What part of the Constitution permits prostylitzing?

Great Debates
61

You don’t think this is kind of a judgment call?

The only distinction would be the court’s appraisal of someone’s perceived sincerity. Couldn’t there be a religious nut whose sincere beliefs include earthly, bodily dangers that affect all those who refuse to come out into the street to pray? If the courts are willing to categorically refuse to accept that my fire alarm guy could possibly be sincere, whatever his claims, why does the evangelist get extra wiggle room because he sincerely (but with no more tangible evidence) believes what he says he believes? Why do we cut them a whole different category of slack?

62

No, it’s not a judgment call. We’ve got three possibilities here

  1. The fire alarm guy knows that your house is not on fire. This is a practical joke. That’s the situation I thought you were positing, and the one I was addressing in my earlier posts.

  2. The fire alarm guy genuinely thinks your house is on fire, but he’s mistaken. I think we’d agree that a prohibition on raising sincere but mistaken alarms would be (a) undesirable and (b) pointless, and it’s not the analogy we’re considering here.

  3. The (fairly improbable) situation you seem to be positing in your most recent post is that the fire alarm guy sincerely believes that there is some moral virtue or benefit in getting you to come out into the street in your underwear. He knows that your house is not on fire, but he tells you that it is and considers that this is justified because it serves the “greater good” of getting you into the street, inappropriately clad.

Frankly, I don’t think this scenario bears a sufficiently close connection to reality to be a helpful one, but what the hell. The guy in situation 3 is lying. He is telling you something which he knows is untrue. That distinguishes him from your common-or-garden evangelist.

But, as I say, I thinkthe political canvasser, the charity worker, the Greenpeace campaigner, or the guy from the Italian Friendly Society or the community choir are much more realistic and appropriate analogies. Do you think that they can be or should be restrained? Or do you distinguish between them and the evangelist? If so, how?

63

Well, precisely!

A person charged with causing a public disturbance by yelling “fire!” in a crowded theatre is presumably lying - but that’s going to be a judgment call by the jury, isn’t it? Presumably it would be a perfectly valid defence to say you legitimately believed there was a fire, even if there was not.

Well, yeah. Not to point out the obvious, but one’s sincerity is often the subject of decisions of fact in a courtroom.

Because yelling “You’re going to hell” won’t start a stampede that can kill someone.

You aren’t going to get anywhere if you can’t advance beyond the CONTENT of the speech. Forget content. The problem with yelling “fire” in a crowded theatre isn’t the CONTENT, it’s the intent (to cause a riot.) It doesn’t matter if you shout “Fire!” or “Terrorists!” or “Ebola virus!” or “Hungry velociraptors!” - the reason it’s illegal is that you’re deliberately doing something that can be reasonably expected to create something ranging between a public distubance and murder. The Jehovah’s Witness who comes to your door is not attempting to start a riot.

Now, if a religious nut was doing something to start a riot, I imagine they would likely be arrested. Religious speech is not protected if it’s legitimately disruptive. But the sort of prosetlyzing you originally described cannot reasonably be described as such. The CONTENT doesn’t matter.

64

can’t a really sincere-seeming practical joker argue that he was inspired by the word of God to get people panicking? If he could convince one member of a jury that he felt divinely inspired to panic people to show them the power of God’s truth, or some such nonsense, however wacky it would seem to most of us, wouldn’t that be a content-based exception to your standard?

In other words, what are the practical limits of the protection afforded to someone claiming to be practicing religion, and therefore deserving of protection denied to people basing their defense on secular claims? We obviously draw some line to show where claiming protection for obnoxness behavior under “exercise of religion” stops and starts. I’m trying to find out (I think) where that line is drawn and how it isn’t subjective and arbitrary.

My example of a fire-alarm guy probably doesn’t hold here (“like it ever did,” I know, I know). Let’s go with a conman selling memberships in his church. Does this conman have any conceivable protection that a driveway-sealant conman is denied?

65

Well, the driveway sealant guy says “pay me $1,000 and I’ll seal your drive”. I pay the $1,000, but he never seals my drive. It’s fairly easy for me to show that I haven’t got what I paid for.

