Muralist Dan Fontes “is seeking $400,000 in damages from the current and former operators of Autocom Nissan at Broadway and 27th Streets in Oakland.” His lawyer “argues that when the dealership painted over the mural in 2013, they violated the U.S. Visual Artist Rights Act (VARA), a law dating back to 1990. Among other things, the law requires a building owner to give an artist a 90-day notice before the mural is removed or painted over, so the artist can take back or at least document the work.” The mural itself predates VARA by three years — it was painted in 1987 — but the lawyer is taking the position that the 1990 law stripped rights from owners of existing mural works that had not changed ownership before the law’s passage, and reassigned them to original artists. [KQED, Contra Costa Times] We’ve covered VARA and the misnamed concept of “moral rights” before.
- “‘Game Of Thrones’ Fan Demands Trial By Combat” [Lowering the Bar]
- One way to lose your city job in NYC: “An administrative-law judge then agreed to his firing, noting [the deceased] didn’t show up at his hearing.” [New York Post]
- International Trade Commission asked to curb improper “imports,” i.e. transmissions, of data into the US, and yes, that could create quite a precedent [WSJ, R Street Institute, Niskanen Center, FreedomWorks letter] More: K. William Watson, Cato;
- Sixth Circuit panel explains in cement case why some towns (e.g. St. Marys) have no apostrophes, others do [St. Marys Cement v. EPA opinion via Institute for Justice “Short Circuit“]
- Proposed ban on export of some fine art from Germany stirs discontent [New York Times via Tyler Cowen]
- With its SEO budget already committed to “Oliver Wendell Holmes = doofus” keywords and the like, Volokh Conspiracy must rely on organic content to boost Brazilian apartment seeker clicks [David Kopel]
- But federal law forbids paying them, so the city won’t do that: “2 immigrants in U.S. illegally are named to Huntington Park commissions” [L.A. Times]
Accreditation rules force museums to keep troves of great art in storage out of public view. Why? [Virginia Postrel, Bloomberg View]
Much can and will be said about the attack in Texas and its aftermath, but here is what came to mind for me. On current trends, many outspoken Americans will soon be living in hiding or under guard. To me that’s a bigger story than whether I find their views unsavory. And of course it’s going to happen to many whose views I don’t find at all unsavory. That’s the lesson of Salman Rushdie and his translators, the Danish cartoonists etc. And even when many respectables are living in hiding, under guard, or dead, a large bloc of polite opinion will still look the other way. Something is wrong in that.
As for what can be done, as a writer, I naturally think in terms of what writers and editors can do. The PEN gala award was a good example of a positive step that deserves our applause. It would be a positive step if Yale University Press had printed the (very tame) Danish Mohammed cartoons when it published a book on that episode. It would be a positive step if CNN and other networks did not black out or crop out even very tame cartoons when covering the Charlie Hebdo massacre, the Danish Jyllands-Posten episode, or the winning Garland contest entry. When there is no solidarity, the minority of publications that remain uncowed stick out more, and so are in more danger.
The threats are nothing new: mobs ransacked newspaper offices and lynched editors in the Nineteenth Century, 21 died when unionists bombed the L.A. Times in 1910, and so forth. Somehow it didn’t shut them up, and I hope we have the resolve not to let it shut us up either.
The unsuccessful attack on an exhibition of Mohammed cartoons in Garland, Texas, near Dallas, is the most recent attempted mass murder on American soil endeavoring to silence expression bothersome to radical Islamists; it is unlikely to be the last. Some thoughts assembled from Twitter:
— Walter Olson (@walterolson) May 4, 2015
The would-be terrorists in Garland fell for one of the classic blunders: Never assume that you’ve outgunned an art show in Texas.
