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freedom

Can’t Say Anything Anymore

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Some claim that political correctness has gone to far and that one cannot say anything anymore. As evidence, people point to examples of celebrities who have gotten in trouble for saying things that some regard as racist, homophobic or sexist. They also point to existence of trigger warnings, safe spaces and cases in which speakers on the right have been harassed or denied the chance to speak.

While the moral right of free expression and the legal right of the first amendment should be protected vigorously, there is the question of whether it is true that one can’t say anything anymore. By this people do not mean that they cannot say what they want; their concern is with the consequences if they do so.

My view on free expression is a stock adoption of Mill’s principle of harm: a person is free to say what they will and the only thing that warrants limiting this liberty is to protect others from harm. As I have argued in past essays, I do not consider offensive speech to be harmful in a way that warrants restricting it. I do admit that there is a large grey area between expression that should clearly be restricted (such as the famous yelling of “fire”) and expressions that should not. I am happy to debate about what things I see as gray should be moved one direction or the other, but I adopt a principle of erring on the side of freedom in cases of doubt and place the burden of proof on those who would restrict the liberty of expression. In fact, I encourage people to freely express whatever hateful views they might have—that way everyone else can know what sort of person they are. That said, I am aware of an obvious problem.

The problem is, of course, sorting out whether the harm generated by expression warrants restricting that expression. As noted above, I hold to a relatively high bar—what is merely offensive, insulting, enraging and so on should not be restricted. My view here is analogous to my view on same sex marriage: some people claim that it is deeply offensive to their beliefs but allowing it clearly does them no meaningful harm. Perhaps it is ironic that the same principle I have long used to defend same sex marriage I also use to defend the expression of people who oppose same sex marriage on the grounds they find it offensive to their beliefs.

While I do hold that people should be free to say almost anything, I also agree with another of Mill’s views: Mill made it clear that while people should be free to do much as they wished when doing so did no harm, he was also clear that people should not expect to be free of the consequences of their actions. While racism, sexism and such are still popular in the United States, expressing such views can come with a social cost and consequences. In some cases, people can get fired for such expressions—which is sometimes out of proportion to their action. I do agree that the consequences should be proportional to the offense—which is a basic principle of punishment I stole from John Locke.

While it is just and right to be upset in cases in which the punishment exceeds the misdeed, there is far too much hand wringing and complaining that people face any consequences for expressing racist, sexist, etc. views. Expression has always come with consequences; the rage now seems to be mostly because members of advantaged groups sometimes pay a price for saying things they used to be able to get away with and they are mad about this. Yes, I do agree that the consequences should be proportional: someone who once tweeted something hateful years ago should not be fired today if they not terrible now. But for a person to be outraged they cannot spout off racist, sexist, and other such things with no consequences is foolish. It is on par for someone to complain that they can’t say anything because they are not free to shout vulgarities in school, church or at work without suffering some consequences. So, one is free to say anything, but not free of the possible consequences. Just as it has always been.

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Diversity & Freedom

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In the early days of higher education, most universities were largely the domain of white males. There were, of course, some black schools and women’s colleges. Through concerted efforts, campuses have become more inclusive—though there are still clearly issues in access to higher education. This opening of the campuses has generally been regarded as a positive thing and few would now argue that blacks or women should be excluded from any campus in America. However, some think that the current push for diversity is a violation of the freedom of faculty.

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One concern is that some schools require faculty to submit written statements of their commitment to diversity as part of the tenure application process, job application process and in other contexts. Some see this as compelled speech because it is forcing faculty to pledge to an ideology. Even if it is compelled speech, the First Amendment only applies to public employers—private schools are free to do as they wish since employees are free to go elsewhere. But the moral concern remains even for private employers: just because they can legally compel speech does not entail that is right to do so.