The crooked evangelist says “pay me $1,000 and your place in a blissful afterlife will be assured.” I pay him the $1,000. I’ll have difficulty showing that I haven’t got what I paid for, so he has a better chance of escaping.

But this is not unique to religion. Some other conman says “pay me $1,000 and I will use my natural psychic energies to bring you good luck and a sense of inner calm” or “pay me $1,000 and I will read your fortune in this crystal ball”. These are the same as the religious conman. They have all had the good sense to make an intangible kind of promise whose performance or non-performance is difficult to establish, unlike the slow-witted apprentice conman who promised to seal my driveway.

The same is, obviously, true of the politician who says “vote Republican (or Democratic) for a happier, more prosperous, America”.

But we’re changing the issue here. The OP was not about whether fraudulent proselytising could be restricted, but whether proselytising could be restricted. You certainly can’t prohibit all proselytising on the grounds that some of it might be fraudulent, because that offends the test which Sua has already laid out.

I think the point basically is that religious speech is not judged by different criteria to any other kind of speech and, instinctively, this seems right.

66

There may be a misunderstanding here. There is a constitutional guarantee of freedom of religious exercise, but proselytisation does not rely on that guarantee for protection. The general free speech guarantee is more than broad enough. Proselytisation has all the protection it needs under that guarantee, without regard to its religious nature or without placing any reliance on the free exercise of religion clause.

In other words, proselytisers have no protection which is not also available to those engaging in other forms of speech. And, it follows, you cannot restrict proselytisation without also restricting other forms of speech, or implying that such restriction is permissible.

I think the freedom of exercise clause is only relevant to forms of exercise other than speech, such as refusing to be conscripted, or refusing to take an oath.

67

You can’t come up to my door defrauding me of my money with the claim that you’re selling land (that happens not to exist), can you? Even if I’m stupid enough to believe you, you can’t defend that by saying, “No one twisted his arm to buy it, he gave me the money voluntarily,” can you? That’s fraudulent, isn’t it? What’s the difference between non-existent land or non-existent salavation?

Or racketeering? If you threaten me with “Nice little place you’ve got here. Pity if it burnt down” and I agree to make myself your personal servant for 20 hours a week so that you’ll protect my home from marauding arsonists, that’s racketeering, right? How is that materially different from if you’re coming around saying, “Nice little soul you’ve got there. Pity if it roasted in the everlasting fire” and I agree to devote those same twenty hours a week to sweeping out your church, attending your church services, teaching in your Sunday school…how is that not racketeering?

68

Well then, you and Kalt are simply wrong: the definition of “compelling state interest” is not flexible enough to apply here. “Compelling state interest” is a legal term, and its legal meaning stretches nowhere near this far.

  1. Particularly odd definition of “tolerant” you’ve got here.
  2. What growing dimunition of religion? Americans are still overwhelmingly religious.

pseudotriton ruber ruber, you cannot win this debate by simply attempting to redefine terms to suit your argument. First you try to incorrectly redefine “compelling state interest,” now you are trying the same with “imminent.” If a person comes to your door and tells you that if you don’t repent you will spend your eternity in flames, how is that “imminent”?
And imminence, real imminence, is important to this discussion. The reason that yelling ‘fire’ in a crowded theater is forbidden is because there is no opportunity for countervailing thoughts and opinions to demonstrate the falsity of the assertion - when someone yells “fire,” you run - you don’t debate. OTOH, if someone tells you that, unless you repent, sometime after you die you will go to Hell - well there you have the rest of your life to listen to opposing points of view.

They could decide that now - it still wouldn’t change the law. “Compelling state interest” does not mean “it would be better for more people” - it means that a vital governmental interest will be irrevocably harmed, and there is no other way to protect that interest. People being annoyed doesn’t harm any governmental interest, much less a serious one. And the other prong of the test - ‘narrowly tailored’ - means that the only practical way to prevent the irrevocable harm is to infringe on the proseletyzer’s rights to speak and exercise religion.
Further, the virtues or vices of proseletyzing are utterly irrelevant. This is not a balancing test between the value of proseletyzing versus the annoyance felt by listeners - instead, it is simply a question of whether the proseletyzer is allowed to open his/her mouth and express thoughts. And he/she is.

