Dispatches from the Creation Wars

Interesting Free Speech Case

A minister pays $2500 to put up a billboard with a Bible verse on it condemning homosexuality in New York. The president of the Borough of Staten Island writes a letter to the company that owns the billboard urging them to take down the billboard and they do. Minister sues claiming his free speech rights have been violated. District court grants a motion for summary judgment to the defendants, appeals court remands back to the lower court. Lower court dismisses the case again, appeals court upholds the dismissal. Now the minister has asked the Supreme Court to hear the case.

It’s a very interesting case, I think. The government in this case did not actually take down the billboard or order it taken down, but they did engage in some intimidation of the billboard company to get it taken down. The article notes:

In his letter to PNE’s president Molinari, a Republican, said “I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our borough.” He went on to remind the company made a lot of money from billboard signs in Staten Island.

Okinedy sued PNE for breach of contract but Federal Judge Nina Gershon dismissed the suit.

Okwedy went to the Court Appeals Court which ordered the case revisited. The court ruled that “Molinari’s letter could be found to contain an implicit threat of retaliation if PNE failed to accede to his requests.”

Yet the court dismissed the case anyway and the appeals court seems to be arguing that all Molinari did was express his opinion, which he of course can do. The appellate ruling says:

Even if we were to conclude that city officials acted pursuant to a policy or custom-whether contained in Section 8-101 or elsewhere-of criticizing speech deemed to be intolerant, such a policy or custom would not violate the First Amendment, as applied to the states through the Fourteenth Amendment. When the government speaks, it is not bound by principles of viewpoint neutrality and can make persuasive arguments for its own favored point of view. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995); Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1014 (9th Cir. 2000); Connell v. Signoracci, 153 F.3d 74, 82 (2d Cir. 1998) (“The Mayor is privileged, for example, to organize a rally against pornography, to call the topless bars a ‘black eye on the community’ and a ‘slimy business,’ and to call for a boycott of the establishments.”). Such speech is permissible as long as the government does not “threat[en], coerc[e], or intimidat[e].” See X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 1999). Government speech criticizing Okwedy and his message, alone, does not constitute “viewpoint discrimination” or violate the First Amendment.

But if the lower court concedes that the letter in this question contained at least implicit threats and intimidation and still granted summary judgment, it seems odd to me that the appeals court would behave as though there was no threat. After all, we are dealing with appellate review of a granted motion for summary judgment; the court is bound to consider all of the facts in the most favorable light to the plaintiff in such a case, both at the district court and appeals court levels.

The plaintiffs were making both a facial challenge and an as-applied challenge to the borough’s actions, based on the New York City Administrative Code, Section 8-101. Here is the court’s description of that code:

Section 8-101 states an official policy against “prejudice, intolerance, [and] bigotry” and establishes an agency to combat discrimination in housing, employment, and public accommodations, as well as “to take other actions against prejudice, intolerance, bigotry, discrimination and bias-related violence or harassment.” See id. Section 8-101 does not itself prohibit or regulate speech.

But it would seem that an as-applied challenge here is appopriate. And the appeals court’s standard for showing such a violation strikes me as very odd:

Indeed, plaintiffs do not argue that the text of the statute is unconstitutional but rather that officials have construed it in a way that makes it so. Although plaintiffs are correct that we must look beyond the text to “authoritative constructions” of the law, see Forsyth Cty., GA v. Nationalist Mvmt., 505 U.S. 123, 131 (1992), plaintiffs fail to cite any construction that supports their theory that the City interprets the Human Rights Law to suppress speech that conflicts with its anti-discrimination policy.

I don’t understand why this matters at all. Regardless of what statute the government thinks might justify its actions, it is the action that is to be deemed constitutional or unconstitutional. If the action itself violates his free speech rights, then it shouldn’t matter whether the borough president thought he was acting in accordance with this section of the administrative code or not. The Court makes it even more odd when they note the following in a footnote:

In our earlier summary order, we noted that “plaintiffs acknowledge that [Borough President] Molinari acted pursuant to the general policy against ‘intolerance’ and ‘bigotry’ expressed in New York law and the New York City Administrative Code ยง 8-101.” Okwedy, 69 Fed. Appx. at 5. Insofar as that language may have suggested that we read Section 8-101 to authorize or require the City’s response to the billboards, we take this opportunity to clarify that such is not the case. Rather, our earlier order was meant to explain that plaintiffs had produced no evidence that Molinari’s intent, in criticizing their billboards, was to suppress religious expression, and that, to the contrary, Molinari’s actions were supported by the city’s “general policy” against discrimination, of which Section 8-101 is one expression.

A very strange argument. Why does his intent matter? Again, the only legally relevant issue is whether Molinari’s actions did violate the plaintiff’s rights, not whether he intended to do so or whether he thought his actions were legally justified or not. Which goes back to the question of whether the implied threats and intimidation in the president’s letter constitute a violation of his free speech rights because that letter led the billboard company to pull the ad.

I think there’s a strong case here and I hope the Supreme Court takes it up. If you disagree, I recommend flipping the facts around. Imagine if someone took out a pro-gay billboard and a conservative Christian city council president sends them a letter to the company that owns the billboard saying that he thinks the billboard advocates immoral behavior and reminding the company that most of their billboards are within the city limits and thus subject to zoning regulations set by the city. Would you say there was no intimidation there? I think there would be in both cases.

Comments

  1. #1 Tom
    February 12, 2007

    As usual, I think you’re right, Ed.

    But I think you left out a quotation above that should have come after “the appellate ruling says.”

    Also, off topic, have you seen today’s NYT article on the young-earth-creationist guy who got a Ph.D. in paleontology from the University of Rhode Island? Interesting stuff there, I think. One of the ethical dilemmas between science and religion, or between church and state, that I often enjoy reading your take on.

  2. #2 writerdd
    February 12, 2007

    Hate speech should be illegal. Tolerating intolerance takes a good idea to an illogical and couterproductive extreme.

  3. #3 llDayo
    February 12, 2007

    Maybe the minister should stick to evangelizing like his “Good” book tells him to. Jesus didn’t teach hate and certainly didn’t promote condemning people, just spreading the Word.

  4. #4 Dave
    February 12, 2007

    writerdd,

    A great book on the problem of tolerance: Wendy Brown: “Regulating Aversion: Tolerance in the Age of Identity and Empire.”

  5. #5 Jim Lippard
    February 12, 2007

    The expression of ideas should never be illegal. The only speech that should be prohibited by law (apart from time, manner, place restrictions) are statements which are performative utterances, where the act being performed is illegal independent of the speech content.

  6. #6 Matthew Young
    February 12, 2007

    Maybe some like-minded individuals should club together and raise a billboard reading something along the lines of

    ‘Homosexuality is a normal and perfectly reasonable way of life. Anyone who cites religious grounds as a reason for denying this fact, or for denying homosexual people the same rights and protections as heterosexual people is an immoral, superstitious bigot.’

    I don’t think you can legitimately quash either action, but the reactions would be amusingly different. And now imagine the equivalent radical Muslim billboard and the fun really starts.

    What’s sauce for the goose is sauce for the gander.

  7. #7 ratel
    February 12, 2007

    It is a fine point but the president’s letter did not threaten to do anything that was not in his power. As the executive he can probably order enforcement of zoning requirements.
    Once his actions crossed the threshold and he actually used the zoning ordinence to restrict free speech, than I belive a violation could be found. In addition, the president has an equivalent free speech right to express his view’s to the billboard company.

    The difference with a pro-gay billboard would be you could make an argument that a letter from the city council refering to “supporting an immoral lifestyle” is an implicit establishment clause violation because the morality refered to is based on religious belief. It would still be a very weak case but there would be an argument to be made.

  8. #8 raj
    February 12, 2007

    It isn’t quite that simple, Mr. Brayton, and that is one reason why I part from self-described “libertarians.” Things aren’t quite as simple as they would like us to believe.

    A very strange argument. Why does his intent matter?