It is worth noting that even public schools can legitimately compel actual and potential faculty to provide statements in writing if they wish to advance or be employed. For example, most jobs require a letter of application, a teaching statement and a research statement. One can opt out—but this all but guarantees that one will not be hired. As another example, the applications for tenure and promotion require the faculty to provide documentation. This is, obviously enough, not a violation of the freedom of expression—even when a job applicant must present a philosophy of teaching or research. This is because they are not forced to commit to any specific philosophy. In contrast, a pledge to diversity does compel assenting to a specific set of values, which would seem to violate the right to free expression, the right to freedom of thought and academic freedom. As such, requiring faculty to submit such statements or accept such values would seem to be morally wrong.

However, a reasonable counter is to point out that faculty are expected to accept certain values when they are hired and to continue their employment. For example, they are expected to accept the rules of academic conduct and enforce them in their classes. As another example, they cannot hold to and act on the view that it is acceptable to exchange grades for sex, favors or money. As a third example, they must accept they cannot preach their religion to the class or recruit terrorists. And so on, for a multitude of moral and ideological values. As such, faculty are already expected to accept and hold to many values as a condition of their employment. It could thus be argued that requiring a statement of commitment to diversity is not an unwarranted imposition on freedom.

One obvious counter is that while faculty do have to agree to professional ethics and to follow the rules of the school, they are not required to provide specific statements of their commitment to these values—they just need to avoid (getting caught) violating them.  For example, I was not required to write a statement about how I would not accept favors for grades, although I am aware that such a thing would be unacceptable and grounds for firing. Likewise, I was not required to provide a diversity statement, but I am aware that creating a hostile classroom would be unacceptable and probably result in being fired. While this is a form of tacit acceptance, it does not compel an active statement, and this can be seen as a critical difference.

Those in favor of diversity statements might contend that they are not compelled speech since they are on par with the statement of teaching philosophy and statement of research philosophy. A person is free to include in their teaching and research statements values that go against what the school is looking for.  Such candidates are unlikely to get hired (or get tenure). Likewise, people are free to include in their diversity statement an argument against diversity and a statement of their opposition. But they would be unlikely to be hired if they go against the stated values of the institution.

Those opposed to diversity statements could expand on the point that these statements are different, since they have a clear and expected answer and involve a specific set of values. They could also note that unlike things like academic honesty and shaking students down for cash or sex, there is not a broad consensus on diversity, and this is a matter that divides people politically.

Proponents of the diversity statements could counter by contending that the value of diversity is on par with the established and expected academic values. They could also note there are people who sincerely hold values directly opposed to key values of the academy, such as honesty and not exploiting students, and consider these political views as well. So, if these values can be used to exclude certain people, so can the values connected to diversity. Schools obviously need to take a stand on certain values, but there is still the reasonable question about which values should be embraced.

While I do agree that campuses should be diverse in the sense that no one should be unjustly excluded nor unjustly subject to hostility, I also oppose forcing faculty to provide explicit and specific diversity statements. My main concern is this does set a precedent for forcing faculty to explicitly endorse, in writing, certain values and the next time the values could be ones I disagree with.  

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Free Speech Executive Order I: Conservative Arguments

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President Trump recently signed an executive order directing federal agencies to link funding for higher education to how universities enforce “free inquiry” on campus. This order was motivated by the claim that professors have endeavored to prevent conservatives from challenging the ideology of the far-left. At this time, the details of how the order will be implemented are lacking.

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Since I am often cast as a lefty, it would be expected that I oppose this order. However, I will not be arguing this matter from a leftist perspective. Rather, I will advance arguments enshrined in classic conservative principles in opposition to this order.

One key principle professed by conservatives is the idea of small government. This principle is supposed to manifest in opposition to unnecessary laws, in opposition to government overreach, and in support of local governance. This executive order clearly violates this principle.