— Daniel Foster (@DanFosterType) May 4, 2015
One early, ill-considered reaction from the legacy media:
— Walter Olson (@walterolson) May 4, 2015
— Walter Olson (@walterolson) May 4, 2015
But the legacy media coverage didn’t necessarily improve after a day for reporting and reflection:
— Walter Olson (@walterolson) May 4, 2015
— Tom Garrett (@TheAxisOfEgo) May 4, 2015
As commentators have pointed out, the narrow “fighting words” exception in today’s First Amendment law is generally reserved for (at most) face-to-face insults likely to provoke an on-the-spot brawl, not to derogatory speech more generally:
Calling controversial speech "fighting words" means any speech may be banned if people threaten violence. See http://t.co/7Hs3nT8GXP
— Ari Armstrong (@ariarmstrong) May 4, 2015
not hecklers veto, but murderer's veto. is this how hard-won rights over the enlightenment end? https://t.co/5RiRyDJTM6
— Razib Khan (@razibkhan) May 4, 2015
Old: "I'm all for property rights, but…" New: "I'm all for free speech rights, but.." Next: "I'm all for no soldiers in your home, but…"
— Kevin W. Glass (@KevinWGlass) May 4, 2015
Echoes of the PEN awards controversy going on at the same time:
— David Loy (@DavidLoySD) May 4, 2015
On which memorably, also, Nick Cohen in the Spectator.
— Walter Olson (@walterolson) May 5, 2015
More: Ken White skewers that awful McClatchy piece with its misunderstandings about “fighting words.” And don’t miss Michael Moynihan on those who would “make a bold stand against the nonexistent racism of 12 dead journalists by refusing to clap for the one who got away,” or related and very good Caleb Crain.
And very appropriately, too. But at least six literati, including Michael Ondaatje, Francine Prose, and novelist and New Yorker contributor Teju Cole, have withdrawn from next month’s gala to express distaste for the murdered cartoonists, a gesture about which Matt Welch has a few comments. More: New York Times, AP. And from fatwa target Salman Rushdie, who knows a thing or two about this topic:
“If PEN as a free speech organization can’t defend and celebrate people who have been murdered for drawing pictures, then frankly the organization is not worth the name,” Mr. Rushdie said. “What I would say to both Peter and Michael and the others is, I hope nobody ever comes after them.”
One of the problems with shipping all great antiquities and works of historical significance back to their lands of origin, as some demand, is becoming clearer in the Middle East, as Islamic State authorities destroy the Assyrian heritage site at Nimrud along with thousands of rare texts from the Mosul library and seemingly whatever other remains of pre-Solomonic and religiously disapproved civilizations their bulldozers and torches can reach. [New York Times]
- Boss Tweed, in legend, railing against cartoonists: “I don’t care so much what the papers write about — my constituents can’t read — but damn it, they can see pictures.” [David Boaz, Cato] “Jyllands-Posten Not Reprinting Charlie Hebdo Mohammed Cartoons Because ‘Violence Works'” [Ed Krayewski, Reason]
- “Police Scotland will thoroughly investigate any reports of offensive or criminal behaviour online and anyone found to be responsible will be robustly dealt with.” That includes TV personalities’ tweets disparaging to Glasgow [BBC, Alex Massie/Spectator, Elizabeth Nolan Brown] More: Calls mount for repeal of Australia Section 18C speech-crime law, which would ban the French magazine Charlie Hebdo if someone tried to publish it down there [Australian, Sydney Morning Herald, earlier on Andrew Bolt case]
- “Hate speech” concept got rolling when Stalin used it as weapon against democracies [Jacob Mchangama, Hoover, a while back] More on history of speechcrime: antebellum North (not just South) repressed abolitionist opinion, and how the great Macaulay erred on blasphemy law under the Raj [Sam Schulman, Weekly Standard, also a while back]
- “Campaign Finance Laws Don’t Clean Up Politics, But Do Erode Our Freedom” [George Leef, Forbes]
- In case against personal injury lawyer/legal blogger Eric Turkewitz, court rules that critical commentary about medical examiner is protected opinion [Turkewitz, Daniel Fisher/Forbes, Tim Cushing/TechDirt]
- “It is unusual for Swedish courts to hand out prison terms for art works.” [The Guardian on Dan Park case]
- Australian man arrested after loitering around campaigners of incumbent political party wearing “I’m with stupid” T-shirt [Guardian]
Jonathan Turley in the Washington Post explores at more length a point I made briefly in my TIME opinion piece: to honor the slain cartoonists of Charlie-Hebdo, we should be lifting legal constraints on what their successors tomorrow can draw and write and say, rather than, as France and other countries have been doing in recent years, bringing it under tighter legal constraint in the name of equality and the prevention of offense:
Indeed, if the French want to memorialize those killed at Charlie Hebdo, they could start by rescinding their laws criminalizing speech that insults, defames or incites hatred, discrimination or violence on the basis of religion, race, ethnicity, nationality, disability, sex or sexual orientation. These laws have been used to harass the satirical newspaper and threaten its staff for years.
