Greg Koukl: Relativism Discussion Starters

Greg Koukl: Relativism Discussion Starters

Sunday, September 22, 2013

Part 1: Insulin or Ice Cream?

What is moral relativism? It’s simply the idea there are no real moral facts in the world. Morality is a matter of preference or opinion. Moral views are “true for you” if you believe them. Your views are not universal or true for everyone.

Think about the difference between ice cream and medicine.  Is there a single flavor of ice cream everyone ought to affirm as the one best-tasting flavor? Do you spend time trying to convince others they are wrong if they prefer chocolate over vanilla? Of course not. Our choice of ice cream flavors is a matter of personal preference.  It’s subjective. My favorite flavor of ice cream is true for me but you might have a different favorite flavor. No problem.

But do we take this same approach when it comes to medical choices? If doctors were to discover you had Type 1 (or Insulin-dependent) diabetes would you ask for a treatment you like or prefer? Of course not. You want what works or what is objectively true. The cure is in no way dependent on your preference or belief. You might believe ice cream can control diabetes but if that’s the course of treatment you follow, you’ll soon be dead. In the case of Type 1 diabetes you need insulin, not ice cream.

So, moral relativism says that moral choices are much like our ice cream choices. Our moral views are personal and private, not objective. There are no moral rules or laws that are true for everyone whether he or she believes in them or not.

Part 2: C. S. Lewis on Absolute Morality

Is moral relativism a good idea? I don’t think so. Remember, the moral relativist’s claim is there are no objective moral truths, no real right and wrong for everyone. We’ll let the clear thinking of C. S. Lewis be our guide to show us two quick problems with moral relativism.

First, no one can live this way consistently. As Lewis states, “Whenever you find a man who says he does not believe in a real Right and Wrong, you will find the same man going back on this a moment later. He may break his promise to you, but if you try breaking one to him he will be complaining ‘It’s not fair…’” If one takes morality to be a mere preference, then any moral choice is fine.  Just like we wouldn’t fault someone for preferring chocolate ice cream over vanilla, the consistent moral relativist shouldn’t fault the liar or thief. Dishonesty is merely their preference. Of course, this view of morality is unlivable nor would anyone want to live in that kind of world.

Second, if moral relativism is true then we are not justified in calling things wrong, evil, or unjust. As Lewis recounts, “My argument against God was that the universe seemed so cruel and unjust. But how had I got this idea of just and unjust? A man does not call a line crooked unless he has some idea of a straight line.” In other words, if there are no objective moral truths (the straight line), there are no objective moral evils (the crooked line). However, isn’t it just obvious there are “crooked lines” in this world, things that are unjust? An adult sexually molesting a young child. A government committing genocide. Exploiting of the helpless. Racism. Slavery. Rape. If moral relativism is true, none of these things are ultimately wrong. But clearly, these are moral wrongs, whether or not anyone affirms them as such.

Part 3: Understanding Absolutism

If moral relativism is false, there’s only one option: moral absolutism. This is the idea that a moral rule is true whether or not anyone believes it. Remember the distinction we made between subjective and objective truths in lesson one? A moral absolute is an objective truth. It’s true for everyone.

Unfortunately, the word absolute comes with some baggage. When used, people often hear, “I’m absolutely right and I’m absolutely certain and you can’t question me.” Not really the impression we want to give, right?  Instead, avoid the baggage and talk in terms of moral reality or moral facts. There are real moral facts “out there” in the world and they are independent from my believing them. Let’s take a clear case example to illustrate: “Torturing babies for fun is morally wrong.” Hopefully, this moral fact is just obvious to you (if not, get help immediately . . . and stay away from my kids!). As a moral fact, it is true for everyone and it does not matter what you believe, what culture you grew up in, or what time period you’re living in.

Indeed, there’s a basic set of moral facts universally found in all cultures. It’s wrong to rape women. It’s wrong to kill innocent people for no reason. It’s wrong to lie, cheat, and steal. In addition, kindness, honesty, and justice are virtues that should be commended. These basic moral facts are self-evident to most people and that’s why they have been universally recognized across cultures.

Now let’s make something very clear. We are not saying that every moral issue is black and white. Not all moral questions have easy answers. Some are really difficult.  However, there’s a basic set of moral facts that are pretty clear and form a foundation of morality on which we can build.