First, the order is utterly unnecessary as a means of protecting free speech on college campuses. While some universities have endeavored to keep controversial conservatives and speakers like Richard Spencer off their campuses, the existing free speech laws have sufficed to thwart these efforts. In the case of Richard Spencer, the University of Florida had to let him speak on campus (and the state paid for the security). In the case of public institutions, the first amendment protections apply—thus making it clear that the executive order is attempting to order what already exists: legally protected free expression.

It might be objected that private universities that receive public money would still be free to exclude people from speaking on campus. The easy and obvious conservative reply is that these private universities are private. So, like any private business, they have no legal obligation to provide avenues for free speech. There are, of course, some exceptions—but these are covered by existing laws.

Second, the order is a case of government overreach that seems to be aimed at picking winners and losers in the realm of inquiry. Conservatives profess an opposition to such interference in the free marketplace of ideas, so the state coming down in support of one side (in this case, explicitly going after the allegedly leftist professors) should be anathema to them. Even if, in this case, Trump purports to be putting the might of the state on their side and against those they disagree with.

It might be objected that the order is aimed at making life fair and using the compulsive power of the state to create ideological diversity on campuses. But conservatives have long argued that life is not fair and that the compulsive power of the state should not be used to serve an agenda of diversity. Principled conservatives would not embrace this big government approach—even if it purports to be in their favor.

Third, this order goes against the core conservative principle of local governance. Conservatives have often argued for state and local rights when it comes to making decisions. This order places the federal government over state and local control, making such decisions in faraway Washington, D.C. While a conservative would certainly favor more conservative expression on campuses, to jam this down the throats of the people and to sweep aside states’ rights would be an unacceptable means of doing so.

Conservatives also make a point of being for fiscal responsibility and profess opposition to government bloat. While the order itself comes with no cost, the actual enforcement will require a significant bureaucracy. One obvious analogy is that of Title IX. This law prohibits discrimination based on sex by educational programs receiving federal funding and resulted in the growth of bureaucracy in the federal government and on campuses. If Trump’s executive order is going to have any teeth at all, it will need a similar bureaucracy in place. It will also need a set of standards for sorting out what counts as violating “free inquiry” in all the relevant contexts on campus ranging from the classroom to speaker invitations.

While I am not familiar with the inner workings of the federal government, I am familiar with how universities operate. This order must generate a demand for data on compliance, which means the creation of an office on each campus to gather and report this data as well multiple committees. The office will require administrators and staff. In the case of state institutions, this will require more taxpayer money to fund. In the case of private institutions, they will need to increase tuition. While these costs will not be extreme, they will add even more to the rising cost of education.

Thus, while a conservative would rightfully rejoice at having more conservative thought on campuses, doing this by means of the federal government would be a violation of conservative principles. As such, conservatives should oppose this executive order on conservative grounds.

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Wedding Cakes & Freedom, Once Again

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The United States Supreme Court is, as of this writing, considering a case involving a wedding cake. The gist of the battle is between the right of freedom of expression and the right to not be discriminated against. One the one side is a Christian baker who refused to bake a wedding cake for a same-sex wedding based on his religious belief that same-sex marriage is wrong. On the other side is the couple who claim that they are being discriminated against by this refusal.

A primary argument being advanced in the baker’s defense is based on the 1st Amendment: being forced to make a cake for a same-sex wedding would violate his freedom of expression. This right of free expression has a clear legal foundation and has very strong moral foundations, courtesy of various philosophical arguments in its favor. But, of course, there are also strong legal and moral foundations for not allowing discrimination against potential customers.

While the freedom of expression is usually presented as a right against being silenced, it also provides the right not to be compelled to engage in an act of expression. This freedom from compelled expression provides a person with a moral (and a legal) right to refuse certain services.

