My kindly editor is clever, smart, and (wait, what was that last thing you wanted me to call you?) (Ed: “devilishly handsome”) is devilishly handsome. And so, when he suggests a column idea to me, it’s usually a good one. As I often ground my columns in the fundamental questions regarding governance that are never really settled, he asked me to take a look at the recent Colorado Politics story regarding Red Rocks, the remarkable music venue located outside Denver near some, well, red rocks. That story illustrates well the constant balancing of liberty and order in our society, and how rights in conflict seem to inevitably lead to at least some people to feel wronged by the system.
It seems a court has been asked to decide an issue regarding balancing rights, along the lines that the famous US Supreme Court Justice Oliver Wendell Holmes, Jr. is reported to have mused, your right to swing your arm ends where my nose begins. The case currently before a federal judge is about the assertion by a gentleman named Joseph Maldonado that his Christian faith demands that he proselytize to the masses. In this case, masses that were walking into a concert at Red Rocks by Snoop Dogg.
The folks who run Red Rocks (employees of the City and County of Denver) had some experience with folks wanting to espouse various political and/or religious beliefs beforehand, and therefore had set up five different “free speech” zones around the property for “expressive activities.” Mr. Maldonado found fault with each of those areas, insisting that not enough people walked past those locations to make it worth his time. I’m tempted to remind him of the parable of the starfish, stranded on the beach, but I digress… Oh, and snakes. He said he heard rattle snakes in the bushes near one of the places they wanted him to stand. I’m tempted to remind him of Mark 16:18, but again, I digress yet again…
So where do fundamental rights fall out here?
Do people going to a concert have a right not to be bothered by people trying to change their religious faith? How about changing their desired political candidate? How about changing peoples’ laundry detergent? Is there a place you have a right not to be bothered? Well, happily, yes! In your home. No one gets to come into your home, against your will, and tell you that you have this whole God thing wrong or that you are using the wrong detergent. But when you step outside your door and into the public square, that all changes.
The Constitution — and in this case the First Amendment specifically — only applies to the government taking action. The government cannot harangue you into becoming, say, a Baptist, nor can it prevent you from becoming one. But even that freedom has limits. There are no absolute and completely unmitigated rights. You have, for example, freedom of speech, but you can’t yell fire in a crowded theater. You have religious freedom, but you cannot, say, sacrifice babies for your faith. You have the right to peacefully assemble, but there is no right to riot. All rights are, frankly, in constant conflict with each other, and that, dear readers, is actually a good thing.
If Red Rocks was a privately owned venue, it would find it much easier to limit the preaching (be it for a particular religious belief or to sell soap flakes) of people looking for an audience. But in the public square, on property the people own, the limits are much less restrictive. Yet they are not completely unrestricted. Free speech zones have been found to be legally acceptable in terms of balancing free speech and public safety. Multiple Supreme Court cases have refined what limits can be placed on speech by imposing such zones, but the concept is legally sound. The devil is, as it always is, in the details.
How close to my nose do you get to swing your arm? For those of you out there that are pretty much ok with a Christian message being professed, and kind of think that Mr. Maldonado should be able to be in a better spot to preach to more people, I have a simple question: since the one thing that all the courts have agreed to is that the government must apply the rules regardless of what particular belief is being pushed, are you equally ok with, say, a devil worshiper having the exact same right to exactly the same public space? How about someone who supports, oh, I dunno, the legalization of child pornography? There, did I offend everyone? If you are OK with one particular type of religious speech but reject the right of other faiths to do exactly the same thing, we have a big problem.
The Constitution doesn’t let you pick one faith, or no faith, over another. The government doesn’t get to decide which political or religious messages are OK and which are not. I don’t envy the judge in this case, who must decide whether these particular five free speech zones are good enough to satisfy the law. And I don’t have a clue what the right answer is. All I know for sure is that, as part of your duty as an American, you should expect to be offended from time to time. Sometimes that arm gets pretty darn close to our noses, and that is as it should be.