Part 4: Responding to Relativists

Last week, we concluded there are real moral facts in the world and God is the objective standard for them.  Morality flows out of God’s nature. Of course, God’s a pretty rock solid standard. At the end of the day what we believe about morality does not change the facts of morality. They are grounded in God’s perfect moral character.  He’s the standard of right and wrong.  But that might sound pretty rigid to some. Certainly people will disagree. Can we hold to moral standards and at the same time let people ask honest questions or raise serious objections? I think so. First Peter 3:15 is instructive in this regard, telling us we should always be ready to answer anyone who asks the reason for our hope and to do so with gentleness and respect.  Notice three important aspects of this verse.  First, Peter said we should always be ready to give an answer, a reason for what we believe. Always. That requires diligent study and preparation on our part. Not only do we need to know what we believe but why we believe it. When our views are supported by good reasons and evidence, we don’t have to get defensive or irritated when others raise questions or objections.

Instead, we are humbly confident in the truth. Second, Peter indicated that giving an answer and a reason is always done in the context of a particular kind of life. What kind? A life where Christ is set apart as Lord. It’s not merely a matter of offering reasons but doing so in the midst of a life where Jesus’ trans-formative work is increasing.

Third, we see the result of good reasons offered from a transformed life: gentleness and respect. If your encounters with those who disagree are not characterized by these two things, it’s time to step back and see what’s gone wrong. Are you diligent in the study of God’s truth? Are you giving Jesus increasing control of your heart? First Peter 3:15 paints a beautiful picture of what our encounters with the world should look like.

CARM: Moral Relativism vs. Christianity

CARM: Moral Relativism vs. Christianity

Sunday, September 22, 2013

What is Moral Relativism?

by Robin Schumacher

from Christian Apologetics Research Ministry

Moral relativism is a philosophy that asserts there is no global, absolute moral law that applies to all people, for all time, and in all places. Instead of an objective moral law, it espouses a qualified view where morals are concerned, especially in the areas of individual moral practice where personal and situational encounters supposedly dictate the correct moral position.

Summing up the relative moral philosophy, Friedrich Nietzsche wrote, “You have your way, I have my way. As for the right way, it does not exist.”

In modern times, the espousal of moral relativism has been closely linked to the theory of evolution. The argument is, in the same way that humanity has evolved from lesser to greater biological organisms, the same process is in play in the area of morals and ethics. Therefore, all that can be ascertained at present (and forever) is that there is no absolute or fixed certainty in the area of morality.

Following this argument to its logical conclusion causes consternation among many, even those who espouse moral relativism. Paul Kurtz, in the book The Humanist Alternative, sums up the end result this way: “If man is a product of evolution, one species among others, in a universe without purpose, then man’s option is to live for himself”.

A grand example of this philosophy in action can be seen in the 2007-2008 meltdown that occurred in the American financial and banking industry. Those who taught relative morality in their philosophy and business ethics college courses proceeded to live out those teachings on Wall Street and in other corporate avenues, taking risks, not representing the truth properly, seeking monetary gain, etc, with the outcome being devastating for those who were on the receiving end of their relative (and financial) morality.

Oddly enough, many who believed in relative morality at that time were outraged and absolutely sure that those who engaged in deceptive business practices ought to be punished for their unethical moral behavior. This type of reaction speaks loudly to an important truth: moral relativists have a rather dim view of moral relativism when it negatively effects them.

Let the moral relativist be lied to, be the victim of false advertising, or of a crime and he instantly becomes a moral absolutist. A person’s reaction to what he considers unfair ethical treatment always betrays his true feelings on the matter of relative vs. objective moral laws….when things go wrong for him.

The problem for the moral relativist (who is most times a secular humanist that rejects God) is they have no good answer to the two-part question: Is there anything wrong with an action and, if so, why? Appealing to the relative whims of society or personal preferences doesn’t provide satisfying answers. A better response to the question necessitates that an individual have: (1) an unchanging standard he can turn to, and (2) an absolute authority by which proper moral obligation and be defended. Without these, morals/ethics simply becomes emotionally based preferences. Rape, for example, can never be deemed wrong; the strongest statement that can be made about rape is “I don’t like it.”

Three options for moral basis

The only options available to the secular humanist where a standard and authority are concerned are: (1) the natural universe; (2) culture; (3) the individual.

The natural universe doesn’t work since no one has even closely explained how matter, atoms, chemicals, and electricity produce proper moral truths from which moral behavior is rightly derived. Culture doesn’t help as there are many cultures throughout the world, all with differing moral standards and practices; there is no way to ascertain which culture is ‘correct’ — if at all. Culture merely displays what “is” with respect to morality, and even the famous skeptic and antagonist of religion David Hume stated that humanity cannot derive an “ought” from an “is” where morals are concerned. Lastly, if each individual is used as a standard/authority for morals, the problem becomes one of imposing personal preferences on others and asking whose moral opinion is right?

Seeing this dilemma, some moral relativists try to say that science can be used to dictate ethics, but even secular scientists admit that science is a descriptive discipline (explanation) and not a prescriptive one (obligation). In addition, its empirical methods are impotent to answer such moral questions such as if the Nazi’s were evil or not, or is murder really morally wrong, or why is rape morally reprehensible? Einstein sums up the correct position in this matter when he said, “You are right in speaking of the moral foundations of science, but you cannot turn round and speak of the scientific foundations of morality.”

