date:20100916


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



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RE: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Michael Masinter

In defense of Justice Breyer, I don't think he called into question  
first amendment doctrine as it might apply to Q'ran burning; the  
reported text of his remarks suggests only that he was speaking with  
the prudence of a Justice talking about a legal issue that might some  
day come before the Court.


It will be answered over time in a series of cases which force people  
to think carefully.  Thats the virtue of cases, Breyer told me. And  
not just cases. Cases produce briefs, briefs produce thought.  
Arguments are made. The judges sit back and think. And most  
importantly, when they decide, they have to write an opinion, and that  
opinion has to be based on reason.  It isnt a fake.


That strikes me as a pretty accurate description of how the Court works.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting "Conkle, Daniel O." :

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







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Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Hamilton02

How does burning the Koran differ from burning the flag? I thought we had
been through this debate before and find Justice Breyer's comments strange,
to say the least.

Marci

In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time,
con...@indiana.edu writes:

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-k
oran-shouting-fire-in-a-crowded-theater.html_
(http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowde
d-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

___
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Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Ann Althouse

I think Breyer was attempting to demonstrate his approach to constitutional law 
interpretation — thinking out loud to show how he would work through the 
material in an idealized, judgely fashion. He's absorbed in the subject of 
case-by-case adjudication and how "carefully" everything needs to be thought 
about. It was very ivory tower of him not to anticipate how his statement would 
play in the press and with laypersons who jump to read it as tipping his hand 
on what he'd really decide about free speech and Koran-burning.

Ann

On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com wrote:

> How does burning the Koran differ from burning the flag?  I thought we had 
> been through this debate before and find Justice Breyer's comments strange, 
> to say the least.
>  
> Marci
>  
>  
> In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, 
> con...@indiana.edu writes:
> 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 crowdedtheater 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
> 
>  
> ___
> 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.

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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 t

RLUIPA anniversary event

2010-09-16 Thread eric treene

For those list participants near DC, ACS is hosting an interesting RLUIPA
anniversary panel next week, featuring at least four list participants.  For
those not near DC, seeing Marci, Doug, Marc, and Roman on the same panel
debating this issue may be worth a plane ticket.

Eric Treene

___


The American Constitution Society for Law and Policy invites you to attend:

 
RLUIPA 10 YEARS LATER
 
President Clinton signed the Religious Land Use and Institutionalized
Persons Act into law on September 22, 2000. Fast forward a decade later, we
as a society are still debating the meaning of religious freedom in a
pluralistic democracy. Most recently, we have seen the American fabric fray
around the siting of an Islamic community center in downtown Manhattan, not
far from the where the World Trade Center stood.

As we look back at the 10 years since RLUIPA was passed, what has the law
achieved? Where hasn't it lived up to the expectations of those who fought
for its enactment?  Which harms predicted by its opponents have come to
pass? Which haven't?
 
On September 21, 2010, a panel of experts, including academics and
practitioners in the field, will discuss these and other related questions
on the occasion of RLUIPA's 10th anniversary.

The program will be held from 12:30 - 2:30 and will feature:
 
. Opening Remarks: Assistant Attorney General Thomas E. Perez, U.S.
Department of Justice, Civil Rights Division

. Introduction: David Lachmann, Chief of Staff, House Subcommittee
on the Constitution, Civil Rights, and Civil Liberties

. Panel:

oMarci Hamilton, Paul R. Verkuil Chair in Public Law, Cardozo School of
Law

oDouglas Laycock, Armistead M. Dobie Professor of Law and Horace W.
Goldsmith Research Professor of Law, University of Virginia School of Law

oElizabeth Merritt, Deputy General Counsel, National Trust for Historic
Preservation

oMarc Stern, Associate General Counsel, American Jewish Committee 

oRoman Storzer, Partner, Storzer & Greene
 
 

Register Now! http://www.acslaw.org/node/16871 

Lunch will be provided at 12:00, with program to begin at 12:30.

Tuesday, September 21, 2010
Rayburn House Office Building, Room 2226
Independence Avenue and South Capitol Street
Washington, DC 20003
 
 
 


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RE: RLUIPA anniversary event

I hope ACS is planning on putting the program on line or making a tape of it. A 
lot of us out of the area would like to have access to it.

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of eric treene
Sent: Thursday, September 16, 2010 10:29 AM
To: 'Law & Religion issues for Law Academics'
Subject: RLUIPA anniversary event

For those list participants near DC, ACS is hosting an interesting RLUIPA 
anniversary panel next week, featuring at least four list participants.  For 
those not near DC, seeing Marci, Doug, Marc, and Roman on the same panel 
debating this issue may be worth a plane ticket.

