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Hate speech--again

Two pieces bring the question of hate speech back before us. In the latest NY Review of Books and under the title Should Hate Speech be Outlawed?, Justice John Paul Stevens reviews Jeremy Waldrons The Harm in Hate Speech. While Waldron admits that it is very unlikely that laws banning hate speech ever pass constitutional muster in America, he does believe that we have overprotected speech that not only causes significant harm to the dignity of minority groups but also, more importantly, diminishes the public good of inclusiveness that is an essential attribute of our society.
Waldrons general description of the kind of speech under discussion is expansive: The use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against it. The Justice faults him for not addressing the differences in the statutes in several countries where certain kinds of hate speech are outlawed. At the end of the essay, Stevens confesses that he has not been persuaded that it would be wise to outlaw the entire category of hate speech that Waldron describes, and it would appear that it will remain true that Americans are freer to think what we will and say what we think than any other people.
The only point which gives me pause is when the Justice seems to imply that the exchanges once common between rival ethnic groups might classify as hate speech, and cites (unnecessarilyis this significant?) an ethnic joke against Poles. I myself found the Festrunk Brothers of Steve Martin and Dan Aykroyd offensive, even demeaning of my ethnic background, but I would never characterize it as hate speech.
Peter Berger, the brilliant social theorist who brought European traditions of the Geisteswissenschaften to sociology in the U.S. (a counter-balance to the positivism of the How many freckle-faced left-handed Catholics go to Mass every week tradition), has a weekly blog here. In one of his essays he refers to a case before a district court in Texas in which the judge ruled that an imprecatory prayer uttered against a man who opposes religious activities in the U.S. military could not be considered to have caused harm and fell within the boundaries of freedom of speech. Berger comments:
There are a few things to be noted about this episode. As far as I can tell, Judge Hoffmans ruling follows an established tradition in American law: Speech, no matter how offensive or hurtful, is protected under the first amendmentunless it directly threatens or harms the targeted individuals. A classical case for this legal doctrine was the 1977 incident in Skokie, Illinois, where the United States Supreme Court ruled that a group that called itself the National Socialist Party of America had the right to parade with full Nazi regalia through the streets of this largely Jewish suburb of Chicagodespite the fact that one in six inhabitants was a Holocaust survivor. The same doctrine was invoked when the Supreme Court ruled that a Protestant fundamentalist group had the right to demonstrate at military funerals with the message that God was punishing America for its sinsdespite the fact that this action inflicted great hurt to the grieving families. I wonder whether this doctrine will come unglued, as the new concept of hate speech makes its way through the courts: Could not an atheist claim that a ceremonial curse constitutes hate speech? There is also the delicious irony in the fact that, if Weinstein had stipulated that a curse in the name of God could have real effects in the empirical world, he might not have won in a Texas court in 2012, but he would surely have won in a Salem, Massachusetts court in 1692though thereby implicitly denying his atheist worldview. (Of course both defendant and plaintiff might have been hanged eventually, the former for witchcraft, the latter for atheism.) Needless to say, he would also have won for many centuries in any court in so-called Christendom.

Two pieces bring the question of hate speech back before us. In the latest NY Review of Books and under the title Should Hate Speech be Outlawed?, Justice John Paul Stevens reviews Jeremy Waldrons The Harm in Hate Speech. While Waldron admits that it is very unlikely that laws banning hate speech will ever pass constitutional muster in America, he does believe that we have overprotected speech that not only causes significant harm to the dignity of minority groups but also, more importantly, diminishes the public good of inclusiveness that is an essential attribute of our society.Waldrons general description of the kind of speech under discussion is expansive:

The use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against it.