In the end, the moral relativist has no satisfying answer in his/her attempt to respond to the question of if there is anything wrong with anything, and why, outside of his opinion. There is no standard to turn to and no authority to recognize and respect.

The Christian Worldview

In contrast to the moral relativist whose worldview is secular humanism, the Christian worldview provides a solid standard and authority that can be confidently referenced and followed. The Creator God, who has revealed Himself in His Word is both the standard and authority for morals. From God’s nature comes pure good that serves as the straight line by which all crooked lines can be corrected.

God’s image has been impressed upon humanity (cf. Gen. 1:26-27) so that human beings instinctively know God’s moral law and what is right and wrong (cf. Rom. 2:14-15). People don’t have to believe in God to know His moral law, but in denying Him, they lose the ability to ground an objective moral law in something that transcends the physical universe. Without that transcendent God, as Dostoevsky famously observed, everything is permissible.

The tragic truth for the moral relativist is this: when you hold God’s funeral and bury His moral law along with Him, something will take His place. That something will be an individual or group of individuals who take power and, in authoritarian fashion, impose their own moral framework on everyone else. The world has already seen such things in the regimes of Stalin and Pol Pot.

The far better course of action is to thankfully acknowledge God as the true source of good and His objective moral law, which God established only for the well being of His creation.

Got Questions?— What is moral relativism?

Got Questions?— What is moral relativism?

Sunday, September 22, 2013

What is moral relativism?

Moral relativism is more easily understood in comparison to moral absolutism. Absolutism claims that morality relies on universal principles (natural law, conscience). Christian absolutists believe that God is the ultimate source of our common morality, and that it is, therefore, as unchanging as He is. Moral relativism asserts that morality is not based on any absolute standard. Rather, ethical “truths” depend on variables such as the situation, culture, one’s feelings, etc.

Several things can be said of the arguments for moral relativism which demonstrate their dubious nature. First, while many of the arguments used in the attempt to support relativism might sound good at first, there is a logical contradiction inherent in all of them because they all propose the “right” moral scheme—the one we all ought to follow. But this itself is absolutism. Second, even so-called relativists reject relativism in most cases. They would not say that a murderer or rapist is free from guilt so long as he did not violate his own standards.

Relativists may argue that different values among different cultures show that morals are relative to different people. But this argument confuses the actions of individuals (what they do) with absolute standards (whether they should do it). If culture determines right and wrong, how could we have judged the Nazis? After all, they were only following their culture’s morality. Only if murder is universally wrong were the Nazis wrong. The fact that they had “their morality” does not change that. Further, although many people have different practices of morality, they still share a common morality. For instance, abortionists and anti-abortionists agree that murder is wrong, but they disagree on whether abortion is murder. So, even here, absolute universal morality is shown to be true.

Some claim that changing situations make for changing morality—in different situations different acts are called for that might not be right in other situations. But there are three things by which we must judge an act: the situation, the act, and the intention. For example, we can convict someone of attempted murder (intent) even if they fail (act). So situations are part of the moral decision, for they set the context for choosing the specific moral act (the application of universal principles).

The main argument relativists appeal to is that of tolerance. They claim that telling someone their morality is wrong is intolerant, and relativism tolerates all views. But this is misleading. First of all, evil should never be tolerated. Should we tolerate a rapist’s view that women are objects of gratification to be abused? Second, it is self-defeating because relativists do not tolerate intolerance or absolutism. Third, relativism cannot explain why anyone should be tolerant in the first place. The very fact that we should tolerate people (even when we disagree) is based on the absolute moral rule that we should always treat people fairly—but that is absolutism again! In fact, without universal moral principles there can be no goodness.

The fact is that all people are born with a conscience, and we all instinctively know when we have been wronged or when we have wronged others. We act as though we expect others to recognize this as well. Even as children we knew the difference between “fair” and “unfair.” It takes bad philosophy to convince us that we are wrong and that moral relativism is true.

CARM: Refuting Relativism

CARM: Refuting Relativism

Sunday, September 22, 2013

Refuting relativism

from Christian Apologetics Research Minisistry — Relativism is the philosophical position that all points of view are equally valid and that all truth is relative to the individual. But, if we look further, we see that this proposition is not logical.
In fact, it is self-refuting.

1. All truth is relative.

A. If all truth is relative, then the statement “All truth is relative” would be absolutely true. If it is absolutely true, then not all things are relative and the statement that “All truth is relative” is false.

2. There are no absolute truths.

A. The statement “There are no absolute truths” is an absolute statement which is supposed to be true. Therefore, it is an absolute truth and “There are no absolute truths” is false.
B. If there are no absolute truths, then you cannot believe anything absolutely at all, including that there are no absolute truths. Therefore, nothing could be really true for you – including relativism.

3. What is true for you is not true for me.

A. If what is true for me is that relativism is false, then is it true that relativism is false?

i. If you say no, then what is true for me is not true and relativism is false.
ii. If you say yes, then relativism is false.

B. If you say that it is true only for me that relativism is false, then

i. I am believing something other than relativism; namely, that relativism is false. If that is true, then how can relativism be true? am I believing a premise that is true or false or neither?

a. If it is true for me that relativism is false, then relativism (within me) holds the position that relativism is false. This is self-contradictory.
b. If it is false for me that relativism is false, then relativism isn’t true because what is true for me is not said to be true for me.
c. If you say it is neither true or false, then relativism isn’t true since it states that all views are equally valid; and by not being at least true, relativism is shown to be wrong.

C. If I believe that relativism is false, and if it is true only for me that it is false, then you must admit that it is absolutely true that I am believing that relativism false.

i. If you admit that it is absolutely true that I am believing relativism is false, then relativism is defeated since you admit there is something absolutely true.

D. If I am believing in something other than relativism that is true, then there is something other than relativism that is true – even if it is only for me.

i. If there is something other than relativism that is true, then relativism is false.

4. No one can know anything for sure.

A. If that is true, then we can know that we cannot know anything for sure, which is self-defeating.

5. That is your reality, not mine.

A. Is my reality really real?
B. If my reality is different than yours, how can my reality contradict your reality? If yours and mine are equally real, how can two opposite realities that exclude each other really exist at the same time?

6. We all perceive what we want.

A. How do you know that statement is true?
B. If we all perceive what we want, then what are you wanting to perceive?

i. If you say you want to perceive truth, how do you know if you are not deceived?
ii. Simply desiring truth is no proof you have it.

7. You may not use logic to refute relativism.

A. Why not?
B. Can you give me a logical reason why logic cannot be used?
C. If you use relativism to refute logic, then on what basis is relativism (that nothing is absolutely true) able to refute logic which is based upon truth.
D. If you use relativism to refute logic, then relativism has lost its relative status since it is used to absolutely refute the truth of something else.

8. We are only perceiving different aspects of the same reality.

A. If our perceptions are contradictory, can either perception be trusted?
B. Is truth self-contradictory?

i. If it were, then it wouldn’t be true because it would be self-refuting. If something is self-refuting, then it isn’t true.

C. If it is true that we are perceiving different aspects of the same reality, then am I believing something that is false since I believe that your reality is not true? How then could they be the same reality?
D. If you are saying that it is merely my perception that is not true, then relativism is refuted.

i. If I am believing something that is false, then relativism is not true since it holds that all views are equally valid.

E. If my reality is that your reality is false, then both cannot be true. If both are not true, then one of us (or both) is in error.

i. If one or both of us is in error, then relativism is not true.

9. Relativism itself is excluded from the critique that it is absolute and self-refuting.

A. On what basis do you simply exclude relativism from the critique of logic?

i. Is this an arbitrary act? If so, does it justify your position?
ii. If it is not arbitrary, what criteria did you use to exclude it?

B. To exclude itself from the start is an admission of the logical problems inherent in its system of thought.

Manufactured People Have Rights Too

Manufactured People Have Rights Too

Wednesday, September 18, 2013

Third party reproduction corrupts the parent-child relationship and disrespects the humanity of donor-conceived people.
By Alana S. Newman – 8/2/13

This article was originally posted on The Public Discourse, and has also been posted on Mercatornet.
Photograph from Alana Newman’s website,

What are the rights of donor-conceived people? To ask this question is to suggest that we have different rights from everyone else—and so we do, because we’ve allowed it.
We’ve created a class of people who are manufactured, and treat them as less-than-fully human, demanding that they be grateful for whatever circumstances we give them. While fathers of traditionally conceived human beings are chased down and forced to make child support payments as a minimal standard of care, people conceived commercially are reprimanded when they question the anonymous voids that their biological fathers so “lovingly” left.

The crimes against the donor-conceived bend time and space. The adults that betray us do so before official personhood, which is the loophole through which this new form of human trafficking is made possible. Is gamete-selling all that different from baby-selling?

I recently discussed third-party reproduction and “the rights of donor-conceived people” at a debate at the Institute for American Values. My opponent was an older gay man, who with his male partner hired two surrogates and one egg donor in the generation of three children. He was there to argue that it’s okay to dispose of mothers and manufacture children as long as it’s done the “right” way. I was there as a representative of donor-conceived people.