Eric Treene

___

The American Constitution Society for Law and Policy invites you to attend:

RLUIPA 10 YEARS LATER

President Clinton signed the Religious Land Use and Institutionalized Persons 
Act into law on September 22, 2000. Fast forward a decade later, we as a 
society are still debating the meaning of religious freedom in a pluralistic 
democracy. Most recently, we have seen the American fabric fray around the 
siting of an Islamic community center in downtown Manhattan, not far from the 
where the World Trade Center stood.

As we look back at the 10 years since RLUIPA was passed, what has the law 
achieved? Where hasn't it lived up to the expectations of those who fought for 
its enactment?  Which harms predicted by its opponents have come to pass? Which 
haven't?

On September 21, 2010, a panel of experts, including academics and 
practitioners in the field, will discuss these and other related questions on 
the occasion of RLUIPA's 10th anniversary.

The program will be held from 12:30 - 2:30 and will feature:

. Opening Remarks: Assistant Attorney General Thomas E. Perez, U.S.
Department of Justice, Civil Rights Division

. Introduction: David Lachmann, Chief of Staff, House Subcommittee
on the Constitution, Civil Rights, and Civil Liberties

. Panel:

oMarci Hamilton, Paul R. Verkuil Chair in Public Law, Cardozo School of
Law

oDouglas Laycock, Armistead M. Dobie Professor of Law and Horace W.
Goldsmith Research Professor of Law, University of Virginia School of Law

oElizabeth Merritt, Deputy General Counsel, National Trust for Historic
Preservation

oMarc Stern, Associate General Counsel, American Jewish Committee 

oRoman Storzer, Partner, Storzer & Greene

Register Now! http://www.acslaw.org/node/16871 

Lunch will be provided at 12:00, with program to begin at 12:30.

Tuesday, September 21, 2010
Rayburn House Office Building, Room 2226 Independence Avenue and South Capitol 
Street Washington, DC 20003

___
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Justice Breyer's comments

   According to 
http://newsbusters.org/blogs/scott-whitlock/2010/09/14/george-stephanopoulos-should-threat-koran-burning-make-us-rethink-fi#ixzz0zZkDHzwW,
 here's how the exchange went:

STEPHANOPOULOS: You know, when we spoke several years ago, you talked about how 
the process of globalization was changing our understanding of the law. When 
you think about the internet and when you think about the possibility that, you 
know, a pastor in Florida with a flock of 30, can threaten to burn the Koran 
and that leads to riots and killings in Afghanistan, does that pose a challenge 
to the First Amendment, to how you interpret it? Does it change the nature of 
what we can allow and protect?
BREYER: Well, in a sense, yes. In a sense, no. People can express their views 
in debate. No matter how awful those views are. In debate. A conversation. 
People exchanging ideas. That's the model. So that, in fact, we are better 
informed when we cast that ballot. Those core values remain. How they apply can-
STEPHANOPOULOS: The conversation is now global.
BREYER: Indeed. And you can say, with the internet, you can say this. Holmes 
said, it doesn't mean you can shout fire in a crowded theater. Well, what is 
it? Why? Well people will be trampled to death. What is the crowded theater 
today? What is-
STEPHANOPOULOS: That's exactly my question.
BREYER: Yes. Well, perhaps that will be answered by- if it's answered, by our 
court. It will be answered over time, in a series of cases, which force people 
to think carefully. That's the virtue of cases.

   The "in a sense, yes. In a sense, no" line suggests to me that 
Justice Breyer is indeed trying to suggest that modern conditions - including 
the possibility that speech here can lead to killings abroad - may in some 
measure "change the nature of what we can allow and protect."  Otherwise, why 
say the "in a sense, yes" part?

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ann Althouse
Sent: Thursday, September 16, 2010 9:56 AM
To: Law & Religion issues for Law Academics
Subject: Re: N.J. public transit employee fired for blasphemy

I think Breyer was attempting to demonstrate his approach to constitutional law 
interpretation - thinking out loud to show how he would work through the 
material in an idealized, judgely fashion. He's absorbed in the subject of 
case-by-case adjudication and how "carefully" everything needs to be thought 
about. It was very ivory tower of him not to anticipate how his statement would 
play in the press and with laypersons who jump to read it as tipping his hand 
on what he'd really decide about free speech and Koran-burning.

Ann

On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com 
wrote:


How does burning the Koran differ from burning the flag?  I thought we had been 
through this debate before and find Justice Breyer's comments strange, to say 
the least.

Marci


In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, 
con...@indiana.edu writes:
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

___
To post, send message to 
Religionlaw@lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can 
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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 t

RE: Justice Breyer's comments

2010-09-16 Thread Douglas Laycock

Sounds to me like he's saying the Court needs to think about it.  Not that
Koran burning is unprotected or even that he is leaning that way, but that
there are some new facts and new arguments here that require reconsideration
of the question.