The Justice faults him for not addressing the differences in the statutes in several countries where certain kinds of hate speech are outlawed. At the end of the essay, Stevens confesses that he has not been persuaded that it would be wise to outlaw the entire category of hate speech that Waldron describes, and it would appear that it will remain true that Americans are freer to think what we will and say what we think than any other people.The only point which gives me pause is when the Justice seems to imply that the exchanges once common between rival ethnic groups might classify as hate speech, and cites (quite unnecessarily) an ethnic joke against Poles. I myself found the Festrunk Brothers of Steve Martin and Dan Aykroyd offensive, even demeaning of my ethnic background, but I would never characterize it as hate speech.Peter Berger, the brilliant social theorist who brought European perspectives of the Geisteswissenschaften to sociology in the U.S. (a counter-balance to the positivism of the How many freckle-faced left-handed Catholics go to Mass every week tradition), has a weekly blog here. In one of his essays he refers to a case before a district court in Texas in which the judge ruled that an imprecatory prayer uttered against a man who opposes religious activities in the U.S. military could not be considered to have caused harm and fell within the boundaries of freedom of speech. Berger comments:

There are a few things to be noted about this episode. As far as I can tell, Judge Hoffmans ruling follows an established tradition in American law: Speech, no matter how offensive or hurtful, is protected under the first amendmentunless it directly threatens or harms the targeted individuals. A classical case for this legal doctrine was the 1977 incident in Skokie, Illinois, where the United States Supreme Court ruled that a group that called itself the National Socialist Party of America had the right to parade with full Nazi regalia through the streets of this largely Jewish suburb of Chicagodespite the fact that one in six inhabitants was a Holocaust survivor. The same doctrine was invoked when the Supreme Court ruled that a Protestant fundamentalist group had the right to demonstrate at military funerals with the message that God was punishing America for its sinsdespite the fact that this action inflicted great hurt to the grieving families. I wonder whether this doctrine will come unglued, as the new concept of hate speech makes its way through the courts: Could not an atheist claim that a ceremonial curse constitutes hate speech? There is also the delicious irony in the fact that, if Weinstein had stipulated that a curse in the name of God could have real effects in the empirical world, he might not have won in a Texas court in 2012, but he would surely have won in a Salem, Massachusetts court in 1692though thereby implicitly denying his atheist worldview. (Of course both defendant and plaintiff might have been hanged eventually, the former for witchcraft, the latter for atheism.) Needless to say, he would also have won for many centuries in any court in so-called Christendom.

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Speech, like water, will seek and reach its own level, regardless. It's better to keep hate speech in the open so that it can be refuted or at least kept in public view. At this moment, I have in mind the good work of the Southern Poverty Law Center that keeps track of hate groups and educates the public and law enforcement about such organizations. See, for example, http://www.splcenter.org/get-informed/intelligence-report/browse-all-iss....

Link is to "The Year in Hate and Extremism 2011", the current issue of SPLC's INTELLIGENCE REPORT. There's something to be said for sunshine.

I'm of two minds about all this. As a strict defender of freedom of speech I lean one way, as an observer of what hate speech can do to kids I lean the other. And it does have discernible consequences sometimes.I wonder if it would be possible to outlaw hate speech against minors, e.g., the sort directed against gay kids. The problem would be to identify both the intention of the speaker and the effect on the hearer. I fear that adults simply have to bear with hate speech. But kids are another matter. They are so psychologically so vulnerable and incapable of defending themselves.

Just a few observations.1. There are and ought to be limits on what bad conduct is treated as criminal. 2. There can and ought to be some societal sanctions against some bad but not criminal conduct. These sanctions can be applied by by actions of members of institutions of civil society, e,g., religious communities, political parties, businesses, schools, etc. These sanctions ought to take the form of clearly expressed repudiation of the content of the offensive conduct.Waldren is quite right, I believe, in drawing attention to the communal damage that hate speech does. Even if Justice Stevens is right that legal sanctions against hate speech are not warranted, societal sanctions still are called for.Regrettably, there is a widespread view in the U. S. to the effect that if some conduct is not illegal, then it is socially acceptable. There is nothing "intolerant" about denouncing bad but not illegal conduct. Practical wisdom is required, though, to know how to sanction it.

" -- societal sanctions still are called for."Witness recent cancellations of sponsorship of the Rush Limbaugh, Glenn Beck, ad toiletem, programs.

Bernard --I agree that it would be better if the needed changes could be effected by non-governmental groups criticizing the bad guys. But how can a social group meaningfully condemn the behavior of others when the group holds that all ethics is subjective or relative to culture? Once again philosophy rears its ugly head.