It is difficult to know how to pitch yourself as a donor-conceived person during these conversations. If my opponent displays gentlemanly behavior, intelligence, and sensitivity, his argument is made stronger and the audience has a hard time disentangling good manners from immoral deeds. But when I speak, my argument is that we are damaged and pained. If a donor-conceived person like me displays charm and intelligence it can work against our efforts in that they suggest we are able to achieve normalcy—therefore no harm, no foul.

Must every donor-conceived person develop into a violent, drug-addicted, and deranged adult in order to convince the public that his or her family structure is by definition problematic? If so, I’ll graciously illustrate scenes from my challenging past in my next essay. But for now let’s just say I hope not, and take a look at what history has taught us about human rights. It’s clear that often in the case of donor-conceived people, these rights hardly apply.

It is illegal to buy and sell people

When slavery was abolished, with it went the notion not only that you could own another human being, but also that you could separate a person from his biological kin. Countless historical examples teach us that human beings deeply desire connection to their biological kin, especially their biological parents and siblings. If we recognize that it’s wrong to displace human beings as if they were products, not people, then we should also see that a concept like donor-conception is wrong in principle.

Does anybody remember the Cambodian adoption scandal involving Lauren Galindo? Galindo was the facilitator in one of Angelina Jolie’s adoptions. She is also a convicted felon who reportedly paid vulnerable mothers to relinquish their children for as little as a bag of rice.

This March an Oklahoma woman was arrested for trying to sell her two young children via Facebook for $1,000 so she could bail her boyfriend out of jail. An unprincipled economist might look at these situations and ask, what’s the problem? The buyer wanted the children, the mother didn’t. Isn’t this a more efficient system for raising children?

Most of us ache a little in our hearts when we witness children being raised by their incompetent, desperate, or even disturbed natural parents. But we don’t allow the market to correct for supply and demand in these cases because we believe it is unjust for children to have price tags. Why should we then allow the market to have a say over the future of some children just because their parents can abandon their responsibilities through sperm and egg donation?

It is illegal to impregnate a woman for the purpose of taking her child

This April it was discovered that a UK woman bought sperm to impregnate her fourteen-year-old adopted daughter because she wanted another baby. She wanted the child badly—isn’t that enough? Life is good, right? Babies make the world better, right? Yet there is something deeply wrong with creating new life this way.

Also this spring, seventeen teenage girls and eleven babies were rescued from two baby factories in Nigeria where the girls were raped by human traffickers who would then sell each baby for up to $6,400. Most of the babies were destined to become child prostitutes. But let’s say some of them would have ended up in nice California homes with two doting parents and a robust college fund. Would the means by which they were conceived be justified? Common sense tells us “no.”

San Diego’s Theresa Erickson was a fertility industry darling, a surrogacy attorney, and a serial egg donor who crossed the line and was convicted of trafficking babies last year. Erickson went from being considered an angel helping others to a deviant human trafficker because of subtle legal distinctions that permit surrogacy if all the paperwork is completed and checks are signed before conception, but punish the same process as baby-selling if parenthood is officially transferred mid-gestation. But what is the difference for the child?

It is illegal to neglect a child, even if the child was conceived in a one-night stand and was unplanned

We discourage sloppy sexual behavior not because we’re anti-fun, but because most taxpayers don’t want to pay for other people’s irresponsibly made children. When John Doe drinks too much Guinness and finds himself in Jane Smith’s bed, and Jane Smith finds herself pregnant, we hold the two accountable for their choices and make both parties responsible for the child. If needed we even hunt down and force the father to make child support payments. It is common knowledge that humans reproduce sexually, and it is fair to expect people to limit their risky behavior according to how many hungry mouths they’re prepared to feed.

All of these examples should serve to inform our views of third-party reproduction, especially commercial third-party reproduction.

But I feel bad for infertile couples. What’s so bad about helping them build families?

There is nothing wrong with seeking legitimate cures for infertility and helping people overcome obstacles to conception. The problem with third-party reproduction is that it corrupts and perverts the parent-child relationship. The child becomes an asset to be bought and sold, rather than a precious begotten family member who deserves intimacy, protection, and inclusion. She enters the world as a tool for personal satisfaction.

Recognizing that third-party reproduction is unjust requires legislation that blocks the very first stages of the process. We legislate against the distribution of uranium, for example, because we have laws against private distribution of atomic weapons. When single people, elderly, or gay couples (demographics that are by definition non-procreative) tell you they’re not buying children, just “tissue,” ask them why they’re converting their offices into nurseries. Do vials of sperm require crib mobiles and changing tables? No, babies do.

