Reprinted from the May 2003 issue of Catalyst with the permission of the Catholic League.

For readers of Catalyst, expressions of anti-Catholic bigotry scarcely come as a surprise. Over the years, we have come to expect that media treatments of the Church, its clergy and its faithful will be negative, if not highly offensive, and Catholic organizations try to confront the worst manifestations of prejudice. When such controversies erupt, the defenders of the various shows or productions commonly invoke a free speech defense. These productions are just legitimate commentary, we hear, so offended Catholics should just lighten up, and learn not to be hyper-sensitive. Sometimes, defenders just deny that the allegedly anti-Catholic works are anything like as hostile as they initially seem to be. All these arguments, though, miss one central point, namely that similarly controversial attacks would be tolerated against literally no other group, whether that group is religious, political or ethnic.

The issue should not be whether film X or art exhibit Y is deliberately intending to affront Catholics. We should rather ask whether comparable expressions would be allowed if they caused outrage or offense to any other group, whether or not that degree of offense seems reasonable or understandable to outsiders. If the answer is yes, that our society will indeed tolerate controversial or offensive presentations of other groups-of Muslims and Jews, African-Americans and Latinos, Asian-Americans and Native Americans, gays and lesbians- then Catholics should not protest that they are being singled out for unfair treatment. If, however, controversy is out of bounds for these other groups-as it assuredly is-then we certainly should not lighten up, and the Catholic League is going to be in business for a very long time to come.

It is easy to illustrate the degree of public sensitivity to images or displays that affect other social or religious groups-but how many of us realize how far the law has gone in accommodating the presumed privilege against offense? Witness the legal attempts over the last two decades to regulate so-called "hate speech." American courts have never accepted that speech should be wholly unrestricted, but since the 1980s, a variety of activists have pressed for expanded laws or codes that would limit or suppress speech directed against particular groups, against women, racial minorities and homosexuals. The most ambitious of these speech codes were implemented on college campuses. Though many such codes have been struck down by the courts, a substantial section of liberal opinion believes that stringent laws should restrict the right to criticize minorities and other interest groups.

But if these provisions had been upheld in the courts, what would they have meant for recent Catholic controversies? One typical university code defines hate speech "as any verbal speech, harassment, and/or printed statements which can provoke mental and/or emotional anguish for any member of the University community." Nothing in the code demands evidence that the offended person is a normal, average character not over-sensitive to insult. According to the speech codes, the fact of "causing anguish" is sufficient. Since the various codes placed so much emphasis on the likelihood of causing offense, rather than the intent of the act or speech involved, the codes might well have criminalized art exhibits like, oh, just to take a fantastic example, a photograph of a crucifix submerged in a jar of urine.

The element of "causing offense" is central to speech codes. At the University of Michigan a proposed code would have prohibited "any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran status." "Stigmatization and victimization" are defined entirely by the subjective feelings of the groups who felt threatened. In 1992, the US Supreme Court upheld a local statute that prohibited the display of a symbol that one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The implied reference is to a swastika or a burning cross, but as it is written, the criterion is that the symbol causes "anger, alarm or resentment" to some unspecified person. These were precisely the reactions of many Catholic believers who saw or read about the "Piss Christ" photograph, or the controversial displays at the Brooklyn Museum of Art.

Other recent laws have taken full account of religious sensibilities, at least where non-Catholics are concerned. Take for instance the treatment of Native American religions, and the presentation of displays that (rightly) outrage Native peoples. In years gone by, museums nonchalantly displayed Indian skeletons in a way that would be unconscionable for any community, but which was all the more offensive for Native peoples, with their keen sensitivity to the treatment of the dead. In 1990, Congress passed NAGPRA, the Native American Graves Protection and Repatriation Act, which revolutionized the operation of American museums and galleries by requiring that all Indian remains and cultural artifacts should be repatriated to their tribal owners. As a matter of federal criminal law, NAGPRA established the principle that artistic and historical interests must be subordinate to the religious and cultural sensibilities of minority communities.

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