We can go on like this forever, pseudotriton ruber ruber. You can dance all you want, you can try to redefine terms, but until you show what vital governmental interest is irrevocably harmed, and how nothing else but banning proseletyzing will prevent that harm, you … have … no … argument.

So, kind sir,

  1. what is the vital governmnental interest threatened by proselytizing?
  2. how does proselytizing threaten that interest?
  3. why is there no other way to prevent that alleged harm that doesn’t infringe on the proselytizer’s rights to speak and exercise religion?

You have three choices, if you want a real debate here (instead of the current ongoing thrashing):

  1. Answer the three questions above;
  2. Present an argument as to why the “compelling state interest test” should be abandoned for all forms of speech and exercise of religion; or
  3. Subtly hijack your own thread into a discussion of the Yankees’ chances this season.

Quite frankly, option #3 is your best bet.

Sua

69

He can’t. What makes you think he could?

There aren’t any such protections.

The difference is that you can’t prove salvation doesn’t exist. There’s also the simple fact that a person saying “You should believe in God” is not stealing your money.

You STILL insist on refusing to look beyond the content of the speech.

70

The burden is on you, though, in cases of fraud, to demonstrate that there was a material misrepresentation, and that you relied upon it to your detriment.

In your second example, a reasonable fact-finder could conclude that there was an implicit threat – that is, the speaker was suggesting that he would burn the place down. But there is no extortion if the seller merely warns of a real, legal (or extra-legal) hazard. A salesman selling flood insurance is, for example, acting legally if he wanders into your Mississippi Delta store and says, “Nice place - be a pity if it flooded,” since no reasonable person could conclude he was threatening to flood you.

  • Rick
71

The difference is that you can prove that the land doesn’t exist, whereas your position requires us (and the law) to start from an assumption that the salvation doesn’t exist.

If you want to debate the truth of the Christian (or any other) religion, you need to start a whole 'nother thread, or to join in any of the wide range of thread which already discuss this.

Your position looks increasingly like this: (a) Christian faith (and all religious faith) is, objectively, wrong and the claims of religion are false, and (b) for that reason the state is justified in restricting its expression. No offence, but this strikes me as (a) arrogant and (b) intolerant, and if others share my perception then this position is unlikely to attract broad support.

And it’s certainly a complete non-starter so far as the US constition is concerned. It is absolutely inconsistent with the principles enshrined in the constitution, and the jurisprudence which has developed from it. If you really want to advance this position, you need to frame an argument advocating a constitutional amendment.

And, probably, if you’re going to be honest, you need to ask questions like “Do I favour freedom of speech? Do I favour the separation of church and state?” It doesn’t look to me as if you favour either.

72

I have to ask: are you really terrified if someone says you’re going to hell? Would such a statement really cause you to bolt from your home or a theatre? I’m frankly amazed that you can’t see (or continue to claim that you can’t see) the distinction between somone talking about Hell and someone yelling “FIRE!”

Frankly, if you’re not terrified, I don’t why you’d assume others would be and that we need a law to protect society, especially a law with such a narrow focus. You seem to be trying to come up with some magic formula that lets you apply greater restrictions to religious nuisances than secular ones. The problem, of course, is that such a formula will be viewed by many as unfair and unconstitutional. Better to ignore content entirely and just enforce existing laws on public nuisances and trespassing. If a person comes to your door for any reason and doesn’t leave when you tell them to, you can call the cops. Do their reasons really matter all that much?

Besides, I can offer you personal assurances that you’re not going to Hell, so you can just ignore those big bad evangalists that are being so mean to poor widdle you.

73

Just wanted to note that I appreciate the serious attention that my sincere queries have gotten from you folks, who obviously think there’s something wrong with me. I can’t imagine where, other than the SDMB, this line of questioning wouldn’t have long ago deteriorated into abuse and flaming.
Mr. Ekers: I’m actually doing okay with the nutjob crowd. I used to have an evanglistic roomate in college who used to drive me nuts with his nonstop yammering about stuff i told him I had no interest in hearing, and then for a short time I shared an office a few decades later with one of his brethren, but other than that, this is a pretty theoretical inquiry on my part.