"I wonder if it would be possible to outlaw hate speech against minors, e.g., the sort directed against gay kids," writes Ann Olivier.Speaking as a total non-lawyer, I don't see why this should be impossible (and a very good idea, what's more). After all, we protect children in all sorts of other ways, don't we? Child labor laws, restrictions on tobacco and alcohol (and pornography -- I think?) sales, car seat laws for toddlers, and so forth.The widespread confusion (that Bernard Dauenhauer points to) between the legal and the socially acceptable is, unfortunately, a major problem, and perhaps grows out of a certain view among certain members of the legal profession that, with the gradual extinction of religious and other traditional codes of conduct, it is up the lawyers to teach us the difference between right and wrong. We as Americans are quick to denounce corruption (political, economic, etc.) in other countries. In God's Own Country we legalize it, and thus pronounce it no longer corrupt (e.g., the Citizens United decision). Perhaps the Supreme Court will some day remove protections for children on the ground that they are violations of liberty.

It seems to me that sooner or later this libertarian Court is going to have to realize that by definition there is no law without substantial restrictions on liberty and without substantial demands made on action. Law demands, and law commands. It doesn't just say, "Yes, you may . . . "

Ann's question is a very good one: "But how can a social group meaningfully condemn the behavior of others when the group holds that all ethics is subjective or relative to culture?" It's the good question whether liberal social philosophy can account for and legitimize its own principles and, therefore and necessarily, many of its most cherished conclusions without regular recourse to petitio principii.

JAK --It seems to me that one problem with both parties is their lack of good theory. In the 1950's Russell Kirk, the moralist-political theorist, gave voice to a conservative theory with some depth, and a bit later William F. Buckley popularized KIrk's ideas so clearly and entertainingly that many ordinary citizens seem to have been permanently impressed. But those people are getting old, an unfortunately for conservatives, the flaws in the Kirk-Buckley economic thinking are becoming clearer by the day, so their conservative philosophy needs very serious revision.The Democrats, however, haven't had any combination of thinkers of even that caliber, at least not in my lifetime. FDR's social/political/economic values were very solid, but he wasn't a writer and so hasn't influence later generations with his books.So I think the Democrats are especially in need of a moralist=political philosopher who can ground a Democratic political theory on human nature (what else can it be grounded on?) and then invent the sort of political plan or vision for maintaining the common good we desperately need. (It's the notion of the common good that the conservatives so often short-change!)Of course, defining "conservative" and "liberal" is to some extent arbitrary. Shall we call the conservatives those who hold liberty and personal rights to be fundamental? I'm inclined that way. Are liberals those who hold that the common good and *equal rights* have to be the most basic grounds of a political system? Again, I'm inclined that way. At least divided up that way they would roughly balance each other. But neither party seems to have any deep appreciation of the role of *obligations* in a commonweal. And trying to determine just what those obligations are would no doubt inspire some heated as well as some vicious argumentation. Americans, conservative and liberal, don't like obligations. We're all libertarians in that respect. How to overcome the relativism and subjectivism of contemporary American ethics? I think there is already a stirring, if not a movement, underway in academe to find a way. More and more ethicians are seeing that utilitarianism, relativism and subjectivism just can't ground a rational ethics. Natural law teory has been earning some respect, and maybe this is a beginning. I strongly suspect that if the best of the Thomist natural law theorists (e.g., MacIntyre and Finnis) are going make any contributions to the movement they'll have to sometimes get down and dirty into such questions as abortion and euthanasia. No more just indulging in lofty theorizing about the metaphysical descriptions of human nature and about the ultimate foundations law. And, sadly, I fear that MacIntyre is just too old to move in that direction. Edward Feser might help, but I haven't read any of his (very conservative) political philosophy, and I don't know how creative he could be == or has been.

I do think that part of this problem is bound in American culture with its strong emphasis on individualism and libertarianism. This libertarian character (e.g live free or die) is both a strength and a weakness of US political culture.I can offer some simple anecdotal examples.When the pc's and internet became popularized, public libraries moved quickly to offer the service to the public. Here, in my city, content blocks were placed on anybody accessing pornographic material. Certain material was censored if it was pornographic in nature. If there was a doubt as to the legitimacy of the site, the customer could see the librarian. This was never really challenged as far as I know.I read in the US, where library's wanted to do similarly and there was a huge outcry against censorship.In Japan, following the tsunami, there was no looting. In the US, during Hurricane Katrina and other disasters there was.I agree with Bernard that there still can be societal sanctions that can be effective but this requires cohesive, mature communities and it is difficult to have cohesive communities while at the same time asserting the right of the individual.

