Indianapolis Star Religious Discrimination Lawsuit,

and the Role of the Star's Editorial Policies: Editor & Publisher reports that

Two former editorial writers at The Indianapolis Star have gone to court, charging that top newsroom managers "consistently and repeatedly demonstrated . . . a negative hostility toward Christianity."

James Patterson and Lisa Coffey have sued the newspaper and its owner, Gannett Co., claiming religious, racial and age discrimination in a lawsuit filed Tuesday in federal court.

The two are asking to be reinstated at the paper, and be compensated for lost income, benefits, emotional distress and unspecified punitive damages. . . .

In their lawsuit, the two allege Star Editor Dennis Ryerson and Publisher Barbara Henry said editorials perceived as proselytizing or containing Christian overtones could not be printed in the paper.

Patterson's attorney, John Price, told local TV station WTHR, "James Patterson ran into this problem when he wrote an editorial and asked people to pray for the Iraqi war and one of the new persons assigned by Gannett said that the use of the word 'prayer' in an editorial offended him."

Patterson told WTHR, "This is America. We have the right, under the first amendment, to express those views. At a newspaper, which has had a conservative voice for years and years and years, our argument is we should be allowed to express those views without being persecuted."

Coffey said she was demoted to the copy desk because of her religious beliefs. She claims her problems began after the newspaper ran a series she wrote on sodomy. . . .

Virginia Postrel and InstaPundit express concern on First Amendment grounds.

I agree that certain applications of antidiscrimination law violate the First Amendment, at least where hostile environment harassment law is involved. But having read a copy of the complaint in this case (which the fabulous UCLA Law Library was good enough to track down for me), I think the situation here is more complex.

The Editor & Publisher article doesn't stress this, but the plaintiffs aren't claiming that the newspaper's editorial policy related to religious proselytizing or criticism of homosexuality was illegal. Rather, they claim that the newspaper fired, demoted, failed to promote them, or failed to give them raises because of their religious beliefs -- and they give the newspaper's editorial decisions merley as evidence that the newspaper is indeed prejudiced against devout Christians.

Such use of speech as evidence of intentions (or of actions) is constitutionally permissible, see, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 489-90 (1993); Street v. New York, 394 U.S. 576, 594 (1969); Haupt v. United States, 330 U.S. 631 (1947), and pretty routine. If you're being prosecuted for killing Joe Schmoe, then your past statements "I hate Joe Schmoe" or "All Slobovians deserve to die" (and Schmoe is a Slobovian) may well be used as evidence that you had the motive to kill him, which might be relevant to whether you were the killer, or whether your "it was only an accident, I loved the man!" defense is legitimate.

Likewise, in at least some situations, an employer's views about race, religion, and sex may well be used as evidence relevant to (though not dispositive of) whether the employer's actions were motivated by an employee's race, religion, or sex. Sometimes, the speech may be excluded as mere "stray remarks" the prejudicial effect of which would substantially outweigh their modest probative value. And sometimes, even if the evidence wouldn't be entirely excluded, a court may conclude that it's so weak that, in the absence of other evidence to buttress it, the plaintiff's case should be dismissed. Either of those may yet happen here. But sometimes the evidence will indeed end up being admitted, because it is indeed quite relevant.

Of course, such use of speech as evidence may deter speech. One problem with antidiscrimination laws and hate crimes laws is that they make people's views on race, religion, and sex especially legally significant; people's ideological statements then become especially likely to be introduced at trial, and thus some people -- for instance, managers who make hiring and firing decisions -- will be deterred from saying anything controversial about certain subjects. Nonetheless, this potential deterrent effect arises whenever ideological speech is used as evidence, which can happen in a wide range of cases from treason and murder cases on down. And the legal system generally takes the view that the value of using speech as evidence justifies this indirect deterrent effect.

There is, however, one possibly unconstitutional (though narrow) aspect to the plaintiffs' lawsuit: In addition to discrimination in firing, promotion, salary, and demotion decisions, Patterson also alleges that he "was denied recognition for his positive contributions at The Star"; among other things,

Mr. Ryerson omitted any reference to Plaintiff Patterson in his laudatory e-mails in June and July of 2004 to other reporters at The Star regarding their coverage of Death Row inmate Darnell Williams, even though Plaintiff Patterson had written the most about this case and had been the first Star journalist to write significantly about its injustice. In addition, in October 2004, Patterson was one of three Editorial Board members who won two first-place national awards for his writing (the award was for best editorials in the nation and best overall entry). The award to Patterson was not acknowledged on the Gannett website, a status which persists to this day, though the posting of such awards has been the usual and customary procedure by Gannett for decades. Moreover, The Star has refused to publish any story reporting on Patterson’s achievements.

It seems to me that a newspaper has a categorical right to decide whether to publish an article praising someone, whether to write something on its Web site praising him, and whether to send around an e-mail praising him -- even if its decisions about what to write are motivated partly by someone's religion, race, sex, or what have you. So if a court holds the newspaper liable for such decisions about what to publish (as opposed to decisions whether to hire or fire someone), that would indeed be unconstitutional.

Finally, I should note that there's a plausible First Amendment argument that newspapers have some rights to discriminate based on race, religion, sex, and the like in their choice of reporters, for instance if it wants to publish "he said" / "she said" columns, or "white view" / "black view" columns, or for that matter if it wants to present itself as the Aryan newspaper that only publishes Aryan voices. Nonetheless, even if this discrimination is constitutionally protected in cases where the newspaper can clearly explain how selecting an employee based on race, religion, or sex will affect its speech (compare the Boy Scouts v. Dale case, where the Boy Scouts claimed that a scoutmaster's sexual orientation) -- a big "if" -- this is not such a case: The newspaper has never claimed a journalistic reason to select writers or editors based on religion.

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