    Why should intent have mattered in the Dover case, and in the other creationism cases, but not here? Intent mattered in the Dover case, and in the other creationism cases, and it was the intent that largely determined that the Dover regulation was unconstitutional, the Louisiana law in Aguilard was unconstitution, and so forth.

    Intent matters, Mr. Brayton. Intent matters in most issues of criminal law (1st and second degree murder, various degrees of manslaughter, for example) and intent matters in many issues of civil law. Intent matters. The intent of the actor/perpetrator. The intent of the person who is to be held responsible–not just criminally, but also morally, by a jury. Intent matters.

  9. #9 Poly
    February 12, 2007

    Ed:

    I find it strange that some folks think civil liberties like freedom of expression apply only to causes that they generally agree with.

    What they are missing is that any diminishing of civil liberties has to be looked at very hard. Freedom of expression is part of the bedrock of the American political system.

    When I raised the issue of a private expression of a disagreement in another context, you implied that it could only be legal issue if it translated into a denial of civil rights. For example, if it could be shown that as a direct result of that disagreement, someone was denied equal access to housing or to education.

    In other words, if something is merely a private expression of opinion – even if it is an opinion that we don’t like – and doesn’t call for any denial of civil rights, not only is it legal, it is actually an expression protected from government interference. Why is this case any different?

  10. #10 Bill Snedden
    February 12, 2007

    It seems to me that the wording of the Molinari’s note is somewhat ambiguous. At least, insofar as the implication of a threat can be dispositively judged to be included therein. Therefore, shouldn’t the question of how the billboard company interpreted his letter be of material interest?

    So-called “anti-discrimination” policies aside, it seems to me that there exists the possibility of two (at least) implied threats: 1) the borough itself would take action; and 2) borough residents might take action.

    If it’s the case that the sign company read Molinari’s note as implying 1), then it seems clear (to me, anyway) that an infringement has taken place: the power of the state was used (even if unintentionally) to quash freedom of expression.

    However, if it’s the case that the sign company understood Molinari to be expressing his view that the billboard would be viewed negatively by members of the community and further that the sign company believed that such negative reaction might be accompanied by economic action, and this belief led to their removal of the billboard, no such infringement has occurred.

    I should think the question of breach of contract would be a separate issue, however. Did the sign company refund his money? If not, how would they NOT be in breach?

  11. #11 Ed Brayton
    February 12, 2007

    raj wrote:

    Why should intent have mattered in the Dover case, and in the other creationism cases, but not here? Intent mattered in the Dover case, and in the other creationism cases, and it was the intent that largely determined that the Dover regulation was unconstitutional, the Louisiana law in Aguilard was unconstitution, and so forth.

    But there are still two very different questions here. In the case of the Lemon test, the court says that if they have an intent to violate the constitution then that’s enough for a violation (and frankly, I think that’s a highly suspect legal position). But in this case the court merely points out that there’s no evidence that the man intended to violate the man’s religious freedom. But so what? Even if one does not intend to violate someone’s rights, or doesn’t believe they are doing so, they can still be violating them. Intent can’t be the only standard by which we determine constitutional violations. After all, Bush may well believe that he’s not violating the constitution with his actions; that doesn’t mean he’s not.

  12. #12 Ed Brayton
    February 12, 2007

    writerdd wrote:

    Hate speech should be illegal. Tolerating intolerance takes a good idea to an illogical and couterproductive extreme.

    Can you give us a coherent and objective definition of “hate speech”? No one has ever come up with one that I am aware of, and that is a serious problem.

  13. #13 Matthew Young
    February 12, 2007

    No one has ever come up with one that I am aware of, and that is a serious problem.

    This is the problem with all religious speech. You cannot talk Christianity or Islam or in many cases atheism without implying a very direct criticism of people who hold different beliefs. Christians believe non-Christians will rot in hell, and justifiably so, which ups the stakes a little when people say anything tantamount to ‘I disapprove of your lifestyle’ with any sort of religious tones.

    It’s like the ‘Defamation of Religion’ law discussed a couple of days ago. Ultimately all it will achieve is to make religions illegal.

    Religion, as a tool of tribal unity, has always been dangerous because it generally defines non-believers as in some way being sub-human, which is both threatening and dangerous, and also implicit in most religious ideological disagreements.

