will ever force a priest to marry anyone, or a church to modify its doctrine, or someone wishing to express a preference for “traditional marriage” to shut up. In all these discussions on same-sex marriages, it’s important to keep things in perspective. Hysteric reactions on either side aren’t helpful at all. Compared to other rights violations, this problem is a minor one.

Much of this concerns discrimination in general, not just discrimination in the application of the right to marry. It just happens to be the case that the ongoing efforts to reduce marriage discrimination seem to cultivate the fears of many religious people that anti-discrimination laws will impose even further restrictions on religious liberty when same-sex marriage is recognized by law. These fears, however, are not substantiated by the evidence of countries or states which have, sometimes long ago, recognized same-sex marriage. Another reason to put things in perspective, something which is clearly captured by this quote:

While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion – all without extinguishing religious faith. Dale Carpenter (source)

Religion and Human Rights (9): Honor Killings

An honor killing is a murder, carried out by a family to punish a female family member who has supposedly brought dishonor on the family. The acts which are the cause of dishonor can be

  • refusing an arranged marriage
  • being the victim of a sexual assault or rape
  • seeking a divorce, even from an abusive husband
  • committing adultery or fornication
  • pre-marital sex
  • flirting
  • etc.

Men can also be targeted by honor killings, but more rarely (for example in the case of homosexuality).

Causes

  • The practice is mostly associated with Muslim cultures (sometimes in minority Muslim groups in the West), although there is no support for the act in Islam. And it does occur in other cultures as well. In India, more than 5.000 brides are killed annually because their marriage dowries are considered insufficient. (However, one can argue that honor is not the main motivation in such cases). It also occurred in some Latin cultures (“crime of passion” is often still a “mitigating circumstance”). In Muslim countries, the practice is seen by some as a justified enforcement of religious rules, and therefore not strictly a matter of honor. This is corroborated by the fact that sometimes the killings are perpetrated against women by individuals who are not close relatives, but who claim enforcement of religious rules as their motive. In Iraq, for example, honor killings are conducted by armed insurgent groups on politically active women and those who did not follow a strict dress code, and women who are perceived as human rights defenders.
  • There is a strong correlation between honor killings and illiteracy rates.
  • Men often use honor killings to assert their dominant patriarchal status. Women in the family may support the practice in order to preserve the honor of other female family members and to preserve their chances of getting married in the community. It’s a kind of purge or purification.
  • Some claim that the practice goes back to ancient motivations based on anxieties about reproductive power. Women, who were considered by the tribe to be a factory for making men, were forced through “honor” killings to obey the man’s family planning and not to reproduce outside of the tribe or the extended family.
  • In a society where marriages are arranged by fathers and money is exchanged, a woman’s desire to choose her own husband is a financial problem, one which can be “translated” in terms of honor.

Consequences

Apart from the obvious consequences (death or lifelong disability), the practice of honor killings also forces women to stay in abusive marriages or to avoid reporting rape. If the women are killed, they are buried in unmarked graves and the community denies that they ever existed. And if they don’t die, the chances of receiving justice are minimal as many governments fail to prosecute the crime. And even when there is a trial, it’s the woman’s behavior that becomes the focus, not the defendant’s. As a result, the women sink deeper into shame and often don’t take the trouble of reporting the crime.

Numbers

Because the murders frequently go unreported and the perpetrators unpunished, it is difficult to get precise numbers on the phenomenon. Estimates range between hundreds and thousands of women each year. In Pakistan, it is estimated that every day at least three women are victims of the practice.

What can be done?

Some say that the backwardness of the tribes where most killings take place makes it very difficult to do anything. However, education can work. The fact that the Koran does not prescribe the practice should be explained and taught. Honor killings are just one instance of gender discrimination and education should focus on women’s rights and the equality of women. Where the practice is linked to arranged marriages and dowries, one should first tackle these problems.

The judiciary and the police should be forced to intervene. Penal codes should be modernized, and the economic dependence of women should be dealt with.

Related phenomena

Related phenomena are acid attacks (instead of killing women, acid is poured on them) and honor suicides. People can be forced by their community or by their feeling of guilt to kill themselves. Relatives thereby avoid penalties for murder.

Gay Marriage From a Human Rights Law POV

Do homosexuals have a right to marry according to the international human rights standards? Not explicitly. They do not even have the explicit right to be homosexual, but jurisprudence has established that homosexuals should not be discriminated. First of all, all human beings, whatever their convictions, practices, behavior etc., have the same rights. So killing or torturing or arbitrarily imprisoning people is always wrong. And if this is done because these people are homosexuals or something else is irrelevant.

Homosexuality is also protected by the right to privacy. Article 12 of the Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.

And nothing is as private as sexuality.

Regarding the right to marry, article 16 states:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Sexual orientation is not mentioned as an unwarranted limitation. So the use of this article is a weak defense of gay marriage. But Article 2 states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The “such as” clause signifies that there may be other types of unwarranted distinction. See also Article 7:

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

And from a non-legal POV: gay marriage is not necessarily a threat to the institution of marriage. A gay couple can be as serious about marriage and about raising children as a heterosexual couple. Those of us who care about the importance of marriage have much graver threats to deal with.