Editor’s Note: Jeffrey Toobin is CNN senior legal analyst and author of “The Oath: The Obama White House and the Supreme Court.” The opinions expressed in this commentary are solely those of the author.
Jeffrey Toobin: Freedom of speech, religion differences between U.S., Europe illustrated by Supreme Court rulings today
He says Court ruled: frightening Facebook posts protected speech; it's illegal to refuse to hire a woman because she wears head scarf
Consider some differences between Europe and the United States on freedom of religion and free speech: In parts of Europe, it’s illegal for a Muslim woman to wear a head scarf. In the United States, it’s illegal to refuse to hire a woman because she wears a head scarf. In parts of Europe, it’s illegal, even in an academic paper, to deny that the Holocaust took place. In the United States, it’s illegal to prosecute someone for making specific, terroristic threats on social media.
Those are the messages of two important Supreme Court decisions that were issued today. It’s unusual for the libertarian roots of the Bill of Rights, especially the First Amendment, to be displayed as dramatically as they were today.
In EEOC v. Abercrombie & Fitch Stores, the store refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore because of her religious obligations conflicted with Abercrombie’s employee dress policy. The justices said this was unlawful discrimination by the store because it refused to bend its policies to accommodate Elauf’s religious beliefs.
In Elonis v. United States, the court set aside the criminal conviction of a man who posted grotesque threats to his ex-wife and the larger community on Facebook.
Regarding his wife, Elonis wrote: “Fold up your [protection-from-abuse order] and put it in your pocket. Is it thick enough to stop a bullet?” He wrote in another post:
“That’s it, I’ve had about enough
I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class
The only question is … which one?” After a female FBI agent interviewed him following his first round of threats, Elonis posted:
“You know your s**t’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner.”
Both cases emerge from our strong national commitment to government non-interference in what Americans believe or what they say.
In recent years, the government’s obligation not to interfere with religion – to allow the “free exercise” of religion, in the words of the First Amendment – has expanded into an obligation to accommodate religion. School officials must allow religious student groups to meet on school grounds, just like other student groups. If schools were going to allow movies to be shown on school grounds, they had to allow religious movies too. If universities are going to subsidize student publications, they have to subsidize religious publications by students as well.
The question raised by this line of cases is when accommodation of religion becomes “establishment” of religion, which is also prohibited under the other part of the religion clause of the First Amendment. For example, as same sex marriage becomes lawful in most places, do states have to accommodate the religious beliefs of those florists and bakers who object to these ceremonies? That’s a question for another day, but it’s more relevant than ever because of today’s A & F decision.
As for the Facebook case, Chief Justice John Roberts’ decision didn’t exactly clarify the issue for all time. He said that no one could be convicted of making terroristic threats, as Elonis was, for mere “negligence.” But what is the standard under which someone can be convicted? Roberts left that issue up in the air.
Elonis’ defense at trial was that his remarks were not threats but parodies of rap lyrics. That the court would effectively endorse these deeply disturbing rants illustrates the depth of its commitment to free speech.
All countries that believe in free speech and freedom of religion come to the issue in the light of their own history. France limits the wearing of head scarves in part because of its bitter experience with clerical control of government before the French Revolution. Germany limits free speech (like Holocaust denial) because of its much more recent, and painful, experience with extremism in the 20th century.
Fortunately, the United States has avoided these sorts of experiences and has chosen a path, for the most part, of forcing the government to the sidelines on these issues.
As today’s decisions illustrate, these viewpoints are so strongly felt that they are hardly even controversial at the Supreme Court. On a court that is often bitterly divided along ideological lines, both decisions were close to unanimous.