What follows is far from a sufficient answer to the issues raised by Ann, Fr. Komonchak, and George D. I think that I have something useful tl say, but in the context of a blog comment, I can only gesture in the direction I'd pursue/ First, There's a difference between Christian ethics and philosophical ethics. Christian ethics necessarily includes the explicit obligation to worship God. Whether such an obligation is part of philosophical ethics is obviously a matter of controversy. Here I only want to talk in philosophical terms.Second, I take it that philosophical ethics concerns human action, including speech as a kind of action.Third, I take it that the issue raised by Waldren and Stephens has to do with action in a pluralistic society. By definition, a pluralistic society is one in which the fundamental bases from which norms governing public action are assessed are multiple and often not easily harmonized with one another. Fourth, with Aristotle, I take it that any discipline dealing with human action (see Aristotle's two Ethics, Politics, and Rhetoric) is one that cannot claim to have the degree of clarity and certitude that is available in what is called Aristotle's First philosophy. Accordingly, it makes sense to recognize that each subject matter has its own degree of clarity and certitude and that ethics has less of these than does logic or metaphysics. Fifth, also with Aristotle, I take it that moral virtue "lies in the mean" between excess and deficiency and that this mean is not absolute but rather is "relative to us."Two quick points: First, Aristotle's position is by no means dismissible as "relativistic." Moral judgments may be contestable, but it's not a matter f "subjectivism or "anything goes-ism." Second, Fr. Komonchak is right that some version of liberal social thought may be doomed to question begging. But there are many versions of what's lumped together as "liberal social thought." Walzer is not Rawls and neither of them is Nozick. and there's more.My earlier comment has at its base the ehtical thought of Paul Ricoeur. See his "Oneself as Another" as well as his subsequent collections called "The Just" and "Reflections on Justice." His position is not unproblematic in a number of respects, but I'm prepared to defend its general thrust. It draws on both Aristotle and Kant and gives due emphasis to practical wisdom. The points that I made in my earlier comment on this thread rest on my reading of his work. Immodestly, for a fuller discussion, let me mention my book "Paul Ricoeur: the Promise and Peril of Politics."I'd love to continue this discussion in a way that is appropriate for blogging, but I'm not quite sure what else I might usefully say at this point.Let me repeat. I do think that the points that Ann and Fr. Kopmonchak and George D are worth pursuing and am willing to do so if they, or someone else, wishes to do so.

Bernard --Where would you start such a discussion? With which problems?

Bernard Dauenhauer: OK, I see you've armed yourself with a supply of arrows. I have no doubt the arrows in your hand are good arrows.However, the point of departure in this thread was hate speech. But in your message @05/19/2012 - 8:06 pm, you do not mention hate speech. So armed with your fine arrows, how do you now propose to address the issue of hate speech?

"...moral virtue lies in the mean..."With all due respect to Aristotle, in this case he was mistaken, for we can know through Faith and reason that from The Beginning, God created every human individual, from the moment they were brought into being at conception, equal in Dignity, while being complementary as male and female. Moral virtue lies in respect for the inherent Dignity of the human person, because, from the beginning, we have been created in God's Image, to live in a communion of Love, while being called to The Communion of Perfect Love, The Blessed Trinity, simultaneously.""Our hearts are restless until they rest in you." - St.Augustine (HT-Father Joseph)

