Garrett Epps

Albany Law Review, Summer, 2008

But one other thing I think from my study of American religious history--because, as Paul said, before the Fourteenth Amendment book, I wrote a book about free exercise--is that there is something about American history that changes religious faiths as they come here--makes them into players in the American religious system--which is different from that almost anywhere else in the world. And many years ago, I heard a lecture by a historian of Mormonism, Jane Shipp, a brilliant lecture on the history of the Church of Latter-Day Saints, and I went to talk to her afterwards. And I said, "You know, I've always thought that the Mormon Church, as originally formulated, was so brilliant in expression of the nineteenth century American liberal mentality that it was only the accident of Mormon polygamy that prevented it from really taking over the whole country and becoming the official church, because it was so perfectly in tune with the times otherwise." And she said to me a very wise thing, which I've borne in mind as I've studied. She said, "No, that wouldn't have happened because what would have happened was they would have learned to play the game the way everyone else plays the game. They would have learned to get along with the other faiths because that's the way the American system works." People who, a generation ago, were denouncing each other as, you know, pappas swine or whatever else--prelects from those churches--play golf together and cooperate because that's the way the American system works. And that changes religion.

American religion has a fundamentally different and, often, more open quality to it than it does elsewhere in the world. That doesn't come painlessly. And if you look at the history of American religion, there's blood on the sidewalk over and over and over. Whether it is the Exterminate Order that drove the Mormons out of Illinois or the anti-Catholic riots in Boston, there's blood on the street. People criticize. People attack religions. The struggle goes on until some kind of cease-fire is reached because the combatants are changed; and, in some way, they accept the American liberal religious order. And so I think if we attempt to freeze discussion of any religious group, if we attempt to shield any religious group from hateful speech, we're, in essence, preventing progress toward the end that we want, which is a genuine pluralistic country in which all of those people--all of these groups--will feel safe.

I think that "fire in a crowded theater" stands as a very substantial obstacle to our understanding free speech in these kinds of contexts in a robust way. If you push people about it, it means usually one of three things. The first one is--and Professor Dershowitz's essay begins with a quote from the Reverend Jerry Falwell who had sued Larry Flint of Hustler Magazine because Flint had run a really scabrous ad parity denouncing Falwell's mother, and Falwell had sued him for intentional infliction of emotional distress. And Falwell says, "Well, you can't shout fire in a crowded theater and you can't print something really bad about my mother," basically. Those are not the exact words. And what that means, in essence, is, look, if there's one exception to free speech then there ought to be one for me, too. Right? There's no logical connection between the two. It's simply, look, you're talking to me about some seamless Gorman to free speech, but look at this hole. All I want is a little hole like that one. That's the first way that it's used.