I agree that my examples do little to resolve the burning of sacred texts question or reactions to true statements or statements of opinion. I just wanted to make the point that the justifiability of the audience's response shouldn't control the analysis.
I think there is a question as to whether the communication of true information can make a speaker vulnerable to liability. If a KKK leader states that his men will assault anyone who insults a white woman and X knows this and truthfully reports such an incident and the threatened assault occurs, can X be subject to either civil or criminal liable. But it is off topic. Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, September 16, 2010 11:12 AM To: Law & Religion issues for Law Academics Subject: RE: N.J. public transit employee fired for blasphemy As I understand it, there has been some debate about this issue (though generally as to lost business and social opportunities, not as to violence) in libel law. For instance, as I understand it there has been some controversy about whether falsely claiming someone is black is defamatory; more recently, the same matter came up with regard to false claims that someone is gay. Should the likelihood that people will shun someone because of such allegations, even if the court thinks it's wrong for them to do so, suffice to allow recovery? There's a split of authority on that, if I recall. But it seems to me that this question, interesting as it is, arises chiefly as to knowingly false statements of fact precisely because those statements are independently unprotected, at least when said about a particular person. (For instance, even if they are not defamatory, they may still be actionable as false light invasion of privacy.) I realize that this is what Eric's explanation of the "falsely shouting fire" example involved, so I'm not faulting Alan for taking that up. But I just don't think that this analysis tells us much when it comes to the reactions to true statements, or to statements of opinion. Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > Sent: Thursday, September 16, 2010 10:25 AM > 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-burn > ing- 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. _______________________________________________ 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.