  14. #14 DuWayne
    February 12, 2007

    Molinari used his position of authority in the Burroughs, to intimidate the company that owns the sign into removing the offensive message. There is no way to make this look reasonable or legal. If it were a private citizen, or a group of them, threatening to lead a boycott of that company – and/or any company advertising through them, it would be an entirely different story. Hell, it would be brilliant turnabout, of a generally rightwing tactic.

    The fact that Molinari worded his letter the way he did implies he damn well knew, that he was crossing the line. I read a book, years ago, that included the text of Chicago’s old strongarm political bosses (from back when the mob had serious power). Molinari’s letter would have fit right in. In fact, it could well have been plagiarized from some of the letters of those cretins – with a few changes to fit the context.

    In effect, this is a threat that says; “We (the government) can’t legally force you to take them down, but if you don’t we will/can make your life a merry hell.” I am amazed that there are people here defending this. This is strongarm politics at it’s absolute worse – at least today (I don’t think that actual violence enters the equation any more – could be wrong).

    As I have said in the last few days, the answer is mocking. Make it damned clear that the views expressed on that billboard are a minority view. Actively encourage a boycott of businesses that choose to use that company to advertise. Put up billboards that strongly counter the offensive one. Put up billboards that depict scenes of violence, committed with religion as the excuse. Keep this bigotry in the spot light, even when the perpetrators have packed up and gone home – and mock it for the neanderthal bullshit it is.

    Do not force it underground. I think it is important to keep in mind where the church is growing the strongest and most bigoted – places that restrict it. As I understand it, Germany has a pretty strong, underground, neo-nazi movement – one of the strongest in the world. They also have the strongest restrictions on neo-nazi hate speech. Restrictions on speech, just strengthen the message being restricted. The more vehement the restrictions, the stronger the movements being restricted, often become.

    So no, to all of you supporting this bullshit, it is not, in any way, acceptable to restrict free speech through government coercion. It is mind boggling to me that it is not obvious to everyone here, how counterintutive such restrictions are. Free speech for me, but not for thee, is a frightening phenom in our society. It makes me immensely grateful that we have a constitution that protects the rights of all of us, not just people we might agree with.

  15. #15 CPT_Doom
    February 12, 2007

    Having read the post and the comments, I see Ed’s point, although this may be a situation where a technicality (e.g., no explicit threat in Molinari’s letter that the city would stop doing business with the company) makes this case difficult, if not impossible, for the plaintiff to win. But I want to be clear here, Ed – if the letter had simply said “I think the message is bad for our community, it shows poor judgement, and I am appalled you took the money,” there would be no Constitutional issue, as there would be no threat, merely an exchange of ideas.

    Going a little further on the hypotheticals – what would be your opinion if a city official, in a circumstance like this, threatened to pull private, not city business. Let’s say a major landlord in the city, who was also on the local city council, was worried about reducing the number of people looking for apartments if the community were seen as intolerant, so threatened to pull private advertising. He would still be writing as a city official, but the retaliation would be in the private sphere – still a Constitutional problem?

  16. #16 plunge
    February 12, 2007

    Ed, my real question here is what the redress is. I think that, all things equal, the Borough President was out of line. But the company was the one that took the action. Isn’t the only thing the court can rule on now is whether to give money to the guy and/or tell the Borough President not to do things like that anymore?

    I mean, the company could choose to put the sign up or down as they please before and after the ruling. There’s no real legal issue there, unless the company wants to sue the Borough Pres., is there?

  17. #17 Ed Brayton
    February 12, 2007

    CPT wrote:

    But I want to be clear here, Ed – if the letter had simply said “I think the message is bad for our community, it shows poor judgement, and I am appalled you took the money,” there would be no Constitutional issue, as there would be no threat, merely an exchange of ideas.

    Absolutely. Elected officials have the same right to give their opinion on such matters as anyone else. In fact, without the implied threats and attempt to intimidate, this would instead be an example of conservative hypocrisy. After all, they are forever arguing that businesses have the right to turn down business that they believe violates their values. If a company refused to do business with them on the same basis, they have no right to complain.

