The issue Alan raises has come up in the debate over "defamation of religions" because many European countries have laws regarding incitement to racial or religious hatred, many of which were designed during the post-war period to respond to Nazi tactics against Jewish Germans. These incitement laws would have trouble being applied in the US unless they qualified under Brandenburg.
But I don't think what we are talking about with respect to defamation of religions, or burning the Koran or Talmud (apparently Pastor Jones wanted to burn both) is really "incitement." There is a big difference between (1) A saying to B "C is evil, C should be killed"and then B goes out and tries to kill C; and (2) A saying to B "your religious beliefs are wrong" and B responds by trying to kill A (or innocent third parties C or D, if they happen to be closer). Situation (1) is what is typically meant by incitement and is a lot closer to conspiracy to commit a crime; one can envision some scenarios where A could be held liable. Situation (2) is what French law calls "provocation"; under French law (and several other Continental legal systems) such a provocation might give grounds for tort liability but it would not justify B's retaliating with violence. I don't see how in situation (2), even when B predictably riots and kills innocent third parties C or D, A can be held responsible for B's actions. B is the agent at fault, not A. There are also some interesting parallels to the crime-facilitating speech issue that Eugene has written about, though I have not really thought those through. ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu] Sent: Thursday, September 16, 2010 1:24 PM To: Law & Religion issues for Law Academics Subject: RE: N.J. public transit employee fired for blasphemy While I believe that desecrating sacred objects is protected speech, I'm not sure that I'm persuaded by the argument that the critical issue is whether the response of the audience to speech is "justifiable" or not. In the South, 100 years ago, spreading a false statement that an African-American had attacked or threatened a white woman would have been understood to risk provoking a violent assault on the African-American. Is the speaker's knowingly false statement protected speech in that case because lynching is never justified. I think there are many situations in which expressing a false statement will predictably provoke acts of violence against an innocent person. I'm not convinced that all such statements are protected speech because the acts of violence are unjustified. Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, September 16, 2010 9:31 AM To: Law & Religion issues for Law Academics Subject: RE: N.J. public transit employee fired for blasphemy Part of the problem with the analogy is that rushing out of the theater when someone shouts "Fire!" is a justifiable response by those in attendance. If the shouter is telling the truth about the fire, then they ought to try to get out, and no one is to blame. If the shouter is not telling the truth--there is no fire--then he is to blame for crying wolf and can be held responsible. By contrast, killing someone or burning down an embassy in Jordan is not a justifiable response to the publication of a cartoon insulting Mohammed in Denmark. Perhaps the reaction is predictable, but the publisher cannot be blamed for the reaction, regardless of his intent in publishing it. This issue has come up in the context of the Organisation of the Islamic Conference's "defamation of religions" push at the United Nations. (I should disclose that the Becket Fund has been adamantly opposed to this initiative from its inception -- see e.g. http://www.becketfund.org/files/87155.pdf.) Part of the argument for a rule of international law allowing states to suppress "defamation of religion" is that Muslims cannot restrain themselves from acting violently when they perceive an insult to their religion. This approach deprives individual Muslims of their dignity as moral agents and treats them as inherently unreasonable and thus unaccountable for their actions. Unfortunately Justice Breyer's analogy could be interpreted (whether he meant it to or not) to partake in this approach. ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. [con...@indiana.edu] Sent: Thursday, September 16, 2010 11:25 AM To: 'Law & Religion issues for Law Academics' Subject: RE: N.J. public transit employee fired for blasphemy In an interview with George Stephanopolous, Justice Breyer has suggested that burning the Koran conceivably might not be protected by the First Amendment at all. According to Breyer, "Holmes said it doesn't mean you can shout 'fire' in a crowded theater . . . . Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death? . . . It will be answered over time in a series of cases which force people to think carefully." http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html Surely this cannot be unprotected speech, can it? Wouldn't that amount to a global heckler's veto whenever speech triggers or threatens a sufficiently violent reaction? And wouldn't such a doctrine effectively reward - and thus encourage - such violence or threats thereof? Dan Conkle ************************************************ Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu ************************************************ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, September 15, 2010 8:06 PM To: Law & Religion issues for Law Academics Subject: N.J. public transit employee fired for blasphemy The New York Daily News, http://www.nydailynews.com/ny_local/2010/09/14/2010-09-14_koran_burner_derek_fenton_fired_from_his_job_at_nj_transit.html, reports: [Derek Fenton, t]he protester who burned pages from the Koran outside a planned mosque near Ground Zero has been fired from NJTransit, sources and authorities said Tuesday.... "Mr. Fenton's public actions violated New Jersey Transit's code of ethics," an agency statement said. "NJ Transit concluded that Mr. Fenton violated his trust as a state employee and therefore [he] was dismissed." ... Fenton was an assistant train-consist coordinator, sources said - a job that entails ensuring there are enough train cars positioned to be put into service.... If Fenton was fired for burning the Koran while off-duty, his First Amendment rights probably were violated, Chris Dunn of the New York Civil Liberties Union said.... Is this permissible under Pickering? Should it be? Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