I’m trying to think about the distinction between “racketeering”, where I’m being threatened with immediate bodily harm, and “proseletyzing” where I’m being threatened with not-so-imminent spiritual harm, either of which could influence me to fork over my time and money to someone who claims (whether truly or not) to have the means to save me from harm. For now, a threat, implied or explicit, is a threat, and I’m not seeing precisely why one is permitted and the other not. But thanks for giving me stuff to think about. I know how frustrating it feels to argue with someone who seems determined not to see your point, and I appreciate the civil tone around these parts.

74

And you claim you went to college …

Both are not threats. Racketeering involves a threat. Proseletyzing involves a warning.

From Merriam-Webster - Threat n. 1 : an expression of intention to inflict evil, injury, or damage.
Warn v. to give notice to beforehand especially of danger or evil.

You’re doing it again. DO NOT try to change the plain meanings of words just to butress your argument.

Pop quiz, hotshot: It’s midnight, and I’ve decided to drive home from visiting my sister. My sister says to me, "You’ve been up since 6 this morning. If you try to drive home now, you’ll get into an accident." Threat or warning?

Answer: it’s a warning.

Next quiz:

Which is the threat here, and which is the warning?

A: “If you do not repent, I will take your soul and burn it for all eternity.”

B: “If you do not repent, God will take your soul and burn it for all eternity.”

Answer: A is a threat. B is a warning.

Final Quiz: Which, if any, is a threat?

A: “If you do not vote for the Democrats, the market will crash and you or your family members will lose their jobs.”

B: “If you do not repent, God will take your soul and burn it for all eternity.”

Answer: Neither.

Sua

75

The distinction is that the racketeer is threatening, expressly or by implication, to inflict this harm upon you himself. The harm would not befall you unless the racketeer actively willed it and brought it about. The evangelist is threatening (or warning or predicting, if you prefer) that harm will befall you, but he is not going to inflict that harm upon you. The harm will be the consequence of your own action or inaction; the evangelist will not bring it about, and he cannot prevent it.

The evangelist does not, typically, claim “to have the means to save me from harm”. His claim is that you have the means to save yourself from harm. He merely tells you what they are. They do not, typically, consist of giving money to him, and most evangelical Christian movements are, in fact, insistent on the point that salvation is attainable through grace alone, and that good works (which includes giving money) are neither necessary nor sufficient for salvation.

If “a threat is a threat”, and any prediction that harm will befall you is a threat, then am I racketeering if I suggest to you, without being asked, that your house is affected by rot and that you need to spend substantial sums to prevent it falling down? It kind of makes a building surveyor’s life difficult if that is racketeering, doesn’t it?

76

Personally, I prefer laws that stay on the temporal plane. Someone who threatens my health, family, or property is threatening a tangible, measurable concept. A blackmailer who threatens to publish embarassing photos of me is attacking my reputation, which can have demonstrable financial value. When laws start getting passed on the basis of protecting something ethereal, like souls, or outlawing discussion of ethereal concepts like souls, watch out.

I still get the impression you’re trying a find a legalistic rationalization for outlawing religion, or at least the public discussion of it. Under such laws, someone who says “Go to Hell!” has technically uttered a death threat, or at least an after-death threat.

77

"am I racketeering if I suggest to you, without being asked, that your house is affected by rot and that you need to spend substantial sums to prevent it falling down? "

Well, if I say, “No, thanks,” and you come around every day, anyway, reminding me that the day is drawing ever closer when my house may not be able to be saved from rotting, and that I must act now by joining your church of rot prevention, no matter how often I tell you to stop bothering me, of course you’re going over the line of a friendly unsolicited warning and you’re implying a threat. No? The point is that evangelists do not pay much attention to being told, “Thanks, I’ll need to think about that for a good long time.” It’s the incessent yammering part that borders on racketeering to me, the target audience of the very young, the lonely, the weak-minded.

I think there are clear warnings and clear threats, but I also believe there’s a large area where they’re very hard to distinguish, and that’s where a judgment call comes in. I don’t think I’m willfully labelling all warnings “threats” as a ploy to support my weak argument. I’m claiming that in the gray area between “clear warning” and “clear threat”, it would be reasonable for courts to find evangelism to be more threatening than they have.