    Going a little further on the hypotheticals – what would be your opinion if a city official, in a circumstance like this, threatened to pull private, not city business. Let’s say a major landlord in the city, who was also on the local city council, was worried about reducing the number of people looking for apartments if the community were seen as intolerant, so threatened to pull private advertising. He would still be writing as a city official, but the retaliation would be in the private sphere – still a Constitutional problem?

    Hmmm. A much closer call that would probably rest on how he represented himself to the billboard company. If he wrote the letter on government stationary and represented himself as the president of the council rather than as a private businessman in the letter, then I think a case could be made. If not, it would be tougher. But that’s a lot closer call than threats to use the tools of government.

  18. #18 Ed Brayton
    February 12, 2007

    plunge wrote:

    Ed, my real question here is what the redress is. I think that, all things equal, the Borough President was out of line. But the company was the one that took the action. Isn’t the only thing the court can rule on now is whether to give money to the guy and/or tell the Borough President not to do things like that anymore?

    Almost all civil rights cases involve only a request for injunctive or declaratory relief; rarely do they ask for more than nominal damages (as in the Dover case, where each plaintiff received $1). The court would not require that it be put back up on a billboard.

  19. #19 Raging Bee
    February 12, 2007

    I really don’t see a huge case here. A politician expresses his opinion to a businessman, supposedly in the interests of his constituents; and the businessman exercises his discretion by not publishing a certain opinion, on a forum owned by him, in order to avoid anger and controversy. Politicians write letters and make phone calls all the time, as favors for their constituents; and advertizers choose every day which ads or opinions are most profitable for them to publish.

    As long as the preacher got his money back, for services not rendered, he’s not being treated any less fairly than anyone else trying to use someone else’s medium to amplify his own opinion.

    As for the “threat,” all Molinari said was “This opinion is not welcome here,” not a specific threat directed at any specific individual or business.

  20. #20 Trinifar
    February 12, 2007

    Can you give us a coherent and objective definition of “hate speech”? No one has ever come up with one that I am aware of, and that is a serious problem.

    I don’t think you are playing fair here, Ed. Just turn your question around, replace “hate” with “free”. Since free speech cases are and have been a dime a dozen since the beginning of the USA, I think we have to accept that “free speech” is difficult to define — but that doesn’t make it a silly or even impractical concept.

  21. #21 Ed Brayton
    February 12, 2007

    Trinifar wrote:

    I don’t think you are playing fair here, Ed. Just turn your question around, replace “hate” with “free”. Since free speech cases are and have been a dime a dozen since the beginning of the USA, I think we have to accept that “free speech” is difficult to define — but that doesn’t make it a silly or even impractical concept.

    I don’t think this is a reasonable comparison at all. Our constitutional free speech doctrine is actually quite coherent and well understood (compare it to our religious freedom jurisprudence, which is a big mess of conflicting standards and results). The exceptions are few and are very narrowly drawn so as to maximize liberty and to ensure that only speech which results in a direct and tangible harm to the rights of another may be constrained. Now let’s look at a few examples and you tell me which ones are “hate speech” and which are not.

    1. “Homosexuality is not natural. It is an abomination to God. Those who choose the gay lifestyle are living in sin and will pay the consequences of that sin.”

    2. “Christianity is a bigoted religion based on a book that preaches hatred of gays. Christians are the only thing preventing gays from having true freedom and equality in America and we must dismantle their authoritarian agenda.”

    3. “The US is an imperialist nation that has effectively enslaved the world’s population to live beneath the thumb of multinational corporations, which profit off the blood and toil of those to whom they pay slave’s wages. All Americans, by supporting and paying taxes to this vile regime, are complicit in that enslavement and have blood on their hands.”

    4. Islam is a violent religion that preaches death to all those who do not bow to the authoritarian will of those who interpret the Quran in the most destructive way possible. Those who adhere to this dangerous philosophy are a serious threat to the Western values of freedom and equality and they must be prevented from achieving that change.”