This line of reasoning does have considerable appeal and I endorse it both on philosophical and selfish grounds. I operate a writing business in which I get paid to write books. I accept that I have no legal or moral right to refuse business from someone just because she is gay, Jewish, Christian, or a non-runner. However, my writing is an act of expression. So, my freedom of expression grants me a moral right to refuse to write in support of views I oppose. For example, I have the right to refuse to write a tract advocating the persecution of Christians. This is because the creation of such work entails endorsement of a view I oppose. If I write a tract in favor of persecuting Christians, I would be unambiguously expressing my support of the idea. In such cases, an appeal to freedom of expression would seem quite relevant and reasonable. This can be generalized into the principle that it is wrong to compel expression and that people have the right to refuse compelled expression.

Since I am consistent, I extend this principle to everyone and do not limit it merely to myself or those I agree with. So, if a fellow author believes that her religion condemns same-sex marriage as wickedness, then she would be protected by the freedom of expression from being required to write in favor of same-sex marriage. If a LGBT group approached her with a lucrative offer to pen a piece in favor of gay marriage, she would have the moral right to reject it. They have no moral right to expect her to express views she does not hold, even for cash.

This principle does, of course, have limits. One obvious limit is that my right of freedom of expression does not entail that I have a right to forbid my books from being sold to people I disapprove of or disagree with. For example, it does not give me the right to forbid Amazon from selling my books to racists, smug liberals, or smokers. This is because selling a book to a person is not an endorsement of that person’s ideas and is thus not compelled expression. I do not endorse intolerant atheism just because an intolerant atheist can buy my book.

As such an author who believes her religion condemns same-sex marriage could not use freedom of expression to demand that Amazon not sell her books to homosexuals. While buying a book might suggest agreement with the author, it does not suggest that the author is endorsing the purchaser. So, if a gay person buys the author’s anti-same-sex marriage book, it does not mean that the author is endorsing same-sex marriage. Likewise, if Donald Trump buys one of my books, it does not mean that I am endorsing Trump.

Not surprisingly, the case before the supreme court does not involve a Christian writer being asked to write pro-gay works—writers clearly have a right to refuse such jobs. As noted above, the case being considered involves a wedding cake. The key question, then, is selling a wedding cake more like being compelled to write in favor of a position one opposes or like someone buying a book one has written? If it like writing, then the freedom of expression would apply. If it is like someone buying a book, then the freedom of expression would not apply.

To get the obvious out of the way, refusing to bake a cake for a wedding because the people involved were Jewish, black, Christian, white, or Canadian would seem to be discrimination. If the person refusing to do so said that baking a cake for a Jew endorsed Judaism, that baking a cake for a  a black wedding endorsed blackness, or that baking a wedding cake for  Canadian endorsed Canada, they would be regarded as either joking or crazy.  But perhaps it can be argued that baking a wedding cake for a same-sex couple would be a compelled expression of agreement or endorsement.

On the face of it, making a wedding cake would not seem to be expressing approval or agreement with the wedding, regardless of what sort of wedding it might be. Selling someone food would seem to be like selling them a book—their buying it says nothing about what I endorse or believe. When the pizza delivery person arrives with a pizza when I am playing D&D, I do not say “aha, Dominoes endorses role-playing games!” After all, they are just selling me pizza. Likewise, if a Nazi buys my books on Amazon, I am not therefore endorsing Nazi ideology.

In the case of the wedding cake, it could be argued that it is a special sort of cake and creating one does express an endorsement. By this reasoning, a birthday cake would entail an endorsement of the person’s birth and continued existence, a congratulations cake would entail an endorsement of that person’s achievement and so on for all the various cakes.  This, obviously enough, seems implausible. Making me a birthday cake does not show that Publix endorses my birth or continued existence. They are just selling me a cake. If a baker makes a congratulatory cake, they do not require customers to prove that the congratulations is for something the baker agrees with. It also does not follow that a baker who bakes such a cake is therefore endorsing what the cake congratulates. For example, if someone gets a friend a cake congratulating them on their first murder, it does not follow that the baker approves of murder. As such, selling a person a wedding cake does not entail approval of the wedding. For example, if a baker sells a wedding cake to a person who has committed adultery and is remarrying so they can steal from their new spouse, this does not entail the baker’s approval of adultery or theft.