 

And weren't the flag-burning cases 1989 and 1990?  He wasn't there, and we
don't know what the thinks about them.

 

Douglas Laycock

Armistead M. Dobie Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, September 16, 2010 2:12 PM
To: Law & Religion issues for Law Academics
Subject: Justice Breyer's comments

 

   According to
http://newsbusters.org/blogs/scott-whitlock/2010/09/14/george-stephanopoulos
-should-threat-koran-burning-make-us-rethink-fi#ixzz0zZkDHzwW, here's how
the exchange went:

 

STEPHANOPOULOS: You know, when we spoke several years ago, you talked about
how the process of globalization was changing our understanding of the law.
When you think about the internet and when you think about the possibility
that, you know, a pastor in Florida with a flock of 30, can threaten to burn
the Koran and that leads to riots and killings in Afghanistan, does that
pose a challenge to the First Amendment, to how you interpret it? Does it
change the nature of what we can allow and protect?

BREYER: Well, in a sense, yes. In a sense, no. People can express their
views in debate. No matter how awful those views are. In debate. A
conversation. People exchanging ideas. That's the model. So that, in fact,
we are better informed when we cast that ballot. Those core values remain.
How they apply can-

STEPHANOPOULOS: The conversation is now global.

BREYER: Indeed. And you can say, with the internet, you can say this. Holmes
said, it doesn't mean you can shout fire in a crowded theater. Well, what is
it? Why? Well people will be trampled to death. What is the crowded theater
today? What is-

STEPHANOPOULOS: That's exactly my question.

BREYER: Yes. Well, perhaps that will be answered by- if it's answered, by
our court. It will be answered over time, in a series of cases, which force
people to think carefully. That's the virtue of cases.

 

   The "in a sense, yes. In a sense, no" line suggests to me
that Justice Breyer is indeed trying to suggest that modern conditions -
including the possibility that speech here can lead to killings abroad - may
in some measure "change the nature of what we can allow and protect."
Otherwise, why say the "in a sense, yes" part?

 

   Eugene

 

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ann Althouse
Sent: Thursday, September 16, 2010 9:56 AM
To: Law & Religion issues for Law Academics
Subject: Re: N.J. public transit employee fired for blasphemy

 

I think Breyer was attempting to demonstrate his approach to constitutional
law interpretation - thinking out loud to show how he would work through the
material in an idealized, judgely fashion. He's absorbed in the subject of
case-by-case adjudication and how "carefully" everything needs to be thought
about. It was very ivory tower of him not to anticipate how his statement
would play in the press and with laypersons who jump to read it as tipping
his hand on what he'd really decide about free speech and Koran-burning.

 

Ann

 

On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com wrote:

 

How does burning the Koran differ from burning the flag?  I thought we had
been through this debate before and find Justice Breyer's comments strange,
to say the least.

 

Marci

 

 

In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time,
con...@indiana.edu writes:

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-ko
ran-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

 

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P

Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Sanford Levinson

Without necessarily wishing to defend Justiice Breyer's offhand suggestion, 
isn't the obvious difference between flag burning and Koran burning a) the 
predictability of "real" violence, some of it directed against Americans and !
b) severe consequences for basic American national security interests. Anyone 
who finds Scalia's "Americans will die" comment to be a plausible "argument" of 
constititional law should be hesitant to censure Breyer.

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Thu Sep 16 11:55:58 2010
Subject: Re: N.J. public transit employee fired for blasphemy

I think Breyer was attempting to demonstrate his approach to constitutional law 
interpretation — thinking out loud to show how he would work through the 
material in an idealized, judgely fashion. He's absorbed in the subject of 
case-by-case adjudication and how "carefully" everything needs to be thought 
about. It was very ivory tower of him not to anticipate how his statement would 
play in the press and with laypersons who jump to read it as tipping his hand 
on what he'd really decide about free speech and Koran-burning.

Ann

On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com 
wrote:

How does burning the Koran differ from burning the flag?  I thought we had been 
through this debate before and find Justice Breyer's comments strange, to say 
the least.

Marci


In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, 
con...@indiana.edu writes:
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

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RE: N.J. public transit employee fired for blasphemy



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 mig

Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Marie A. Failinger

Per Sandys' and others' remarks, it seems to me if we think about it,
virtually all of the incitement cases ultimately rest on the Court's
perception that real people will or will not be seriously harmed or
killed.  (In Dennis and the WWI cases, apparently they thought yes; in
Brandenburg and some other WWI and cases like Terminiellio, etc. no.) 
And, I think it is fair to recognize the dilemma that the local sheriff
and judge (and ultimately the Supreme Court) face here:  it may be true
that we do not and should not hold individuals criminally responsible
for their omission/failure to stop a criminal act from causing the harm;
in that sense,  courts and sheriff are not RESPONSIBLE in that legal
sense for what violent Islamicists do about a Qur'an burning.  But that
doesn't mean they themselves don't face a moral dilemma in SOME cases
like this, i.e., if they act to quash the speech, some people's lives
will be saved, while uncertain harm to speech interests will occur.   
 
