Monday, May 02, 2005

The Real Threat to Religious Expression, The Garden of Eden

Last week, I posted a short poem that those outside (and perhaps even inside) the legal profession probably found cryptic. So now to be clear to lawyers: all Christians should find the Supreme Court's "innovative" commercial speech doctrine at least as disturbing as the Court's establishment clause jurisprudence (if not more so). And then to laypeople: the Court's commercial speech doctrine increasingly places an equal sign between religious expression and public democratic discourse on the one hand, and corporate ads proposing market transactions on the other.

How did we get here?

Let's compare Valentine v. Christensen and Murdock v. Pennsylvania - two United States Supreme Court cases decided in 1942 and 1943 respectively.

In Valentine, the Supreme Court upheld a law that prohbited "distribution in the streets of commercial and business advertising material." The Court noted that the streets are "unequivocally" proper places to exercise "the freedom of communicating information and disseminating opinion." It found protecting these freedoms perfectly consistent with its bold (and, in my view, correct) holding that the First Amendment "imposes no...restraint on government as respects purely commercial advertising." The extent to which commercial advertising is permitted is not a fundamental constitutional right but a proper "matter[] for legislative judgement."

In Murdock, the Court made good on its distinction between First Amendment speech and mere business talk. The Court held that a small licensing tax on door-to-door soliciting could not be applied to Jehovah's Witnesses.

The Court's exalting of religious expression in Murdock marked a sharp contrast with Valentine's view of "mere commercial advertising":

Petitioners spread their interpretations of the Bible and their religious beliefs largely through the hand distribution of literature by full or part time workers. They claim to follow the example of Paul, teaching 'publickly, and from house to house.' Acts 20:20. They take literally the mandate of the Scriptures, 'Go ye into all the world, and preach the gospel to every creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God.

The hand distribution of religious tracts is an age-old form of missionary evangelism--as old as the history of printing presses. It has been a potent force in various religious movements down through the years. This form of evangelism is utilized today on a large scale by various religious sects whose colporteurs carry the Gospel to thousands upon thousands of homes and seek through personal visitations to win adherents to their faith. It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press.

This blissful state of affairs lasted more than three decades....

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