It can easily be argued that bakers do have the right to refuse a specific design or message on the cake. For example, a Jewish baker could claim that he has the right to refuse to create a Nazi cake with swastikas and Nazi slogans. This seems reasonable—a baker, like a writer, should not be compelled to create content she does not wish to express. Given this principle, a baker could rightly refuse to bake a sexually explicit wedding cake or one festooned with gay pride slogans.

However, creating a plain wedding cake would not seem to be an expression of ideas and would be on par with selling a person a book rather than being forced to write specific content. By analogy, I cannot refuse to sell a book I have written to a person because he is an intolerant atheist, but I can refuse a contract to write in support of atheism.

The obvious counter would be to argue that making a generic wedding cake is an act of creation and is thus an expression. As such, it would be protected by the freedom of expression. While this does have some appeal, it does run into some problems.

One obvious problem is that accepting this as a general principle would entail that anyone who creates anything would thus have the right to refuse to sell their work based on their values. So, for example, an atheist could forbid Amazon to sell their books to Christians, Muslims and Jews. As another example, a cook at a restaurant could refuse to sell a meal to people whose values they opposed. Perhaps even a surgeon could claim that they express their views via surgery and thus could not be compelled to perform surgery on someone whose values they reject. As should be clear, this would essentially be a license to discriminate and thus is problematic.

This problem can, of course, be addressed by carefully restricting what counts as expression. However, if baking a generic wedding cake would count, then this would open the door quite wide in terms of what would count as expression. After all, if a generic cake is expression, then it would seem to follow that so is a pizza, a piece of furniture, a shed, or a shirt.

It could be argued that making a wedding cake is special because of the event. But, the same principle would need to be extended to all things made for events that one might oppose. This would also seem to open the door wide to discrimination.

The problem can also be addressed by carefully restricting what counts as discrimination and what does not. For example, laws can easily be created that make it discrimination to not sell to someone based on their religion, but not discrimination to refuse based on their sexual orientation. This, of course, does not address the moral concerns about discrimination.

Another obvious problem is that this approach would entail that selling a person something one has created would be an act of endorsement towards that person. In the case of the wedding cake, the claim is that being forced to sell a generic cake would be to express approval of the wedding. But, as noted above, selling something to someone is not in itself an act of approval. If, for example, Nazi’s buy handmade Tiki torches to wave at their rally, then this does not entail that the maker is endorsing Nazis. Naturally, the torch maker has every right to refuse to carve Nazi symbols into their torches. Likewise, if a gay couple buys a wedding cake for their wedding, the baker is no more endorsing the wedding than the gas station that will sell them the gas they will use to drive to their wedding. Or the sub maker who will sell them the subs that will fuel them through their gay wedding night.

In light of the above, selling a generic wedding cake is not compelled expression and hence a baker does not have the right to refuse to sell one to a same-sex couple. But, a suitably custom wedding cake would be an act of expression and a baker has every right to refuse any design they do not endorse. To go back to the book analogy, my being unable to forbid sales of my books is not compelled expression—even though the books are expressive creations. However, being forced to write a custom book specifically for a view I do not endorse would be compelled expression.

 

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Is Baking a Gay Wedding Cake an Endorsement of Same Sex Marriage?

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Indiana’s version of the Religious Freedom Restoration Act set off a firestorm of controversy. Opponents of the law contended that it would legalize discrimination while some proponents argued that it would do no such thing. Some proponents contended that it would allow people and businesses to refuse certain services to homosexuals, but that this should not be considered discrimination but a matter of freedom of expression. This approach is both interesting and well worth considering.

In the United States, freedom of expression is a legally protected right. More importantly, from a philosophical perspective, it is also a well-supported moral right. As such, an appeal to freedom of expression can be a useful defense.