Right now in California, Democrats led by Assemblyman Tom Ammiano are pushing bill AB-460. Labeled as an anti-discrimination measure, the bill will force insurance companies to pay for fertility treatment for inherently sterile parties. They argue that it’s unfair and discriminatory for insurance companies only to assist heterosexual couples (below a certain age) with fertility treatments. If it’s okay for one kind of person to buy sperm or eggs, so their logic goes, then it should be okay for all people to do the same, regardless of age, relationship status, or sexual orientation. Their logic is fair.

But it’s not right for any person to buy or sell sperm or eggs, because to do so is really to buy and sell a person. And people should not be for sale. Parenthood should not be for sale. All children deserve the love and care of the two people that made them: their biological mother and father. Children are safest in the nuclear family. There they can develop a sound and complete identity.

Stories of gross abuse of children who were manufactured via third-party reproduction are now emerging. Two Australian men hired a Russian surrogate to deliver their “son,” who they began sexually abusing just days after birth and exploited in a pedophile network that authorities described as one of “the most heinous acts of exploitation this office has ever seen.” Then there is the Israeli repeat sex offender who gained sole custody of a little girl he procured through surrogacy.

Paris Jackson tried to commit suicide after discovering that she and her brother Prince have different sperm donor fathers in the same month it was revealed that Michael Jackson paid over $35 million in hush money to two dozen boys he molested.

The industry turns a blind eye and fails to properly screen “intended parents” because there is too much money to be made. I once interviewed Teri Royal, who owned what was once the world’s largest egg donation agency. I asked her how many clients she rejected of the thousands she served. She admitted to only declining one potential client. Any adoption agency will tell you their rejection rates run much higher than that. But when conception is commercialized and fertility industry entrepreneurs can earn over $100,000 per child born, these astronomical sums corrupt and should be seen as major conflicts of interest in providing for the best interests of the child.

Today, human rights do not apply to the donor-conceived child because her humanity has been deconstructed and she is a product to please adults, a thing to service others and be consumed. She does not have a father like other people, nor a mother. She only has donors and “intended” parents. If she complains about the discrepancy, the world will ask her threateningly, would you rather not exist?

She fears what they’ll do if she answers honestly.

Alana S. Newman is the founder of the Anonymous Us Project. Anonymous Us: Volume 1, A story-collective on 3rd Party Reproduction will be released by Broadway Publications later this month. Follow her work and blog at

Free Speech at the Shopping Mall

Free Speech at the Shopping Mall

Sunday, August 18, 2013

This article was originally published by California Lawyer, a leading legal magazine, in April 2011. © The Daily Journal Corporation. All rights reserved. by Marc Price Wolf.

Free speech is a right cherished by every American. For well over two centuries, we have experienced (if not always enjoyed) robust debate in public forums. However, it’s not always easy to determine whether a particular forum is public.

A couple of generations ago, it was fair to assume that public forums were publicly owned: street corners, parks, and plazas adjacent to government buildings. Although we have long thought of free speech in the context of the proverbial town square, that concept has evolved over the years. One of its more ubiquitous iterations is the modern shopping mall.

Shopping malls generally resemble public forums in that they are places of free public access where people regularly congregate for a variety of reasons. Most, however, are privately owned. This modern duality between public access and private ownership complicates the already labyrinthine area of free speech law. Shopping malls are not only where the rubber meets the road for fashion aficionados, they are the fulcrum in the balance between the values of private property ownership and free speech.

The High Court Speaks

The U.S. Supreme Court initially applied the First Amendment to private property in 1946 when it held that the business district of a privately owned “company town” could not restrict expressive rights because the town was the functional equivalent of a municipality. The Court concluded that “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” (Marsh v. Alabama, 326 U.S. 501, 506 (1946).) Two decades later, the Court held that a privately owned shopping mall was the “functional equivalent” of the business district described in Marsh. (See Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 318 (1968).)

However, in 1976 the Court took a big step in the opposite direction, expanding property rights at the expense of free speech. In the context of a labor dispute, the justices held that the First Amendment did not guarantee the right to free speech in privately owned shopping centers because the centers were not state actors (Hudgens v. NLRB, 424 U.S. 507, 519 – 521 (1976)). Four years later, the Court reaffirmed the notion that individuals do not have First Amendment rights to freely express themselves in privately owned shopping malls (Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 80 (1980)). However, Pruneyard is also notable for a second holding–that state constitutions may confer upon citizens broader speech rights than the federal Constitution does.

California’s Free Speech Clause

The Pruneyard case involved an appeal from the California Supreme Court, which had relied on the state constitution, primarily article I, section 2, to find that the reasonable exercise of speech and of petition rights on privately owned shopping malls are protected activities (Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979)). One important difference between the First Amendment and the free speech clause of California’s constitution is that the rights guaranteed under the latter do not depend on those guaranteed by the former. California prides itself on the fact that its constitution has always been “a document of independent force and effect particularly in the area of individual liberties.” (Gerawan Farming, Inc. v. Lyons, 24 Cal. 4th 468, 489 – 490 (2000).) The free speech clause and the right to freedom of speech contained in the California Constitution “are not only as broad and as great as the First Amendment’s, they are even ‘broader’ and ‘greater.’ ” (Gerawan, 24 Cal. 4th at 491.)

