One of the unusual aspects of student speech law is that some problems are seasonal. For example, showdowns over high school yearbook themes tend to happen in the early fall, while colleges trying to illegally retaliate against newspaper advisers tend to act in the summer. And early next year, when I'm teaching an online course in student media law through Michigan State, it'll be the season for religious censorship lawsuits.
The spring harvest of confiscated candy canes and censored proselytizing editorials comes from seeds sown by students and administrators working overtime to be offended or threatened by the sincere expressions of religious belief of their peers.
It's kind of astonishing that we still have lawsuits like this, since it should be obvious to any public employee that has spent any degree of time in the United States that students have the right to express religious viewpoints, but apparently, that message still hasn't gotten to everyone yet.
In the self-interest of minimizing my own workload in the spring, I'd like to talk to the offended masses now, and ask them to consider the following things before advocating the censorship of religious speech with which they disagree. (If you don't feel offended by religious speech, but know someone who is, please forward this along.)
At public institutions, there's always someone who believes that you can't distribute religious messages in schools; or that a newspaper funded by a public college can't express a religious viewpoint; or some other perversion of the First Amendment that, in their view, requires them to actively censor someone's religious speech.
Here's a general principle to apply in your understanding of Constitutional law: if your interpretation of freedom of speech and freedom of religion makes you think that you need to censor religious speech, you should consider the possibility that you don't entirely understand the concept of "freedom."
At its core, the First Amendment is intended to be a framework for disagreement. It is a rule written by dissenters, for dissenters, on the theory that sometimes, the unpopular people are right. And while political speech was the primary concern of its authors, its principles are no less applicable to religious speech.
Much of the opposition to religious speech in schools is based on some misguided theory that the conceptual separation between church and state requires the absolute sanitization of religious speech from state-funded institutions. But you can't separate two things by having one obliterate the other--if anything, that's precisely the entanglement the wall of separation is designed to prevent.
(Anytime someone criticizes Jefferson's "wall of separation," I wonder if they really understand that the primary benefit of the wall accrues to religion. The government doesn't need protection from religion. The government has guns and money and a military of the world's best soldiers sworn to protect its principles. It's religion that needs protection from the government, because governmental authority--like that wielded by administrators at public colleges--can crush religious speech. So, to any religious people reading this: the wall is good. You want the wall.)
The purpose of the "wall of separation" is not to prohibit a diversity of religious speech; it is to prohibit the government from picking a side in that conversation. And that's just what public employees are doing if they try to stop a religious speaker at a public institution--they're picking a side, whether that's another religion or merely an opposition to that particular religious viewpoint.
Sometimes, opponents to religious speech bring up the use of student activity fees as a justification for attempting to censor religious speech in student publications. The Supreme Court has already decided this doesn't create any Constitutional problem, but if you're not interested in reading the case, here's the short version: having set up a viewpoint-neutral system of allocating funds, someone's religious viewpoint can't be the basis of a denial of funds.
Furthermore, where student newspapers are concerned, the government funds the paper to exist as an educational opportunity. When the paper exists, the government got its money's worth, and there's no governmental purpose in filtering religious speech from what the newspaper ultimately prints.
It's a bit like when the federal government funds a program designed to help drug addicts get clean. It's of no interest to the United States of America whether you find God on your way to getting clean or not, and as long as the funding goes strictly to the secular purposes of the program, the existence of a faith-based component in a legitimate treatment program doesn't disqualify it from government funding.
The obligation of the First Amendment is to tolerate speech and religion. It doesn't matter if the religious speakers are offensive, exclusive, or insincere. It doesn't even matter if they are objectively wrong, or provably false. The entire gamble of the First Amendment is the idea that good information wins out over bad in the long run, and that on a fair playing field, the best ideas will find the broadest audience.
If you believe your ideas are right, you should not be afraid to have them challenged. And if you don't think your convictions are strong enough to share the room with someone else's, you should consider the possibility that your convictions deserve to be shaken.
So, my message to those who would censor religious speech this holiday season: have faith. Have faith in our system of government; have faith that students are not so fragile that they can't abide disagreement; and have faith that the people who oppose your ideas will extend you the same courtesy. Mostly, have faith that it's okay for other people to have their own faith.
Full disclosure: I get paid to teach the student media law class for Michigan State, and they are absolutely my second-favorite football team in the Big 10. Although, if Michigan State lets me sell my signed jerseys, I might change my mind...
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