Contradictory Positions on First Amendment Freedoms

by Prof. Patrick Garry

There are two consistent truths about First Amendment speech and religion freedoms: first, there is always someone or some group in favor of them, while at the same time someone or some group opposed to them; and second, there is often little consistency from case to case among those who are in favor and those who are opposed to such freedoms.

With respect to speech freedoms, for instance, there were many who supported the recent Supreme Court decision striking down state regulations requiring parental consent before graphically violent video games could be sold to minor children.  This support occurred despite the significant social evidence that demonstrated a link between such games and the development of overly aggressive and violent traits in children.  Yet many of these same First Amendment supporters recently switched positions in connection with the YouTube video, The Innocence of Muslims.

This was the video that, according to initial White House reports, instigated the violent September 11th protests in Cairo and Benghazi, killing four Americans – a video that the administration judged to be “reprehensible and disgusting.”  It is a video that the federal government publicly pressured Google to pull from YouTube.  This video has prompted a pervasive outcry across the nation for curbs and restraints on certain types of speech.  Even the very speech-protective environment of academe seems quite eager to adopt exceptions to the First Amendment that would permit regulation of the kind of speech expressed in The Innocence of Muslims .

In contrast to the speech-restrictive attitude toward The Innocence of Muslims, a very speech-accommodating attitude has been evident with respect to other types of speech concerning other types of religions.  The Broadway hit musical The Book of Mormon, which mocks Mormons and Mormonism, won nine Tony awards last year.   A new television program, Breaking Amish, is a reality show that depicts young Amish and Mennonite men and women struggling to break free of the oppressive shackles of their religion.  There has been no outcry against these instances of religion-mocking speech, just as there has been no outcry against all the highly critical and even insulting speech concerning the Catholic Church’s opposition to the contraceptive mandates of Obamacare.

Speech demeaning a particular religion or set of religious beliefs has little if any real lasting value.  It most likely would be a far better world if people didn’t engage in such mockery of deeply held beliefs.  It may very well be a better world if the proclamation of religious beliefs of all types were more prevalent and encouraged, as opposed to mocked and derided.   And yet, although city officials in California can condemn the Catholic Church for its views on same sex marriage, a group of Texas high school cheerleaders have been taken to court to prevent them from hoisting banners inscribed with biblical verses during football games.


Patrick Garry is a professor of law at the University of South Dakota, and Director of the Hagemann Center for Legal & Public Policy Research.

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