    5. “The Darwinian Priesthood operates as a Stalinist machine that crushes all who dare to dissent from Orthodoxy. They fill the textbooks with lies to destroy the faith of our children and warp the constitution to fit their evil agenda.”

    Can you give me a coherent and objective definition of “hate speech” that would tell us which of those statements are permitted and which are not?

  22. #22 JS
    February 12, 2007

    Can you give me a coherent and objective definition of “hate speech” that would tell us which of those statements are permitted and which are not?

    Incitement to violence is, in this case, sufficient. #1 is a threat. To ‘pay the consequences’ of ‘living in sin’ has almost throughout history meant being murdered in the most brutal fahsion imaginable – and in many and more cases in fashions not imaginable by most ordinary people. The US has a large cadre of militant christopaths. Thus, a reasonable outside observer can conclude that the statement is s threat.

    ## 2,4&5 do not threaten violence – ‘dismantle their authoritarian agenda’ and ‘be prevented from achieving that change’ can both be brought about through non-violent means.

    # 3 is a statement of fact.

    - JS

  23. #23 dogmeatIB
    February 12, 2007

    While I despise hate speech and everything it stands for, you can’t “make it illegal.” If you make something illegal because it (rightly or wrongly) offends, where do you stop? Our entire legal system is based upon precedent. If you establish the precedent that one type of speech is “offensive” and therefore illegal, then what is to stop the next administration/office holder, at whatever level, to decide that something he/she doesn’t like is “offensive” and therefore illegal? The progression can go from some forms of speech that most of the readers here would like to see gone, IE gay bashing, anti-semitism, racial and gender hate mongering, etc., to forms of speech that we (as a collective) would not support suppressing, for example, speech favoring gay rights, equal rights for women, teaching of “controversial subjects…” All of these could be declared “offensive” and hateful by someone.

    I agree with the president of the borough’s stance on the issue, but, as much as I hate to say it, I have to agree with Ed, his actions were a violation.

  24. #24 Ed Brayton
    February 12, 2007

    JS wrote:

    Incitement to violence is, in this case, sufficient. #1 is a threat. To ‘pay the consequences’ of ‘living in sin’ has almost throughout history meant being murdered in the most brutal fahsion imaginable – and in many and more cases in fashions not imaginable by most ordinary people. The US has a large cadre of militant christopaths. Thus, a reasonable outside observer can conclude that the statement is s threat.

    No, #1 is not a threat. The “consequences of the sin” would almost certainly mean going to hell, just as they believe are the consequences of any sin. Incitement to violence is already an exception to the free speech clause, but it is very, very narrowly tailored, as it should be. It’s not enough to say, “one possible interpretation of this could be….”; the incitement must be clear and unmistakable and the threat must be imminent.

    One could just as easily interpret #4 as an incitement to violence, since one of the possible ways of preventing them from carrying through on the threat is by killing them off. And that is entirely my point – we naturally read those statements we disagree with as more threatening than those we agree with. We give the benefit of the doubt to those we agree with and presume the worst of those we don’t. And that is exactly how such laws are and always will be enforced, subjectively.

  25. #25 ratel
    February 12, 2007

    Incitement to violence has nothing to do with what is or is not “hate” speech. I can advocate violence without ever mentioning any specific group. Plenty of laws already exist to criminalize speech advocating violence without the needless addition of extra penalties because the speaker used a word we do not like or directed the violence at a traditionally disadvantaged group of people.
    Most “hate” speech also tends to be either politically or religiously motivated and therefore actually deserves the highest level of protection. The best remedy to speech you do not like is more speech not less speech.

  26. #26 James
    February 12, 2007

    Personally I would consider the letter to be problematic at best if sent on official letterhead. Anyone who works for a government must accept limits on their free expression when acting in an official capacity.

    As far as hate speach goes I can think of only one coherent definition, and that is to define it as an empty set.

  27. #27 ThomasTallis
    February 22, 2007

    I skimmed the comments, but didn’t see whether or not the billboard company refunded the minister’s money. If they did, that should be the end of it. No harm, no foul. He has a right to free speech, but he does not have a right to “gratis” speech in a commercial venue.

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