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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