Ann and Thomas Farrell, here's something by way of a response to you. It's neither novel nor sufficient, but perhaps it will be of some use.First, I take it that there is at least some prima facie obligation for every competent citizen to be concerned with the quality of the public discourse in our political society. What it would take for a specific person to discharge this obligation would, of course, vary depending on his or her particular circumstances, but all would be bound to favor and encourage one another to do their parts to maintain an appropriate sort of civility in this public discourse.Second, two general considerations: (a) All detraction, as well as calumny, defamation, and libel, are offenses against this obligation. That is, some speech, even if what is said is true, can be detraction or defamation. For example, if I speak scornfully about a person precisely because of some physical or psychological handicap he or she has or precisely because of his or her ethnicity or sexual orientation, even if what I say is factually accurate, I am guilty of detraction or defamation.(b) Some bad speech rises to the level of hate speech. Drawing "bright red lines" to determine which bad speech is hate speech nay not be feasible. There may be borderline cases that are, in practice, indeterminable. But not all cases are borderline cases. How to classify a particular point on a color spectrum may not be certain, but we do know that yellow is not red.(c) I claim that hate speech deserves societal censure. Sometimes the proper censure will be a matter of shaming the offender. Whatever the censure or sanction it should be both proportional to the offense and oriented toward deterrence. Furthermore, it also should be geared to rehabilitate the offender. A rough "model" for this kind of sanction is that of sound international diplomacy designed to bring an offending state back into conformity to its international obligations.Dealing with bad public speech, including hate speech, is always going to be a "work in progress." Here are a couple of prosaic "rules of thumb." 1. Pay attention to the dimensions of the problem. Don't exaggerate it or try to find a definitive "cure" for it. There is no such cure. 2. Be proactive in cultivating civility. Prevention is better than repair. 3. In dealing with bad speech always be concerned with fairness as well as with effectiveness.Having bored all of you with this stuff that everybody already knows, let me add just one thing I'd like to be part of.I'd like to be part of an ongoing proactive ecumenical effort, lay led but with vocal and consistent clerical support, to promote respectful speech in the public domain among all citizens regardless of the nature or depth of their disagreements about public policy, candidates for public office, etc.

Hate speech can be particularly loathsome. Those who have been subjected to it, particularly at young and impressionable ages, know the depth of the nastiness that is experienced.It is not an academic question to the victims, not be a long shot.

Bernard --Thanks. That opens up a number of the tangle of issues.Let me just ask this one question: must we be civil to someone we have strong reason to despise, even hate? I suppose the problem is with the meaning of "civil", which generally implies non-accusatory speech, I think. Maybe we need a thread on "civility" alone.Then there's the question of whether or not it is always wrong to hate someone, where "hate" simply means ... Hey, what does "hate" mean? I get as far as "an extremely intense feeling of rejection or ill will", but that doesn't sound exactly right to me either. We probably need a thread on that too.

A tangent. I was slightly taken aback by the sentence: he does believe that we have overprotected speech that not only causes significant harm to the dignity of minority groups but also ...", because I do not think that dignity can be harmed by other people's words or actions.

Ann, I don't think that we ever have good reason to despise or hate anyone. Every person, precisely as a person, deserves fundamental respect and concern from each of us. All this is entailed, I think, by the Biblical command "Thou shall not kill" and the Golden Rule. But there is nothing "uncivil" or contemptuous in criticizing conduct or speech that disregards these requirements of respect and concern. For example, should I say or do something that displays contempt not for what Phil has said or done but for Phil as a person, then there is nothing "uncivil" for either Phil or someone else to say to me something like the following: "Bernard, what you have said about Phil is morally wrong. You owe him an apology and a commitment not to demean him again. If you fail to take these steps, then I (we) will do what we can to right the wrong that Phil you have inflicted on Phil. If necessary, I (we) will publicly mention you by name and rebuke you for what you have done. But in any event, whenever you repent of what you have done to Phil, I (we) will be happy to have your company once again."Such an approach to the problem, especially if announced in advanced, can be an effective deterrent to people tempted to speak hatefully. It also has the merit of showing the path to rehabilitation.

"Such an approach to the problem, especially if announced in advanced, can be an effective deterrent to people tempted to speak hatefully."My, you DO live in a dream world, don't you? I can just see the neo-Nazi skinheads and Fred Phelps falling to their knees and professing babbling shame and repentence.

Jimmy Mac, there are philosophers and others who hold that some wrongdoing is unforgivable. There are others who hold that forgiveness ought to be made conditional upon the fulfillment of some stringent and very burdensome conditions. I disagree and have argued in print against these views. Needless to say, I have not convinced them that I am right.But let me ask you what you would want to be done to people who engage in hate speech?