In Pruneyard, a local shopping center in Campbell prohibited a group of high school students from soliciting opposition to a United Nations resolution against Zionism. The California Supreme Court held that the mall could not prohibit the students’ efforts even though their free speech activity was unrelated to the business of the shopping mall. The court compared the public areas of shopping malls to the streets and sidewalks of the central business districts of cities, which have “immemorially been used for purposes of assembly, communicating thoughts between citizens and discussing public questions.” (Hague v. CIO, 307 U.S. 496, 515 (1939).) Recognizing the growing importance of the shopping center to American life, the court held that “to prohibit expressive activity in the centers would impinge on constitutional rights beyond speech rights.” (Pruneyard, 23 Cal. 3d at 907.)

Other States

Although the constitutions of 34 states have free speech provisions virtually identical to California’s, few of them have been interpreted as being more expansive than the First Amendment. The high courts of Massachusetts and Washington, for example, have recognized a limited expressive right to solicit signatures for electoral petitions at private shopping centers, but their rulings were grounded in free elections rights, not in free speech rights alone (Batchelder v. Allied Stores Int’l, Inc., 445 N.E.2d 590, 595 (Mass. 1983); Alderwood Assocs. v. Wash. Envtl. Council, 635 P.2d 108, 116 – 117 (Wash. 1981) (plurality opinion)). In Colorado, the state supreme court ruled that a particular shopping mall was effectively a public entity because of the mall’s financial and other relationships with the city government (Bock v. Westminster Mall Co., 43 P.2d 55 (Colo. 1991)).

New Jersey is the only state to wholeheartedly follow California’s lead. In fact, its supreme court has even gone a few steps further and affirmed the protection of speech outside of the mall context, such as in private universities and hallways in residential buildings. (See State v. Schmid, 423 A.2d 615, 631 – 633 (N.J. 1980); Guttenberg Taxpayers & Rentpayers Ass’n v. Galaxy Towers Condominium Ass’n, 688 A.2d 156 (N.J. Super. Ct. Ch. Div. 1996), aff’d, 688 A.2d 108 (N.J. Super. Ct. App. Div. 1996).)

That so few states have taken California’s approach should not be too surprising. Unlike most public forums, private shopping centers are not owned by the government, paid for by taxpayers, or maintained by government employees. The private owner of a shopping center is responsible for paying property taxes, hiring employees, safeguarding the premises, maintaining the structure, and keeping the common areas clean. Shopping malls generally do not incorporate housing, town halls, libraries, places of worship, hospitals, or schools. There is no “mayor of the mall,” and shoppers do not expect to have a say in the everyday affairs of a commercial shopping center. Despite these differences, the California Supreme Court upheld free speech rights at shopping malls in Pruneyard, and reaffirmed its holding nearly 30 years later. (See Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850 (2007).)

Pruneyard Revisited

The Fashion Valley Mall in San Diego had a rule that prohibited anyone from “interfering” with the business of a mall merchant by “encouraging” customers not to patronize that business. When a group of union members attempted to pass out flyers urging a boycott of a mall department store, the mall’s management disbanded the group by claiming trespass, threatening civil litigation and possible arrest. But the California Supreme Court held that requiring shopping malls to allow free speech activity did not “unreasonably impair the value or use of their property as a shopping center.” (Fashion Valley Mall, 42 Cal. 4th at 863.) The court balanced private property rights against free speech needs, and the latter, by a slim 4 – 3 majority, prevailed.

The court explained that the application of free speech rights is not solely determined by the distinction between public and private ownership of property. The focus of the court’s analysis was on the use of the property in question. And although it concluded that the California Constitution protects the right to free speech in shopping malls–including the right to advocate a boycott–the court emphasized a shopping center’s right to impose reasonable regulations upon expressive activity.

What’s Reasonable?

In California, litigation involving speech at shopping malls has centered on the boundaries of such regulations. The level of scrutiny a court will apply to a given regulation varies with the context.

If the rule is truly content neutral and governs the “time, place or manner” of the speech activity, the court will utilize an intermediate level of scrutiny to determine whether the rule (1) is narrowly tailored; (2) serves a significant government interest; and (3) leaves open ample alternative avenues of communication (Fashion Valley Mall, 42 Cal. 4th at 865).

On the other hand, if the rule regulates the speech on the basis of content, it will be subject to strict scrutiny–which means that the restriction must be necessary to serve a compelling state interest and narrowly drawn to achieve that end (42 Cal. 4th at 869).