Of course they’re usually trying to sell you something that extends beyond the mere acknowledgment of their message. Do you think you can get rid of them by saying “Okay, I understand you”? Do they not want things, such as your time and attention, beyond that point? Do they not disregard “Please don’t come around here anymore” as freely as if you’ve said nothing at all?
To the contrary: any conversation is encouragement to them.

One gray area where a warning is seen as threatening:
Isn’t it threatening to say to your black neighbor, “Listen, this is a fiercely racist neighborhood, and I think you’d better take care because some nasty folks–not me, mind you, I like black people, honestly, I do–would like nothing better than to beat up black schoolchildren walking to and from school, and leave dead cats in their mailboxes, and burn fiery crosses on their lawns”? How about if this friendly neighbor came around, oh, once a month to reiterate his friendly message, despite the neighbor’s telling him “I don’t want to hear this shit anymore.”? This isn’t a threat? This isn’t an attempt at intimidation? He’s not claiming to want to do this himself, or even to agree with those who do., or to have any power whatsoever to prevent this behavior. He’s just talking, right? Or is he violating the civil rights of his neighbor? How about if the neighbor’s kids are harassed coming and going to school, or if his property is damaged and this friendly neighbor keeps coming around saying, “See, I told you, you’d be better off moving to a neighborhood that likes your kind better.”?

78

If the problem is harassment, that is handled by different laws. You seem to have a problem with repeated solicitation. If I tell you not to come onto my property and you repeatedly do so, I don’t go after you by restricting your speach, but by claiming harassment. There are restraining orders for that, and other criminal charges, not speech laws.

And yes, you can imply a threat and there are grey areas. But you seem to be setting an extremely low and uncommon threshhold for religious speach. If the same guy was coming around asking espousing the view that if you didn’t vote Libertarian then the same things would happen, would you react the same way? If so, then it has nothing to do with religous prostlytzing.

You can always get rid of people by walking away or asking them to leave you alone. Laws are on the books to take care of that. You don’t want people knocking on your door, put up a No Solicitations notice. If they persist, deal with them through the police that way, not based on what they are saying. At that point, it doesn’t matter what they are saying.

79

pseudotriton ruber ruber, trespassing and harrassment laws have been explained to you repeatedly in this thread. Why do you insist on going back over the same ground over and over?

If the neighbor in the racist neighborhood keeps coming over to your house after you have told him to stop, he is committing trespass and may be arrested, regardless of why he comes over or what he says when he comes over.

If the church of rot prevention representative keeps coming to your house after you have told him to stop, he is committing trespass and may be arrested, regardless of why he comes over or what he says when he comes over.

Of course, you have to actually pick up the phone and call the police, but that is true any time you are the victim of a crime.

It is expected in GD that one read and learn what has already been repeatedly explained. You keep trying to rephrase a question that has been asked and answered - regardless of how many different ways you phrase it, proselytizing is not equivalent to racketeering, either in law or in fact, and trespass is a crime whether or not the trespasser committed trespass in order to preach to you.

Can we PLEASE move on? Do you have any other questions?

Sua

80

If my neighbor, a nice old guy, stops by every day to chat and pass the time, blathering on pointlessly about nothing much at all and boring me to tears, (much as I seem to be doing to you, Sua, in this thread), it seems I don’t have any legal recourse at all. I can not answer my doorbell, I can slam the door in face when I open it, I can ask him to stop ringing my doorbell except in case of emergency, but it seems that I would have a very hard time even persuading a cop to have a stern word with the guy. I can’t do much to him because he’s not doing anything but being a bit dull for my active Yuppie lifestyle, and that’s not a crime.

If he stops by every day and makes sinister, racist, vaguely threatening remarks, after I askl him to stop, though, you say I can have him arrested for trespassing. That’s not a content-based distinction?

Let me ask one more, perhaps more specific, case-law kind of question: does anyone know of any attempts to pursue aggressive ethically-dubious proseletyzing AS racketeering? If this tack has never been pursued by any lawyer in the history of the Republic, then I guess I have no choice but to concede that this is my own personal hobbyhorse and to apologize for wasting so much of everyone’s valuable time. If someone has done this, however, I’d be interested in reading what the judge had to say about the merits of the case.