Of course, predicting what will actually happen can be a messy
business, as all of those cases point out, which argues for a strong
speech-protective regimen.  But as much a civil libertarian as I am, I
am not sure I would not stop the Qur'an burning if I were quite
convinced even one death would result from suppressing it, even if the
"national security" rationale is more uncertain and nebulous.  



Without necessarily wishing to defend Justiice Breyer's offhand
suggestion, isn't the obvious difference between flag burning and Koran
burning a) the predictability of "real" violence, some of it directed
against Americans and !
b) severe consequences for basic American national security interests.
Anyone who finds Scalia's "Americans will die" comment to be a plausible
"argument" of constititional law should be hesitant to censure Breyer.

Sandy
From: religionlaw-boun...@lists.ucla.edu
 
To: Law & Religion issues for Law Academics
 
Sent: Thu Sep 16 11:55:58 2010
Subject: Re: N.J. public transit employee fired for blasphemy 

I think Breyer was attempting to demonstrate his approach to
constitutional law interpretation — thinking out loud to show how he
would work through the material in an idealized, judgely fashion. He's
absorbed in the subject of case-by-case adjudication and how "carefully"
everything needs to be thought about. It was very ivory tower of him not
to anticipate how his statement would play in the press and with
laypersons who jump to read it as tipping his hand on what he'd really
decide about free speech and Koran-burning.


Ann

On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com wrote:




How does burning the Koran differ from burning the flag?  I thought we
had been through this debate before and find Justice Breyer's comments
strange, to say the least.

 
Marci
 
 
In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time,
con...@indiana.edu writes:



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
 
___
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.


 
 
Marie A. Failinger

Professor of Law
Editor, Journal of Law and Religion
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651-523-2124 (work phone)
651-523-2236 (work fax)
mfailin...@hamline.edu (email)


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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: N.J. public transit employee fired for blasphemy

This case is easy if one accepts the legitimacy of regulating and in  
some instances curtailing hate speech.


I know Eugene does not.

Sent from Steve Jamar's iPhone

On Sep 16, 2010, at 3:02 PM, "Marie A. Failinger" > wrote:


Per Sandys' and others' remarks, it seems to me if we think about  
it, virtually all of the incitement cases ultimately rest on the  
Court's perception that real people will or will not be seriously  
harmed or killed.  (In Dennis and the WWI cases, apparently they  
thought yes; in Brandenburg and some other WWI and cases like  
Terminiellio, etc. no.)  And, I think it is fair to recognize the  
dilemma that the local sheriff and judge (and ultimately the Supreme  
Court) face here:  it may be true that we do not and should not hold  
individuals criminally responsible for their omission/failure to  
stop a criminal act from causing the harm; in that sense,  courts  
and sheriff are not RESPONSIBLE in that legal sense for what violent  
Islamicists do about a Qur'an burning.  But that doesn't mean they  
themselves don't face a moral dilemma in SOME cases like this, i.e.,  
if they act to quash the speech, some people's lives will be saved,  
while uncertain harm to speech interests will occur.


Of course, predicting what will actually happen can be a messy  
business, as all of those cases point out, which argues for a strong  
speech-protective regimen.  But as much a civil libertarian as I am,  
I am not sure I would not stop the Qur'an burning if I were quite  
convinced even one death would result from suppressing it, even if  
the "national security" rationale is more uncertain and nebulous.



Without necessarily wishing to defend Justiice Breyer's offhand  
suggestion, isn't the obvious difference between flag burning and  
Koran burning a) the predictability of "real" violence, some of it  
directed against Americans and !
b) severe consequences for basic American national security  
interests. Anyone who finds Scalia's "Americans will die" comment to  
be a plausible "argument" of constititional law should be hesitant  
to censure Breyer.


Sandy

From: religionlaw-boun...@lists.ucla.edu >
To: Law & Religion issues for Law Academics >

Sent: Thu Sep 16 11:55:58 2010
Subject: Re: N.J. public transit employee fired for blasphemy
I think Breyer was attempting to demonstrate his approach to  
constitutional law interpretation — thinking out loud to show how he 
 would work through the material in an idealized, judgely fashion. H 
e's absorbed in the subject of case-by-case adjudication and how "ca 
refully" everything needs to be thought about. It was very ivory tow 
er of him not to anticipate how his statement would play in the pres 
s and with laypersons who jump to read it as tipping his hand on wha 
t he'd really decide about free speech and Koran-burning.