The numerous court actions brought against Charlie Hebdo by religious groups (as of 2011, organizations connected with the Catholic church had taken the magazine to court 13 times, Muslim groups once) are only the beginning:
[Other] cases have been wide-ranging and bizarre. In 2008, for example, Brigitte Bardot was convicted for writing a letter to then-Interior Minister Nicolas Sarkozy about how she thought Muslims and homosexuals were ruining France. In 2011, fashion designer John Galliano was found guilty of making anti-Semitic comments against at least three people in a Paris cafe. In 2012, the government criminalized denial of the Armenian genocide (a law later overturned by the courts, but Holocaust denial remains a crime). …Last year, Interior Minister Manuel Valls moved to ban performances by comedian Dieudonné M’Bala M’Bala, declaring that he was “no longer a comedian” but was rather an “anti-Semite and racist.” It is easy to silence speakers who spew hate or obnoxious words, but censorship rarely ends with those on the margins of our society….
Recently, speech regulation in France has expanded into non-hate speech, with courts routinely intervening in matters of opinion. For example, last year, a French court fined blogger Caroline Doudet and ordered her to change a headline to reduce its prominence on Google — for her negative review of a restaurant.
Related: National Post and Jacob Gershman, WSJ Law Blog, on efforts to repeal Canada’s not-entirely-in-disuse blasphemy law; earlier here and here. And from Ireland, an urgent reason to repeal its own law of this sort: Muslim leader vows to “take legal advice if Irish publications …republish or tweet cartoons.” [Irish Times, Irish Examiner, Independent]
P.S. Graham Smith on Twitter: “What if every State represented in Paris today promised to repeal one law that restricts free speech?”
If you defend freedom of speech today, realize that “blasphemy” is its front line, in Paris and the world. …
Most of the prestige Western press dodged the running of the [Danish Mohammed] cartoons, and beneath the talk of sensitivity was often simple fear. As journalist Josh Barro noted today on Twitter, “Islamists have by and large succeeded in intimidating western media out of publishing images of Muhammad.” …
[On the modern European rise of laws against “defamation of religion” and related offenses]: One way we can honor Charb, Cabu, Wolinski, Tignous, and the others who were killed Wednesday is by lifting legal constraints on what their successors tomorrow can draw and write.
Also recommended, this thoughtful Ross Douthat column on blasphemy and religious offense. Douthat is not enthusiastic about blasphemy generally, but makes an exception for instances where it is done in defiance of grave dangers. “If a large enough group of someones is willing to kill you for saying something, then it’s something that almost certainly needs to be said … it’s precisely the violence that justifies the inflammatory content. … if publishing something might get you slaughtered and you publish it anyway, by definition you *are* striking a blow for freedom, and that’s precisely the context when you need your fellow citizens to set aside their squeamishness and rise to your defense.”
“So many of Charb’s fellow journalists have long been aware of these threats, and have said nothing,” writes Mark Hemingway in the Weekly Standard. Jytte Klausen, author of a book on the Danish cartoon episode, in Time: “Over the past five years, [the editors of Charlie-Hebdo] have been left alone standing in defense of press freedom.” And Alex Massie at The Spectator:
[The 1989 fatwa against Salman Rushdie] was a test too many people failed back then. We have learned a lot since then but in many ways we have also learned nothing at all.
In 2012, Rushdie wondered if any publisher would have the courage to endorse The Satanic Verses if it were written then. To ask the question was to sense the depressing answer. They would not.
As for the present day, CNN, NYT, AP, NBC, ABC, the BBC, Guardian, Telegraph, and the CBC, will *not* be running Charlie-Hebdo cartoons, though a number of American publications did so, including Daily Beast, Vox, and Bloomberg. No UK paper on Thursday morning runs the cartoons on its cover — though the Berliner-Zeitung in Germany publishes a full spread of them.
23 cartoonists respond [BuzzFeed]. Claire Berlinski’s firsthand account of the attack scene, and Charb’s now-famous “die standing” vow. Andrew Stuttaford at Secular Right on whether anything will now change in Europe’s slow constriction of free speech: he fears not (& Hans Bader, CEI).