Bernard --I don't think that hatred always implies a desire to kill, though like any word it's ambiguous. The moral problem to me is whether or not hatred (an intense anger?) is ever morally *appropriate*. I'm thinking of the Jews at Auschwitz who saw their children killed, or black Southerners who saw their people lynched. Surely people are not morally liable for such natural feelings, and if they are not liable, then we can't say that allowing hatred to persist in ourselves is always morally wrong. And if that is so, how can hate speech be always wrong?What is it that's so wrong about hate speech -- the hate? the meaning of the speech? the effect of the hatred and meaning on other people? some combination of all those factors?

Ann, Neither do I think that "hatred always implies a desire to kill." I was referring to the 5th commandment's prohibitions, which include such things as maiming, contempt, hatred, etc.I take hatred to be a vice, the correlative opposite of love. As such, it is a deliberately adopted attitude, an attitude that one may take in opposition to one's emotions, even very strong emotions. I do readily admit that some people may be so overwhelmed by revulsion engendered by others' wrongdoings that they are unable to forgive or get beyond their readily understandable feelings of animosity. To that extent, these feelings impede the exercise of freedom and so these people are not culpable for their animosity. But if, hatred is, as I hold, a freely adopted attitude, then it is always morally wrong to hate another person.

Bernard --When I think of the use of "hate" I think of two dogs I knew who were said to hate each other. Their feelings were ferocious that one day when they got into the same yard they tried to kill each other. It was horrible. It took two big men to separate them. That is emotional hate, and I think it's the core meaning, but that might be because I have such a vivid image of those dogs fighting.I agree there is such a thing as "hatred" that is chosen. Iago and Satan in "Paradise lost' are prime examples. In my experience that's rare, but I'm not a gay teen-ager. Insofar as it's more than a feeling and a matter of thinking and choice then, yes, it can properly be prohibited by law. But I don't think you can prohibit feelings that are not acted on. Feelings are automatic, they're not a matter of choice, at least not at first appearance. They can often be willed away, but if Freud is right (and he often is about feelings) they don't really go away, they're only repressed unless they can be dealt with in therapy.I agree with you that feelings can impede our own freedom. When intense enough they make choice impossible. It's this fact, I think, that those of "libertarian" bent often don't appreciate. Having what you want when you want it won't give you no satisfaction, no, no, no, no.

My last post needs some revision -- too much freedom can limit our satisfaction, though it doesn't always limit our choices, at least not at the moment. Wrong choices can limit future choices and future satisfaction -- e.g. when a druggie wrecks his brain, his future choices can be drastically reduced.I think this was a huge problem for the boomers. Freedom can limit future freedom, satisfaction can make later satisfaction impossible. Limits are the enemy but they're necessary. Quite a paradox there. Even feelings which are supposed to lead to satisfaction end up being destructive of our own happiness or others'.

I agree that there has been an inflation (or rather a deflation) in the applicability of the word "hatred" for speech that a person or group finds offensive. (In this respect, it's somewhat similar to the use of the word "homophobia". A nephew kept using the adjective "awesome" to describe quite ordinary good things he encountered. I asked him, "Matthew, what word will you use if something truly awesome comes along?")I mentioned in my original post that Justice Stevens seemed to regard ethnic jokes as "hate speech," which surprised me. In the latest Atlantic, James Harkin's essay describes some of the pitch black humor that many Syrians are using these days as a way of coping with their dreadful experiences. But he has also this paragraph: "Genuine affection for ethnic or religious others, the Slovenian philosopher Slavoj Zizek once told me, comes when you're confident enough to swap insults and obscenities. It was only when the situation in the Balkans turned sour, he pointed out, that the ethnic jokes began to dry up."That was my experience, too. The exchange of ethnic insults in our multi-ethnic grade school and high school was a friendly one, and there was always this rejoinder: "Sticks and stones may break my bones, but words will never hurt me." The kind of "snaps" humor expressed among African Americans could never be used by whites, just as they may use--and use affectionately--among themselves words that would be the unpardonable sin on the lips of others.

Here's a review by John Paul Stevens of a book on outlawing hate speech.http://www.nybooks.com/articles/archives/2012/jun/07/should-hate-speech-...

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About the Author

Rev. Joseph A. Komonchak, professor emeritus of the School of Theology and Religious Studies at the Catholic University of America, is a retired priest of the Archdiocese of New York.