The univalence axiom for elegant Reedy presheaves

We show that Voevodsky's univalence axiom for intensional type theory is valid in categories of simplicial presheaves on elegant Reedy categories. In addition to diagrams on inverse categories, as considered in previous work of the author, this includes bisimplicial sets and $\Theta_n$-spaces. This has potential applications to the study of homotopical models for higher categories.Comment: 25 pages; v2: final version, to appear in HH

Free Speech at What Cost?: Snyder v. Phelps and Speech-Based Tort Liability

It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than satisfy the appropriate constitutional standard. Indeed, such a standard can help create a civil space where both robust advocacy and the freedom to avoid robust advocacy can flourish. This article makes four points about the Fourth Circuit’s decision in Snyder v. Phelps, each of which addresses the need to secure what is purely private from injurious speech. 1. The Fourth Circuit decided that the issues animating the protest of the Westboro Baptist Church (WBC) were matters of public concern. Of course, the “issue[s] of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens” are matters of public concern. But none of these is the issue whose publicness the Fourth Circuit was called upon to consider. That issue is whatever connection Matthew Snyder had to these matters. In the world of speech-based torts, whether a matter is one of legitimate public concern depends on the content, effect, and significance of the plaintiff’s conduct, not the subjective and unilateral assertions of the defendant. WBC must show that that connection is of public concern. Otherwise, every soldier, every Catholic, etc. (no matter how assiduously he or she has avoided the public fray) would be subject to targeted personal assault as long as WBC speaks under the mantle of some public concern (no matter how tenuously connected to the conduct of its target). 2. The Fourth Circuit’s decision turned on the court’s determination that WBC’s speech, even if it was not a matter of public concern, was mere rhetorical hyperbole (and, thus, not provably false; and thus protected opinion). Whatever sense this reasoning makes in the area of public debate, it creates a perverse incentive for WBC to be especially abusive and inflammatory: the more hyperbolically hateful the speech, the more it is constitutionally protected. This doctrinal borrowing from defamation makes little sense where the plaintiff brings an emotional distress claim. First, when the plaintiff’s claim is based on emotional injury caused by non-provable speech, the state’s interest in the protection of private personality is greater. The defamation plaintiff is injured by false statements of fact: where there is no provable factual assertion, there is little chance of reputational injury. No one will believe what is clearly hyperbolic rhetoric. But those same words can heighten a plaintiff’s emotional distress (and the more hyperbolic, the more the harm), whether or not the defendant’s message is verifiable. Second, the value of the speech at issue, and thus the need to offer it constitutional protection, is lesser. Statements meant merely to cause emotional injury to private plaintiffs bear only the most superficial resemblance to protected forms of speech. 3. There is no justification for applying the actual malice standard to emotional distress claims outside the public arena (and little enough inside). The literal application of the actual malice standard offers no protection to the plaintiff claiming emotional injury from rhetorically hyperbolic speech. The victim of a libel can show that the statement was false. The victim of rhetorical hyperbole can prove or disprove nothing that will bring judicial redress. This may be the cost of doing business in the public arena, but there is no reason why a private plaintiff should be left defenseless against emotionally injurious speech that serves no valid communicative purpose. 4. The availability of tort remedies for injurious speech is critical if private individuals are to peacefully exercise their own constitutional rights. The state has a substantial interest in protecting families’ “personal stake in honoring and mourning their dead” and in keeping the most intimate of moments from “unwarranted public exploitation.” Mr. Snyder should have the opportunity to show that WBC’s targeted picketing “was intended to cause him and his family substantial psychological distress,” not to disseminate a public message. Matthew Snyder died in service to his country, but the injuries that took his life left a legacy of trauma for his family. It is now the Supreme Court’s opportunity to decide whether our nation’s profound commitment to the contentious discussion of public issues is also a license for egregiously intrusive and injurious speech

When is Religious Speech Outrageous?: \u3ci\u3eSnyder v. Phelps\u3c/i\u3e and the Limits of Religious Advocacy

The Constitution affords great protection to religiously motivated speech. Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe. But are there limits beyond which religious speech loses its constitutional shield? Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress? When is religious speech outrageous? These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as much heat as light. On March 8, 2010, the Court granted certiorari in Snyder v. Phelps. It is a tort case brought by a family grieving the untimely death of their son. It is a free speech case, testing the boundaries of the constitutional commitment to the marketplace of ideas. It is a religious liberty case that has made unlikely allies of those on opposite sides of the political and cultural divides that make our liberal democracy such a challenging enterprise

The Siren Song of History: Originalism and the Religion Clauses

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more we are likely to find ambiguity--and with each step we take away from the promised land of historical clarity, we move a step closer to the richer, if less certain, terrain of historical truth. This essay reviews the following works: The Forgotten Founders on Religion and Public Life. Edited by Daniel L. Dreisbach, Mark David Hall and Jeffrey H. Morrison. Foreword by Mark A. Noll. University of Notre Dame Press 2009. Pp. 316. ISBN: 0-268-02602-5; Church, State, and Original Intent. By Donald L. Drakeman. Cambridge University Press 2010. Pp. 371. ISBN: 0-521-11918-9; God and the Founders: Madison, Washington, and Jefferson. By Vincent Phillip Muñoz. Cambridge University Press 2009. Pp. 242. ISBN: 0-521-51515-7

Idempotents in intensional type theory

We study idempotents in intensional Martin-L\"of type theory, and in particular the question of when and whether they split. We show that in the presence of propositional truncation and Voevodsky's univalence axiom, there exist idempotents that do not split; thus in plain MLTT not all idempotents can be proven to split. On the other hand, assuming only function extensionality, an idempotent can be split if and only if its witness of idempotency satisfies one extra coherence condition. Both proofs are inspired by parallel results of Lurie in higher category theory, showing that ideas from higher category theory and homotopy theory can have applications even in ordinary MLTT. Finally, we show that although the witness of idempotency can be recovered from a splitting, the one extra coherence condition cannot in general; and we construct "the type of fully coherent idempotents", by splitting an idempotent on the type of partially coherent ones. Our results have been formally verified in the proof assistant Coq.Comment: 24 pages. v2: final version, to appear in LMC

Who Owns the Soul of the Child?: An Essay on Religious Parenting Rights and the Enfranchisement of the Child

At common law, and (for most of the nation\u27s history) under state statutory regimes, the authority of the parent to direct the child\u27s upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a sacred right to the custody of his or her child, that the parent\u27s right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation\u27s history—and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear—is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the child who had an absolute right: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from what Blackstone called the empire of the father. If by fundamental we designate rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among them. The Supreme Court\u27s seminal cases establishing a parent\u27s right to educate. Meyer and Pierce have been made to state broad claims about the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child\u27s education; and, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights. But that is what the Supreme Court made of these cases in Wisconsin v. Yoder. The idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a harm standard ill-adapted to the existential intricacies of family disputes. Courts should look with skepticism at any authority that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. While a full treatment of these cases lies outside the scope of the article, this part suggests that courts should look with skepticism at any educational program—whether the program is imposed by the parent or by the state—that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person\u27s education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of protection, ensuring that children receive a truly public education. Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority—and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under a perpetual childhood of prescription, they must be exposed to the dust and heat of the race—intellectually, morally, spiritually. A public education is the engine by which children are exposed to the great sphere that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future. The Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. Judicial non-intervention amounts to little more than a way of not dealing with such cases—or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny