an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In 1974, Alexander Solzhenitsyn wrote an essay titled, To Live Not by Lies (original here). This was not legal analysis; Solzhenitsyn had bigger tasks at hand. Rather, it was a call to his countrymen to refuse to participate in the spread of what they saw as lies:
Let each of us choose his own path through our timidity: will he remain the conscious servant of the lie (of course, not because of his inclination, but to feed his family, to raise his children in the spirit of the lie!), or has the time arrived for him to shake himself off and become an honest person, deserving of respect of his children and of his contemporaries. And from that day forward ... he will not write, not sign, not print through any means even a single phrase that distorts, in his opinion, the truth ... [or] in painting, sculpture, photography, music, or through technological ... depict, accompany, or retransmit even a single lying thought, not a single distortion of the truth, that he recognizes.
Only a refusal to participate in the spread of lies, Solzhenitsyn argued, could help heal not just a broken social and political system, but the integrity, self-respect, and political efficacy of the people who were broken by it. And such a refusal will also embolden others to overcome their fear, by seeing that they are not alone in their views.
The very same insight, it seems to me, is at the heart of two different rights claims in America today. The first, of course, is a claim of the gay rights movement, which has long argued in favor of gays’ and lesbians’ coming out of the closet. Live not by the lie: Refuse to pretend that you fit within the heterosexual orthodoxy. Proudly reveal to the world who you are, making clear that you see your identity and your love as equally worthy to others’. Only that way can you keep (or regain) your integrity and self-respect. Only that way can you avoid complicity with an unjust system. Only that way can you effectively fight for what is right. And only that way can society have its eyes opened to your views and your community’s needs.
The second is a claim of religious people who want to refuse to participate in what they see as the creation and dissemination of pro-gay-rights advocacy. Most recently, this claim has been raised in the New Mexico Elane Photography v. Willock litigation, but a similar claim arose in Hurley, the St. Patrick’s Day parade case, and a related claim arose in Boy Scouts v. Dale. Live not by the lie, they say: Refuse to participate in expression that conveys the message that same-sex love and commitment is as morally worthy as opposite-sex love and commitment. Proudly repeat to the world your commitment to your understanding of the Bible (or the Torah, Koran, or other works), and do so in a way untainted with any support of the contrary view. Only that way can you keep (or regain) your integrity and self-respect. Only that way can you avoid complicity with an unjust system. Only that way can you effectively fight for what is right. And only that way can society have its eyes opened (or reopened) to your views and your community’s needs.
To be sure, many people disagree about what the truth is here and what is the lie. But Solzhenitsyn’s point, I think, was broader than just a desire to fight what he thought was lies, and it certainly wasn’t to fight what the law or society saw as lies. It was to encourage each of his listeners to shun what that listener saw as lies.
This of course leaves the question of how the law -- and society -- should react to such claims of moral or political right, and also of how broadly these claims of right go. Should people be free to refuse any participation in the spread of falsehood, for instance by refusing to allow speakers they disapprove of on their property? (That was the issue, recall, in PruneYard Shopping Center v. Robins and in Rumsfeld v. FAIR, as well as in more recent controversies in which various groups wanted to refuse to allow same-sex commitment ceremonies on their private property.) Should they only be free to refuse such participation when it comes to their crafting their own compiled expression, such as a parade or a newspaper, or to themselves creating expression, for instance when a wedding photographer declines to photograph same-sex ceremonies in a way that portrays them as beautiful and holy, a freelance editor declines to edit an autobiography of a proudly out-of-the-closet gay man, or a wedding singer refuses to sing a song that (in context) endorses a same-sex ceremony that he disapproves of? (The same questions can be asked when creators refuse to participate in interfaith weddings, or racially or ethnically mixed weddings, or for that matter religious events of religious organizations that they condemn.) Or should the law require parade organizers, the Boy Scouts, writers, photographers, and singers to abide by nondiscrimination norms, even when that means compelling them to distribute or create speech that they see as “the Lie”?
I’ve touched on this question in past blog posts, and in an amicus brief that I filed on behalf of Prof. Dale Carpenter (author of a leading history of the Lawrence litigation), the Cato Institute, and myself. My view is that the Court’s compelled speech cases protect those who create First-Amendment-protected expression -- whether photographs, books, press releases, song performances, or parades -- from having to create or distribute speech they see as false; those First Amendment cases do not, however, protect others, such as property owners, limousine drivers, caterers, and the like.
The line distinguishing unconstitutional speech compulsions from constitutional compulsions of nonspeech conduct, I argue, should generally track the line distinguishing unconstitutional speech restrictions from constitutional restrictions on nonspeech conduct. Just as First Amendment law may allow monopolies, discretionary licensing, and other substantial restrictions on hotel, limousine, and catering company operators, but forbids similar restrictions on writers, photographers, or newspapers, so First Amendment law may allow compelling conduct by hotels, limousines, and caterers but not by writers or photographers. Any religious objections by hotel owners and caterers would have to be addressed not by free speech law but by the law of religious freedom, under state and federal Religious Freedom Restoration Acts and, in some states, state constitutional provisions; how that analysis should come out is a difficult matter, which I touch on briefly here.
But in this post, I want to make a broader point: Wherever the legal system might ultimately draw the line, people’s interest in “living not by lies” should be taken seriously, and should often be respected -- even if we disagree with those people about what is lie and what is truth.
Eugene Volokh is Gary T. Schwartz Professor of Law at UCLA.You can reach him by email at volokh at law.ucla.edu