Ann

On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com wrote:

How does burning the Koran differ from burning the flag?  I thought  
we had been through this debate before and find Justice Breyer's  
comments strange, to say the least.


Marci


In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, con...@indiana.edu 
 writes:
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 tramp 
led 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 a 
mount to a global heckler’s veto whenever speech triggers or threa 
tens a sufficiently violent reaction?  And wouldn’t such a doctrin 
e effectively reward - and thus encourage - such violence or threa 
ts thereof?



Dan Conkle


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.




Marie A. Failinger

Professor of Law
Editor, Journal of Law and Religion
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651-523-2124 (work phone)
651-523-2236 (work fax)
mfailin...@hamline.edu (email)


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change op

RE: N.J. public transit employee fired for blasphemy

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 dig

Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread ArtSpitzer

Many thousands of deaths predictably result from the consumption of alcohol 
by persons who own motor vehicles.   All bars and taverns should therefore 
be closed forthwith.

Art Spitzer

In a message dated 9/16/10 3:07:59 PM, mfailin...@gw.hamline.edu writes:

> I am not sure I would not stop the Qur'an burning if I were 
> quite convinced even one death would result from suppressing it, even if the 
> "national 
> security" rationale is more uncertain and nebulous. 
> 
> 
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Re: N.J. public transit employee fired for blasphemy

Response of the audience is relevant in fighting words and defamation,  
no?

Relevance does not always equal control.
Yelling "fire" in a crowded theater is audience mediated, no?


Sent from Steve Jamar's iPhone

On Sep 16, 2010, at 3:24 PM, "Brownstein, Alan" > wrote:


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

r

RE: N.J. public transit employee fired for blasphemy

Eric is certainly correct that the First amendment protects the expression of 
ideas -- even if they have the tendency to make audience members so angry that 
will react violently to the speech. European countries are far less protective 
of speech. 

The connection between other kinds of speech and criminal conduct can get more 
complicated and can't be fully captured by the idea of incitement. But that's 
another topic.

Alan



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, September 16, 2010 11:34 AM
To: Law & Religion issues for Law Academics
Subject: RE: N.J. public transit employee fired for blasphemy



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.

RE: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Ira (Chip) Lupu

I'm surprised no one is talking about (speech) market failure.  False cries of 
fire in a crowded theater, incitements of your audience to imminent lawless 
action, and face-to-face fighting words are classic examples of likely market 
failure.  In the Terry Jones example, the market was producing enormous volumes 
of speech to the effect of "this guy's being a bigoted jerk; this is not the 
way most Americans think about Islam."  If violence erupted overseas in 
response to a Koran burning, it couldn't have been because the market had no 
competing ideas in it, or because there wasn't time for those ideas to be 
expressed.

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Thu, 16 Sep 2010 12:33:00 -0700
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan" 
>)
>Subject: RE:  N.J. public transit employee fired for blasphemy  
>To: Law & Religion issues for Law Academics 
>
>Eric is certainly correct that the First amendment protects the expression of 
>ideas -- even if they have the tendency to make audience members so angry that 
>will react violently to the speech. European countries are far less protective 
>of speech. 
>
>The connection between other kinds of speech and criminal conduct can get more 
>complicated and can't be fully captured by the idea of incitement. But that's 
>another topic.
>
>Alan
>
>
>
>-Original Message-
>From: religionlaw-boun...@lists.ucla.edu 
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
>Sent: Thursday, September 16, 2010 11:34 AM
>To: Law & Religion issues for Law Academics
>Subject: RE: N.J. public transit employee fired for blasphemy
>
>
>
>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
>
>
>Pa

Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Sanford Levinson

I'll bite: the argument against prohibition is prudential, ie, the social costs 
are too high (as with drugs and, argably, guns), not because there is a 
constititional right to drink or, even after Heller, possess a habdgun outside 
one's home.

Sandy

From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Thu Sep 16 14:26:10 2010
Subject: Re: N.J. public transit employee fired for blasphemy

Many thousands of deaths predictably result from the consumption of alcohol by 
persons who own motor vehicles.  All bars and taverns should therefore be 
closed forthwith.

Art Spitzer

In a message dated 9/16/10 3:07:59 PM, mfailin...@gw.hamline.edu writes:

I am not sure I would not stop the Qur'an burning if I were quite convinced 
even one death would result from suppressing it, even if the "national 
security" rationale is more uncertain and nebulous.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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 
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RE: N.J. public transit employee fired for blasphemy


Maybe it means that although we have a globalized market in goods, we don't 
have a globalized market in speech?  How many Kashmiris watch Anderson Cooper?