In the case of the Religious Freedom Restoration Act, the argument from freedom of expression would certainly not work in regards to justifying general discrimination in regards to goods and services. For example, the owner of a pizzeria would be hard pressed to claim that not being allowed to refuse service to a person just because she is gay violates his freedom of expression. However, freedom of expression might be applicable in certain cases.

While the freedom of expression is typically presented as a right against being silenced, it also provides the right not to be compelled to express views (specifically views that one does not hold or that one opposes). The right to not be compelled in one’s expression would thus seem to give a person a moral (and a legal) right to refuse certain services.

This line of reasoning does have considerable appeal. For example, I operate a writing business—I write books to be sold and I do freelance work. I obviously have no moral right to refuse business from someone just because she is gay, Jewish, Christian, or a non-runner. However, my writing is clearly an act of expression. As such, my freedom of expression grants me a clear moral right to refuse to write a tract endorsing Nazism or one advocating hatred of Christians. I also design book covers and do some graphic work (graphic as in visual, not as in adult content). Since these are clearly expressions, I would have the moral right to refuse to do a book cover for book expressing ideas I regard as morally wrong, such as eliminating religious freedom in favor of enforced atheism. This is because the creation of such work entails a clear endorsement and expression of the ideas. If I write a tract in favor of white supremacy, I am unambiguously expressing my support of the idea. If I knowingly do a cover for a book on white supremacy, then it would be reasonable to infer I agreed with the ideas. In such cases, an appeal to freedom of expression would seem quite relevant and reasonable.

Obviously, an author or cover designer who believes that her religion condemns same-sex marriage as wickedness would also be protected by the freedom of expression from being required to express views she does not hold. If a LGBT group approached her and offered her a fat stack of cash to pen a piece in favor of gay marriage, she would have the moral right to reject their offer. After all, they have no moral right to expect her to express views she does not hold, even for fat stacks of cash.

In contrast, I could not use freedom of expression as a reason to not sell one of my books or works to a person. For example, freedom of expression does not grant me the right to forbid Amazon from selling my books to Nazis, racists, intolerant atheists, or non-runners. After all, selling a book to a person is not an endorsement of that person’s ideas. I do not endorse intolerant atheism just because an intolerant atheist can buy my book.

Likewise, the author who believes her religion condemns same-sex marriage as wickedness could not use freedom of expression to demand that Amazon not sell her books to homosexuals. While buying a book might suggest agreement with the author (but it obviously does not entail it—I have plenty of philosophy books whose contents I regard as being in error), it does not suggest that the author is endorsing the purchaser. So, if a gay person buys the author’s anti-same-sex marriage book, it does not mean that the author is endorsing same-sex marriage.

Not surprisingly, no one has claimed that religious freedom acts are needed to protect Christian writers from being forced to write pro-gay works. However, it has been argued that the acts are needed to protect the freedom of expression for people such as caterers, bakers, and photographers.

The argument is that catering a wedding, baking a wedding cake, doing a wedding or engagement photo shoot and similar things are expressions and are thus covered by the right to freedom of expression.

Obviously enough, if these activities are expressions analogous to the paradigm cases of speech and writing, then the freedom of expression does protect them. As such, the key question is whether or not such actions are acts of expression such that engaging in them in relation to a same-sex wedding would express an endorsement of same-sex marriage.

To get the obvious out of the way, refusing to cater, photograph or bake a cake for a wedding because the people involved were Jewish, black, Christian, white, or Canadian would clearly be discrimination. If the person refusing to do so said that baking a cake for a Jew endorsed Judaism, that catering a black wedding endorsed blackness, or that photographing Canadians being married was an endorsement of Canada, she would be regarded as either joking or crazy.  But perhaps a case could be made that catering, baking and photographing are expressions of agreement or endorsement.

On the face of it, catering food for a wedding would not seem to be expressing approval or agreement with the wedding, regardless of what sort of wedding it might be. Selling someone food would seem to be like selling them a book—their buying it says nothing about what I endorse or believe. When the pizza delivery person arrives with a pizza when I am playing Pathfinder, I do not say “aha, Dominoes endorses role-playing games!” After all, they are just selling me pizza.

