France made headlines (and waves) last month after its burkini bans yielded photographic evidence of police officers forcing women to take off clothing on public beaches.  Now, France’s highest administrative court (and other French judges) have begun invalidating these bans, instituted by 30 cities in France, that prohibit publicly wearing burkinis.  Yet French citizens are still threatening to call the police on women wearing burkinis —  swimwear, donned mostly by Muslim women, that covers everything but the face, hands, and feet.

In America, a ban on wearing religiously-affiliated clothing would be unlikely to succeed legislatively, and would certainly be invalidated judicially as both free speech and free exercise First Amendment violations. However, there are lessons we can learn from France’s struggles with the burkini ban as our First Amendment jurisprudence and free speech culture evolves.  France’s reasons for implementing the burkini ban are echoed across the political spectrum: in calls to censor pro-Trump chalkings on university campuses and in approval of police officer’s  denial of protection for football players who refuse to stand for the national anthem.  And France’s staunch secularism conflates state refusal to ban religious clothing with state endorsement of religion, just as some scholars and critics of our current First Amendment doctrine believe that the failure to ban particular speech is tantamount to approving of such speech.  In essence, France’s burkini ban debacle illustrates why attempts in this country to abridge speech some find offensive, un-American, or regressive are ultimately intolerant and misguided.  The existence of the ban also shows the importance of distinguishing between state action and private action in determining when our liberties are restricted.

Continue reading “First Amendment Lessons From France’s Burkini Ban Debacle” →

Time recently described the frequency and ferocity with which Internet users, often women, members of racial, ethnic, religious minorities, and members of the LGBT community, experience Internet trolling.  Speech, ranging from vitriolic personal attacks, to racial and religious slurs, to threats of rape, to the development of slang terms like “cucks” to describe male feminists, to disclosure of personal contact information, causes many Internet users to avoid certain topics or disengage from the Internet community or public life.  Internet trolling, according to the Time piece, is “the main tool of the alt-right” (famous for the men’s rights movement and anti-immigration views).  Trolling is used as a way to voice displeasure against an all-female Ghostbusters and to galvanize support for controversial views.

In many ways, this type of speech is contrary to the ideal of public discourse that is civil, well-informed, sophisticated, and inclusive of a diversity of perspectives.  In some cases, such as where the speech would cause reasonable fear for one’s immediate safety or would incite others to cause imminent physical harm, the speech loses its protection and becomes criminal behavior.  However, because of our free speech protections, most of the trolling speech, even truly horrendous speech that gets very close to the line of threatening or inciting, cannot be prohibited.  In essence, then, Time is arguing that our highly protective free speech doctrine can be counterproductive to social discourse and civic betterment.  But what the Time article misses is both the importance of allowing this speech as a matter of First Amendment doctrine and the importance of the speech itself as a matter of free speech values.

Continue reading “What Time Misses about the Free Speech Benefits of Internet Trolling” →