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu]
Sent: Thursday, September 16, 2010 3:41 PM
To: Law & Religion issues for Law Academics
Subject: RE:  N.J. public transit employee fired for blasphemy

I'm surprised no one is talking about (speech) market failure.  False cries of 
fire in a crowded theater, incitements of your audience to imminent lawless 
action, and face-to-face fighting words are classic examples of likely market 
failure.  In the Terry Jones example, the market was producing enormous volumes 
of speech to the effect of "this guy's being a bigoted jerk; this is not the 
way most Americans think about Islam."  If violence erupted overseas in 
response to a Koran burning, it couldn't have been because the market had no 
competing ideas in it, or because there wasn't time for those ideas to be 
expressed.

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Thu, 16 Sep 2010 12:33:00 -0700
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan" 
>)
>Subject: RE:  N.J. public transit employee fired for blasphemy
>To: Law & Religion issues for Law Academics 
>
>Eric is certainly correct that the First amendment protects the expression of 
>ideas -- even if they have the tendency to make audience members so angry that 
>will react violently to the speech. European countries are far less protective 
>of speech.
>
>The connection between other kinds of speech and criminal conduct can get more 
>complicated and can't be fully captured by the idea of incitement. But that's 
>another topic.
>
>Alan
>
>
>
>-Original Message-
>From: religionlaw-boun...@lists.ucla.edu 
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
>Sent: Thursday, September 16, 2010 11:34 AM
>To: Law & Religion issues for Law Academics
>Subject: RE: N.J. public transit employee fired for blasphemy
>
>
>
>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

RE: N.J. public transit employee fired for blasphemy

   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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, September 16, 2010 12:24 PM
To: Law & Religion issues for Law Academics
Cc: religionlaw@lists.ucla.edu
Subject: Re: N.J. public transit employee fired for blasphemy

This case is easy if one accepts the legitimacy of regulating and in some 
instances curtailing hate speech.

I know Eugene does not.

Sent from Steve Jamar's iPhone
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread ArtSpitzer

Sandy,

I agree.   I should have made my point more clearly, which is that many 
people (like the poster to whom I was responding) seem ready to abandon freedom 
of speech, and other civil liberties, at the thought of "even one death," 
while even thousands of deaths don't cause them to consider prohibiting 
recreational drinking, or 70-mph speed limits, or a host of other social 
behaviors that sometimes cause deaths.

Putting the Constitution entirely aside, doesn't free speech have as much 
social value as a roadside tavern?   Perhaps we should just think of it as a 
risky social behavior -- then we could more easily tolerate the deaths that 
it causes from time to time.   ;-)

Art Spitzer

In a message dated 9/16/10 3:49:55 PM, slevin...@law.utexas.edu writes:

> I'll bite: the argument against prohibition is prudential, ie, the social 
> costs are too high (as with drugs and, argably, guns), not because there 
> is a constititional right to drink or, even after Heller, possess a habdgun 
> outside one's home.
> 
> Sandy
> 
___
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Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Sanford Levinson

I basically agree with Art. As Dworkin argues, it is the very meaning of 
"taking rights seriously" that one is willing to accept very real costs (which 
go beyond simply the cost, however real, of "feeling demeaned" or "insulted"). 
My point was simply that the very likely costs of allowing the burning of 
Korans are considerably higher than those of allowing the burning of flags or, 
to take a non-random example, the costs of allowing truly awful and despicable 
people to picket the funerals of soldiers).

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Thu Sep 16 15:35:13 2010
Subject: Re: N.J. public transit employee fired for blasphemy

Sandy,

I agree.  I should have made my point more clearly, which is that many people 
(like the poster to whom I was responding) seem ready to abandon freedom of 
speech, and other civil liberties, at the thought of "even one death," while 
even thousands of deaths don't cause them to consider prohibiting recreational 
drinking, or 70-mph speed limits, or a host of other social behaviors that 
sometimes cause deaths.

Putting the Constitution entirely aside, doesn't free speech have as much 
social value as a roadside tavern?  Perhaps we should just think of it as a 
risky social behavior -- then we could more easily tolerate the deaths that it 
causes from time to time.  ;-)

Art Spitzer

In a message dated 9/16/10 3:49:55 PM, slevin...@law.utexas.edu writes:

I'll bite: the argument against prohibition is prudential, ie, the social costs 
are too high (as with drugs and, argably, guns), not because there is a 
constititional right to drink or, even after Heller, possess a habdgun outside 
one's home.

Sandy


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RE: N.J. public transit employee fired for blasphemy


If I could add a hypo to Eugene's question:

Should the families of the people who died in the Kashmir rioting (or the 
Catholic school that was firebombed) be able to seek redress from Pastor Jones 
for tort liability?  

