And then next we will have people arguing that women should have to wear burqas in certain neighborhoods of American cities because of the anticipated reaction of certain of the inhabitants. Or in all parts of the US, because our "licentious" customs stir up anger that leads to terrorist attacks. Once we start giving up freedom because of intimidation from those who threaten violence, we have given up the game. Who next will decide to engage in violence so as silence those with whom they disagree, or so as to require them to follow religious rules of conduct? Isn't it clear that a legal prohibition on publishing images of Mohammed is indeed an establishment of a rule of religious conduct as law? Should civil rights marches have been prohibited because of anticipated violence by white racists? Should abortions be prohibited because of the reaction of violent anti-abortion activists (though they represent only a very small fringe of the pro-life movement)? And if you think flag burning is unlikely to result in violence, you have lived too secluded a life. Mark Scarberry Pepperdine
________________________________ From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Thu 9/16/2010 4:18 PM To: Law & Religion issues for Law Academics Subject: RE: N.J. public transit employee fired for blasphemy The trouble is that if we're worried about the well-being of the tent, we need to know a bit more about the creature whose nose is coming in. Is it a mouse? A camel? A horde of army ants? So far, in this thread - and, if my memory serves me right, in the other threads where Prof. Jamar has urged that "hate speech" be punishable - I have not seen any real description of the creature, other than the label "hate speech" and the need to look at "context," "method," and (here) "calculated to inflame another." It seems to me that prudent people, when asked to recognize a limit on a constitutional right, ought to figure out a bit more about the scope of the exception, and what it will do a broad range of behavior and not just the particular behavior that the advocate is seeking to suppress. Would it, for instance, authorize punishment for burning a flag, if that seems to observers to be motivated by "hate" towards the country involved, and if it "calculated to inflame another"? How about publication of the Mohammed cartoons? Publication of the Satanic Verses, if the prosecution argues that the publisher is actually motivated by hostility to Islam (and knows how many people were murdered and injured by Muslim exremists in riots prompted by publication of the cartoons)? Harsh criticism of Israel? Of Catholicism? Of all religion? Give us a definition, and we can at least try to figure this out. It doesn't have to be perfect, but "Context matters. Method matters. Calculated to inflame another matters" is not enough. As to the other rules: Falsely shouting fire, I think would likely be punishable as a knowingly false statement of fact. Fighting words are not perfectly defined, but given Cohen, Gooding, and Johnson, they are at least sharply limited to speech that is insulting to a particular person, and said to that person in a context that is likely to provoke a fight. Incidentally, note the dynamic of the slippery slope in one of Prof. Jamar's posts, even while the other tries to dismiss the slippery slope risk. The fighting words exception has been forcefully criticized; it has been gradually narrowed by the Court; it's not exactly a great doctrinal success story; but now its validity is not just being assumed, but is being used to justify a very different new exception. If the hate speech exception is accepted, and accepted with the sorts of very vague boundaries that Prof. Jamar seems to prefer, what other new exceptions would then be justified by analogy to it? Eugene Steve Jamar writes: Can you give me the rule that supports not yelling fire? Or how to distinguish fighting words in all cases? Context matters. Method matters. Calculated to inflame another matters. Of course you may disagree with other speech rrestrictions because a computer cannot apply them in a simple syllogistic manner-- fair enough, but all such rules have boundaries worked out over time. He also writes: Not every camel's nose under the tent leads to the collapse of the tent. On Sep 16, 2010, at 4:34 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: I indeed believe that people should be free to express hatred of the Koran, or of Christianity, or of America, or of Israel, or of Iran, or of whatever else. And I think the suggestion that people could be punished - maybe even sent to prison, yes? - for expressing hatred of the Koran or of Islam just helps show the problem with "hate speech" laws. But the deeper problem with many calls for regulation of hate speech, including this one, is that they almost never come with a clear definition of just what constitutes the "hate speech" that people could now be punished for. Can we have a definition out on the table, so we can figure just what else besides burning the Koran would be punishable? (Would it, for instance, allow people to be imprisoned for published the Mohammed cartoons? For arguing that Catholicism is a diabolical religion, or for that matter a harmful one?) Eugene
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