Although the rule in the Fashion Valley Mall case applied to all requests for a consumer boycott, the court did not view it as content neutral. The court noted that such a regulation might be viewpoint neutral because it treats all boycotts the same way; but it is not content neutral because it prohibits speech that urges a boycott while it permits speech that does not. Case law has demonstrated time and again that few content-based regulations on speech–including a shopping mall’s rule prohibiting boycott advocacy–can withstand strict scrutiny.

In one case, a suit arose after a security guard at Westfield Mall near Sacramento observed Matthew Snatchko, a youth pastor, chatting about his religion with three women whom he did not know. The women appeared to welcome the conversation. After Snatchko refused the security guard’s request that he leave the mall, the guard handcuffed him and local police arrested him for disturbing the peace. Although the charges were dropped, Snatchko sued the security guard and the mall, contending the restrictions violated his First Amendment rights.

At issue was the constitutionality of the mall’s rules requiring persons to obtain a permit before engaging in any “non-commercial expressive activity.” Westfield said the phrase referred to any activity that had a “political, religious or other non-commercial purpose.” (Snatchko v. Westfield, LLC, 187 Cal. App. 4th 469, 478 (2010).)

As such, Westfield’s regulation went a giant step further than the one struck down in Fashion Valley Mall. Instead of prohibiting only speech promoting boycotts, it banned even peaceful, consensual, spontaneous conversations between strangers. The net result was that mall patrons were technically prohibited from talking to a stranger about the weather, a current event, or even the latest TV episode of Top Chef. While the rule might turn the mall into a safe zone from bad pick-up lines, it also places a restriction on the content of speech. When the court subjected the regulation to strict scrutiny, it failed to pass constitutional muster.

Even if the court had considered the restriction to be content neutral, the rule burdened substantially more speech than was necessary to advance any of its purported legitimate safety and convenience interests. A rule prohibiting strangers from engaging in impromptu chitchat is akin to a rule one would expect to find in a totalitarian police state, not a suburban shopping mall in Roseville.

The court aptly noted that providing a “stress-free shopping atmosphere” for patrons–the purported intent of Westfield Mall’s rules–was not a compelling interest compared with the free speech rights of other individuals in the mall: A shopping mall cannot justify the prohibition of peaceful, noncommercial speech “because it might result in lost profits if shoppers become annoyed or offended and leave.” (Snatchko, 187 Cal. App. 4th at 489.)

And just last month, the court of appeal decided a case in which a shopping mall imposed rules granting preferential treatment to labor-related speech–a fact that no doubt would have delighted the labor protestors in the Fashion Valley Mall case. However, the court held that it was improper for the mall to prefer one type of speech over another based on content. It noted that “a shopping mall must allow protests within aural and visual range of a targeted business whenever the mall is open to the public.” A mall cannot impose a “blanket ban on the time or place of free speech” unless it is the only way “to prevent substantial disruption of normal business operations.” (See Best Friends Animal Soc. v. Macerich Westside Pavilion Property LLC (2011 WL 711584).)

Big-Box Stores
Although California courts have extended free speech protections to shopping malls, they have not done the same for speech in stand-alone stores. While difficult to define, a stand-alone store generally is a place of business not physically attached to another place of business. (See Albertson’s, Inc. v. Young, 107 Cal. App. 4th 106, 109 (2003) (individual grocery store).)

For free speech protections to apply on private property, the owner must open the premises for public use so as to “make it the functional equivalent of a traditional public forum.” (Albertson’s, 107 Cal. App. 4th at 118 (citing Trader Joe’s Co. v. Progressive Campaigns, Inc., 73 Cal. App. 4th 425, 433 – 444 (1999)).) Courts consider a variety of factors, including the extent of the invitation by the property owner to the public; the nature of the primary use of the property; any relationship between the speech activities and the primary use of the property; the size of the business; and the public’s interest in using the property as a venue for free speech (Albertson’s, 107 Cal. App. 4th at 119).

Big-box stores have become more relevant in the free speech debate as they continue to proliferate. Many big-box outlets now replicate the diverse shopping options of a mall, but in one enormous store. For instance, in addition to selling clothing, electronics, home and garden supplies, furniture, and jewelry, many of these stores have large grocery departments, food courts, and open spaces for congregation. Indeed, big-box stores and shopping malls are becoming indistinguishable in terms of the five public-forum factors cited in the Albertson’s case.

More than 30 years ago, California took the lead in protecting speech at shopping malls. Only time will tell if the Golden State becomes the first to extend free speech protections to big-box stores.

Marc Price Wolf is an associate in the litigation department at Howard Rice Nemerovski Canady Falk & Rabkin in San Francisco.