If so, on what basis?

Would it matter whether Pastor Jones had ever heard of Kashmir?


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, September 16, 2010 4:34 PM
To: Law & Religion issues for Law Academics
Subject: RE: N.J. public transit employee fired for blasphemy

   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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, September 16, 2010 12:24 PM
To: Law & Religion issues for Law Academics
Cc: religionlaw@lists.ucla.edu
Subject: Re: N.J. public transit employee fired for blasphemy

This case is easy if one accepts the legitimacy of regulating and in some 
instances curtailing hate speech.

I know Eugene does not.

Sent from Steve Jamar's iPhone
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Re: N.J. public transit employee fired for blasphemy

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.



Sent from Steve Jamar's iPhone

On Sep 16, 2010, at 4:34 PM, "Volokh, Eugene"   
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 s 
how 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 defini 
tion out on the table, so we can figure just what else besides burni 
ng the Koran would be punishable?  (Would it, for instance, allow pe 
ople to be imprisoned for published the Mohammed cartoons?  For argu 
ing that Catholicism is a diabolical religion, or for that matter a  
harmful one?)




   Eugene



From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
boun...@lists.ucla.edu] On Behalf Of Steven Jamar

Sent: Thursday, September 16, 2010 12:24 PM
To: Law & Religion issues for Law Academics
Cc: religionlaw@lists.ucla.edu
Subject: Re: N.J. public transit employee fired for blasphemy



This case is easy if one accepts the legitimacy of regulating and in  
some instances curtailing hate speech.




I know Eugene does not.


Sent from Steve Jamar's iPhone

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Re: N.J. public transit employee fired for blasphemy

Art, I guess we should not make driving intoxicated illegal under your  
theory. Or do you mean to suggest we don't go far enough already?


Many can play the absurdist game. From many sides.

Sent from Steve Jamar's iPhone

On Sep 16, 2010, at 4:35 PM, artspit...@aol.com wrote:


Sandy,

I agree.  I should have made my point more clearly, which is that  
many people (like the poster to whom I was responding) seem ready to  
abandon freedom of speech, and other civil liberties, at the thought  
of "even one death," while even thousands of deaths don't cause them  
to consider prohibiting recreational drinking, or 70-mph speed  
limits, or a host of other social behaviors that sometimes cause  
deaths.


Putting the Constitution entirely aside, doesn't free speech have as  
much social value as a roadside tavern?  Perhaps we should just  
think of it as a risky social behavior -- then we could more easily  
tolerate the deaths that it causes from time to time.  ;-)


Art Spitzer

In a message dated 9/16/10 3:49:55 PM, slevin...@law.utexas.edu  
writes:


I'll bite: the argument against prohibition is prudential, ie, the  
social costs are too high (as with drugs and, argably, guns), not  
because there is a constititional right to drink or, even after  
Heller, possess a habdgun outside one's home.


Sandy



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Re: N.J. public transit employee fired for blasphemy


Not every camel's nose under the tent leads to the collapse of the tent.

Sent from Steve Jamar's iPhone

On Sep 16, 2010, at 4:43 PM, Sanford Levinson  
 wrote:


I basically agree with Art. As Dworkin argues, it is the very  
meaning of "taking rights seriously" that one is willing to accept  
very real costs (which go beyond simply the cost, however real, of  
"feeling demeaned" or "insulted"). My point was simply that the very  
likely costs of allowing the burning of Korans are considerably  
higher than those of allowing the burning of flags or, to take a non- 
random example, the costs of allowing truly awful and despicable  
people to picket the funerals of soldiers).


Sandy

From: religionlaw-boun...@lists.ucla.edu >

To: religionlaw@lists.ucla.edu 
Sent: Thu Sep 16 15:35:13 2010
Subject: Re: N.J. public transit employee fired for blasphemy
Sandy,

I agree.  I should have made my point more clearly, which is that  
many people (like the poster to whom I was responding) seem ready to  
abandon freedom of speech, and other civil liberties, at the thought  
of "even one death," while even thousands of deaths don't cause them  
to consider prohibiting recreational drinking, or 70-mph speed  
limits, or a host of other social behaviors that sometimes cause  
deaths.


Putting the Constitution entirely aside, doesn't free speech have as  
much social value as a roadside tavern?  Perhaps we should just  
think of it as a risky social behavior -- then we could more easily  
tolerate the deaths that it causes from time to time.  ;-)


Art Spitzer

In a message dated 9/16/10 3:49:55 PM, slevin...@law.utexas.edu  
writes:


I'll bite: the argument against prohibition is prudential, ie, the  
social costs are too high (as with drugs and, argably, guns), not  
because there is a constititional right to drink or, even after  
Heller, possess a habdgun outside one's home.