In the case of the wedding cake, it could be argued that it is a specific sort of cake and creating one does express an endorsement. By this reasoning, a birthday cake would entail an endorsement of the person’s birth and continued existence, a congratulations cake would entail an endorsement of that person’s achievement and so on for all the various cakes.  This, obviously enough, seems implausible. Making me a birthday cake does not show that Publix endorses my birth or continued existence. They are just selling me a cake. Likewise, selling a person a wedding cake does not entail approval of the wedding. Obviously enough, if a baker sells a wedding cake to a person who has committed adultery, this does not entail her approval of adultery.

It could be argued that bakers have the right to refuse a specific design or message on the cake. For example, a Jewish baker could claim that he has the right to refuse to create a Nazi cake with swastikas and Nazi slogans. This seems reasonable—a baker, like a writer, should not be compelled to create content she does not wish to express. Given this principle, a baker could refuse to bake a sexually explicit wedding cake or one festooned with gay pride slogans and condemnations of straight “breeders.” However, creating a plain wedding cake is not the expression of ideas and would be on par with selling a person a book rather than being forced to write specific content. By analogy, I cannot refuse to sell a book to a person because he is an intolerant atheist, but I can refuse contract to write in support of that view.

Since photography is a form of art (at least in some cases), it is certainly reasonable to regard it is a form of artistic expression. On this ground it is reasonable to accept that photography is protected by the freedom of expression. The key issue here is whether taking pictures commercially is like writing words—that is, photographing something is an endorsement of the activity or if it is like selling a book, which is merely selling a product and not an endorsement.

On the face of it, commercial photography would seem to be like selling a book. A person who is paid to cover a war or a disaster is not taken to be endorsing the war or the disaster. One would not say that because a person took a photo of a soldier shooting a civilian that he endorse that activity. Likewise, a person photographing a wedding is not endorsing the wedding—she is merely recording the event. For money.

It might be countered that a wedding photographer is different from other commercial photographers—she is involved in the process and her involvement is an expression of approval. But, of course, commercial photographers who take photos at sports events, political events, protests and such are also involved in the process—they are there, taking pictures. However, a photographer hired to take pictures of Hilary Clinton does not thus express her support (or vote) for Hilary. She is just taking pictures.  Fox News, after all, takes video and photos of Hilary Clinton, but they do not thereby endorse Hilary. As such, the freedom of expression would not seem to grant a commercial photographer the right to refuse to photograph a same-sex wedding on the basis of an appeal to freedom of expression since taking photos does not involve endorsing the subject.

That said, another approach would be to argue that while taking a photo of an event does not entail endorsement of the event, an artist cannot be compelled to create a work of art that she does not wish to create. Since a photograph is art, a wedding photographer cannot be compelled to create an image of a same-sex wedding, just as a writer cannot be justly compelled to write a certain sort of book. This certainly has considerable appeal. After all, a photographer would seem to have every right to refuse to take photos of a wedding orgy or even of a tastefully nude wedding on the basis of the content.

Of course, this would also seem to allow commercial wedding photographers to refuse to take photos of blacks, Christians, Jews, or anything on the grounds that she does not want to create, for example, a photographic work including crosses or black people. So, consistency would seem to require that if wedding photographers can refuse to serve gay clients on the basis of artistic content, then a wedding photographer could refuse anyone on the same grounds. Thus, wedding photographers should be permitted to have “whites only”, “straights only” or “gays only” signs on their business. For artistic reasons, of course. This does seem a bit problematic in regards to commercial wedding photographers.

 

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Religion, Art & Freedom

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A recent lawsuit arising from an incident in Madison, Wisconsin raises a variety of legal and moral issues. The gist of the situation is that a high school student received a zero on an art class assignment because he included religious elements (a cross and a “John 3:16 A sign of love”) in his work.

