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Federal Court Rules Against Missouri Ban on ‘Profane’ Speech Near Houses of Worship

On Monday, the U.S. Court of Appeals for the Eighth Circuit ruled against Missouri’s House of Worship Protection Act on First Amendment grounds, as reported by Eugene Volokh at the The Washington Post.

As Volokh duly discloses, the UCLA First Amendment Amicus Brief Clinic he heads contributed a brief to the case on behalf of the Thomas More Society. “I should note that the Thomas More Society would generally be seen as a conservative Catholic public interest law firm,” Volokh writes. “I think its willingness to speak up for the rights of protesters outside a Catholic church – and to ally themselves with the ACLU of Missouri, which brought the challenge – speaks well of the Society.”

The case could be seen as a collision between the First Amendment guarantees of free speech and religion, as the Missouri law was intended to protect the practice of religious ceremonies from the enthusiastic exercise of critical speech.

It’s a sensitive topic given the highly newsworthy complaints of some Muslims that the exercise of free speech offensive to their religion should be controlled by government. In this particular case, however, the complaint was filed by a group called the Survivors Network of Those Abused by Priests (SNAP), which holds demonstrations near churches to draw attention to child sex-abuse allegations.

As the St. Louis Post-Dispatch reported in August 2012, SNAP ran afoul of a Missouri law called the “House of Worship Protection Act,” which leveled misdemeanor charges against disturbing activity conducted close enough to a house of worship to disturb the “order and solemnity” of proceedings inside. The bill’s sponsor, Republican Missouri Senate Pro Tem President Rob Mayer, was confident it would survive this legal challenge. “I don’t see why this would be considered unconstitutional,” he said. “It clearly protects the First Amendment rights of the individuals desiring to worship.”

There’s the intra-First Amendment conflict in a nutshell: free speech conducted in a manner that interferes with the freedom of worship. As it turned out, the House of Worship Act’s undoing was its vague and subjective definition of “profane” and irreverent speech. The notion of protecting worshipers from outrageously disruptive activity on their property is not controversial, and much of it is covered by existing notions of private property and preventing public nuisances. The incidents cited by Mayer in his 2012 defense of the House of Worship Protection Act involved criminal trespass and even physical assaults on worshipers.

SNAP, by contrast, was essentially standing near the church and saying things that might dissuade people from worshiping inside. Although a lower court previously upheld the Act, the Eighth Circuit reversed the decision, ruling that the law was too broad, and enforcement depended upon highly subjective decisions about what could be considered “profane or indecent” by the audience within a house of worship. “The meaning of ‘profane,’ or irreverence to the sacred, is not a well-defined legislative term familiar to people of different faiths,” wrote the Eighth Circuit judges. “Any silent demonstration outside a house of worship would likely be able to create a disturbance only by the content of its message. Even expression that may be perceived as offensive, rude, or disruptive remains protected by the First Amendment.”

Another plaintiff in the case, Call to Action Inc., “advocates for various changes in the Catholic Church, including the ordination of women, acceptance of gay, lesbian, and transgender people, and women’s participation at altar services.” It is not necessary to endorse any of these positions to see that First Amendment protections should apply, even when demonstrations are held near churches whose members find Call to Action’s arguments offensive; the group argued in turn that it can’t reach the necessary audience for its speech without demonstrating in the locations it chooses.

The Eighth Circuit noted there was no evidence that these protests “have interfered in any way with churchgoers’ entry or exit from a house of worship.” The question was whether demonstrating close to a church created an environment so unappealing that it would interfere with the conduct of services by driving attendees away from the house of worship.

With all other civic ordinances concerning the volume of speech, lewd behavior, and so forth duly respected, a special prohibition based on the subjective content of speech exercised at a specific location – i.e. one cannot say this at that particular location because the people inside the nearby house of worship find it subjectively indecent, but it wouldn’t meet such objections two blocks away – could not withstand freedom-of-speech considerations.

The concept has come up in non-religious contexts, as well, as the Eighth Circuit mentions the decision against a District of Columbia ban on the display of signs near foreign embassies that the ambassador’s government considered objectionable. Another precedent considered in the decision was a ban against picketing and protest activities at funeral services, which was upheld because the court held it truly was content-neutral; “speech concerning any topic or viewpoint” would disrupt any funeral or burial service.

Of course, bringing freedom of religion into the equation makes it exceptionally delicate, given how strongly people of faith can object to statements and images regarded as far less controversial by those outside the faith. The Eighth Circuit touches on one of the most headline-relevant examples by noting that “critical portrayals of Muhammad outside a mosque, or of the Pope outside a Catholic church, might well be considered profane or indecent by their audiences,” while “others may find language using the name of holy figures as swear words not only disrespectful, but profane as well.”

The Western world is engaged in a bitter struggle against the “Heckler’s Veto,” in which the disruptive or even violent response to free speech is accepted and accommodated by suppressing “provocative” speech. The focus of this struggle tends to be Muslims reacting against speech they perceive as blasphemous, prompting generally liberal societies which formerly prized irreverent speech – and prided themselves on telling members of other religions to get bent if they didn’t like it – to suddenly become interested in limited speech to respect Muslim sensibilities, either informally through quiet self-censorship, or explicitly through stated policies, and even government action. We should have grown familiar with the lazy argument that “insulting” Islam or Mohammed is equivalent to “yelling fire in a crowded theater,” given the likely response.

But Muslims aren’t the only group mixed up in Heckler’s Veto battles. Many other groups, including avowedly secular movements, would like a piece of that action. All it takes is convincing society (or the management of media organizations and academic institutions, at least) that your group will reliably flip out and cause big trouble if certain forbidden ideas are expressed. Pushing back against this crushing of ideas is important, even though defenders of Missouri’s House of Worship Protection Act might sadly observe that the polite congregations of modest, peaceable churches are the only ones who can’t seem to make harsh critics think twice about offending them.

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