Sandy



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Re: Justice Breyer's comments

2010-09-16 Thread Ann Althouse

To my ear, “in a sense, yes. In a sense, no” is Justice Breyer speaking in a 
characteristically intellectual style that the elites in his environment find 
charming and endlessly thoughtful. I hear it that way myself. It's as if 
Stephanopoulos is a novice in law, and Justice Breyer is giving him credit for 
asking a good question — as a novice, of course — and then undertaking, in a 
stately and elegant way, to draw him — and the TV audience — along on a journey 
where they will see how exquisitely subtle law truly is. 

Ann

On Sep 16, 2010, at 1:11 PM, Volokh, Eugene wrote:

>According to 
> http://newsbusters.org/blogs/scott-whitlock/2010/09/14/george-stephanopoulos-should-threat-koran-burning-make-us-rethink-fi#ixzz0zZkDHzwW,
>  here’s how the exchange went:
> 
>  
> 
> STEPHANOPOULOS: You know, when we spoke several years ago, you talked about 
> how the process of globalization was changing our understanding of the law. 
> When you think about the internet and when you think about the possibility 
> that, you know, a pastor in Florida with a flock of 30, can threaten to burn 
> the Koran and that leads to riots and killings in Afghanistan, does that pose 
> a challenge to the First Amendment, to how you interpret it? Does it change 
> the nature of what we can allow and protect?
> 
> BREYER: Well, in a sense, yes. In a sense, no. People can express their views 
> in debate. No matter how awful those views are. In debate. A conversation. 
> People exchanging ideas. That's the model. So that, in fact, we are better 
> informed when we cast that ballot. Those core values remain. How they apply 
> can-
> 
> STEPHANOPOULOS: The conversation is now global.
> 
> BREYER: Indeed. And you can say, with the internet, you can say this. Holmes 
> said, it doesn't mean you can shout fire in a crowded theater. Well, what is 
> it? Why? Well people will be trampled to death. What is the crowded theater 
> today? What is-
> 
> STEPHANOPOULOS: That's exactly my question.
> 
> BREYER: Yes. Well, perhaps that will be answered by- if it's answered, by our 
> court. It will be answered over time, in a series of cases, which force 
> people to think carefully. That's the virtue of cases.
> 
>  
> 
>The “in a sense, yes. In a sense, no” line suggests to me that 
> Justice Breyer is indeed trying to suggest that modern conditions – including 
> the possibility that speech here can lead to killings abroad – may in some 
> measure “change the nature of what we can allow and protect.”  Otherwise, why 
> say the “in a sense, yes” part?
> 
>  
> 
>Eugene
> 
>  
> 
>  
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ann Althouse
> Sent: Thursday, September 16, 2010 9:56 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: N.J. public transit employee fired for blasphemy
> 
>  
> 
> I think Breyer was attempting to demonstrate his approach to constitutional 
> law interpretation — thinking out loud to show how he would work through the 
> material in an idealized, judgely fashion. He's absorbed in the subject of 
> case-by-case adjudication and how "carefully" everything needs to be thought 
> about. It was very ivory tower of him not to anticipate how his statement 
> would play in the press and with laypersons who jump to read it as tipping 
> his hand on what he'd really decide about free speech and Koran-burning.
> 
>  
> 
> Ann
> 
>  
> 
> On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com wrote:
> 
> 
> 
> 
> How does burning the Koran differ from burning the flag?  I thought we had 
> been through this debate before and find Justice Breyer's comments strange, 
> to say the least.
> 
>  
> 
> Marci
> 
>  
> 
>  
> 
> In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, 
> con...@indiana.edu writes:
> 
> 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
> 
>  
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscri

Re: N.J. public transit employee fired for blasphemy

2010-09-16 Thread Lisa A. Runquist

 Well, so if he thought he was yelling fire because there really was a 
fire, then is he innocent even if there wasn't a fire?  :-)


On 9/16/2010 2:11 PM, Steven Jamar wrote:
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.



Sent from Steve Jamar's iPhone

On Sep 16, 2010, at 4:34 PM, "Volokh, Eugene" > 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

*From:* religionlaw-boun...@lists.ucla.edu 
 
[mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Steven Jamar

*Sent:* Thursday, September 16, 2010 12:24 PM
*To:* Law & Religion issues for Law Academics
*Cc:* religionlaw@lists.ucla.edu 
*Subject:* Re: N.J. public transit employee fired for blasphemy

This case is easy if one accepts the legitimacy of regulating and in 
some instances curtailing hate speech.


I know Eugene does not.




--
Lisa A. Runquist
Runquist&  Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
l...@runquist.com
http://www.runquist.com

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RE: N.J. public transit employee fired for blasphemy