 

The assignment was to draw a landscape. The teacher, Julie Millin, had set a policy for the class that prohibited violence, sex, and religious beliefs from the work. Allegedly, she told the student that by signing the policy he had “signed away” his constitutional rights. Hence, the grade of zero on the work. Demonic images apparently do not count as religious works-some students did drawings of demons (or devils) and these were accepted without any problems.

 

The student had also expressed the desire to create a metal cross and a pin with “pray” and “praise” on it in his metals class. His cross plan was rejected and he decided not to create the pin because he was worried he would get a zero for a grade on that project as well.

 

Interestingly enough, the school does allow a Buddha and Hindu figurines in the social studies classroom and an image of a Hindu god is displayed in the school as well.

 

The student is currently bringing a lawsuit against the school contending that his rights have been violated.

On the face of it, there seems to be two main problems here. The first is that the school seems to lack a consistent approach to religious images. The second is that the student’s rights certainly do seem to have been violated.

 

In terms of the first problem, if the school permits non-Christian images and figures on school grounds, then it would certainly be inconsistent to exclude Christian images. Tolerance, if it is to be meaningful, must be extended fairly and not just to specific groups. After all, the point of tolerance is to be tolerant rather than intolerant. While tolerance should not be without limits, there seems to be no justification for excluding Christian images while allowing Buddhist and Hindu images.

 

It might be replied that the case with the student is a special case. After all, he did sign the policy and agreed to not include religious content in his art. Of course, this then raises the question of whether it is acceptable to place such a limit on a student’s work. This raises the second problem.

 

On the face of it, the student’s right of free expression seems to have been violated. I’m not a lawyer, but it seems likely that a person cannot simply sign away his Constitutional rights in such a context. If this was possible, it would certainly grant school teachers rather extraordinary legal powers. Of course, it is reasonable to consider that his rights have not been violated.

 

As a professor I set clear requirements for my paper assignments. If a student fails to meet those requirements, then the grade reflects this. If, for example, a student is supposed to write a paper on a case in ethics and the student instead writes a paper on why pot is fun to smoke (this has happened a few times), then he gets a zero on the paper. This is not because I’m against smoking pot, but because a paper that praises pot is not an ethics paper. A paper arguing that using pot is morally acceptable would, obviously enough, be an ethics paper. This seems quite reasonable-after all, a class is aimed at achieving certain goals and the assignments in a class should be designed to meet those goals. This entails that some things simply will not fulfill the legitimate requirements of an assignment. I do not violate the student’s rights when a paper on pot smoking gets a zero. This is because the paper does not meet the legitimate requirements for the class assignment. After all, it is certainly legitimate to expect a paper in an ethics class to be in the subject of ethics. If I assigned a grade of zero to a paper solely because I disagree with the student’s view, then that would not be fair or acceptable. After all, that is not a legitimate basis for assessing a student’s work.

 

Turning to the art assignment, the question is whether or not the religious element is something the teacher has a legitimate right to exclude and use as the basis for grading. In the situation at hand, the student was to draw a landscape. If he had just drawn a cross, then a failing grade would be legitimate. However, he did provide the required landscape. To fail him because he included the religious content certainly seems to be unjust. After all, what academic flaw did that introduce to the work that would justify such a grade?

 

It might be countered that the exclusion of religious belief was part of a policy designed to keep students from creating offensive art. After all, students should probably be prevented from drawing graphic violence and sexuality in an art class. It could be argued that since religious art might offend some people, it follows that it should be banned as well. However, the presentation of a religious belief does not seem to cross the same boundary that graphic violence or sexuality crosses. Further, there does not seem to be any right not to be offended by a person’s belief. As such, there seems to be no legitimate ground to deny a student the right to display a religious belief in his or her school art projects. Further, as long as the work otherwise fulfills the requirements, there is no legitimate ground to fail the student.

 

 

 

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