Once again, a law professor has stepped up to inform us that we need to join much of Europe in attaching legal penalties to hurtful speech. This time one patient refutation comes from Michael Moynihan [Daily Beast] The idea is about as fresh and new as sleeve garters, notes Jonathan Rauch [Volokh/WaPo] Further rebuttal from Ken at Popehat and Scott Greenfield.
Canada’s infamous speech-smothering Section 13′s dead. And good riddance too. Among targets of legal action under Section 13 over the years have been well-known conservative commentators Mark Steyn and Ezra Levant [National Post and more, Brian Lilley, Wikipedia, earlier]
Life without a First Amendment: “Eleven people across UK arrested for making ‘racist or anti-religious’ comments on Facebook and Twitter about British soldier’s death” [Daily Mail (with notice: "Sorry, we are unable to accept comments for legal reasons"), more, The Lincolnite; Eugene Volokh (quoting British police: "People should stop and think about what they say on social media before making statements as the consequences could be serious")]
On a happier note, with regard to countering objectionable speech, the BBC reports that when members of the nativist English Defence League organized a gathering outside a mosque in the city of York, worshipers brought out tea and cookies and invited them inside for a chat.
Data point 2 about free speech in Britain: 11 lawyers have signed a letter in the Guardian “threatening supermarkets with immediate legal action” unless they remove from sale “lad’s mags,” men’s magazines that are anathema to feminist campaigners. “Displaying these publications in workplaces, and/or requiring staff to handle them in the course of their jobs, may amount to sex discrimination and sexual harassment contrary to the Equality Act 2010,” it says. “Similarly, exposing customers to these publications in the process of displaying them is capable of giving rise to breaches of the Equality Act.” [Guardian; Toby Young, Telegraph; ITV] Young points out that reported incidents of domestic violence have fallen quite sharply since lad’s mags became popular in the 1990s, making nonsense of claims that the publications somehow promote male aggression. For the campaigners, writes Toby Young, “this is simply about preventing men – predominantly working-class men – from buying magazines that they consider vulgar and in poor taste.”
More in comments from Bill Poser: “Here’s another: police in Wales ordered a shop-keeper to remove T-shirts saying ‘Obey our laws, respect our beliefs, or go back to your own country.’”
And from the “It Can’t Happen Here” department: “Justice Department to Hold Seminar Warning Against the Legal ‘Consequences’ of Anti-Muslim Speech.” Let’s hope there’s some reporting error here.
Anti-religious, xenophobic, and “Islamophobic” speech has already drawn prosecution in a number of cases and some in the European country wish to push the trend further [Dr. Jogchum Vrielink, University of Leuven, via Volokh]:
On the political level too some are attempting to increase the legal sensitivity for ‘Islamophobia’. Senators Fauzaya Talhaoui and Bert Anciaux, for instance, introduced a draft resolution on 21 February 2013, aimed at the ‘the fight against Islamophobia’. Following the definition offered by the Runnymede Trust, the Senators understand ‘Islamophobia’ to entail the ‘strong presence’ of any of eight elements, including: ‘Islam as monolithic and static’; ‘Islam as inferior to the West and as barbaric, irrational and sexist’; and ‘Islam as violent, providing support to terrorism, and actively involved in a clash of civilisations’. Such ‘Islamophobic’ ideas, Talhaoui and Anciaux contend, “incite to discrimination and racism, and require unequivocal condemnation and judicial prosecution”. They argue that the police and that the office of the public prosecutor should be instructed to treat the issue as an absolute priority.
The Runnymede Trust, incidentally, “is the UK’s leading independent race equality think tank. We generate intelligence for a multi-ethnic Britain through research, network building, leading debate, and policy engagement.”
Meanwhile, in blasphemy prosecutions elsewhere, a court in Turkey has convicted composer and pianist Fazil Say of committing blasphemy on Twitter [Guardian] And Islamists are inciting prosecution and worse for atheist bloggers in Bangladesh [Volokh, Christian Post]
A modest proposal for freshman orientation [Julian Sanchez] Separately, Greg Lukianoff is out with his much-awaited new book, “Unlearning Liberty: Campus Censorship and the End of American Debate” [Ken at Popehat, New York Times]. And a speech code at SUNY New Paltz warns “all members of the campus community” not to “discuss” material that “shows…aversion” to persons over 30 [Volokh]
Yet another law professor, this time Harvard’s Noah Feldman, suggests suspending First Amendment protection to placate offense [Newsday, Volokh, Greenfield] As background, in Britain, “Channel 4 has cited concerns over security as the reason for cancelling a planned screening at its headquarters this week of a documentary film questioning the origins of Islam.” [Guardian via Volokh; Michael Totten, "The Terrorists' Veto, City Journal] Notes Ken at Popehat: “The context is one in which the decision to take offense is a political act.”
Ken has also stayed on top of this issue in other posts, noting, for example, that the Holocaust-denial laws already accepted in many Western countries pave the way for further restrictions on speech; that Greece has lately moved against mild religious satire; and that Great Britain is electing to unleash criminal-law enforcement against a broader range of Internet comment trollery.
Earlier on Eric Posner here and here; on Jeremy Waldron here, here, and here; on Peter Spiro here; Volokh on Spiro and Harold Koh here.
Hans Bader on the curious insistence on blaming the Benghazi attack on a YouTube video [CEI] Greg Lukianoff responds to Eric Posner on blasphemy laws [HuffPo, earlier] “Uh oh. The Atlantic gets in the game of trolling the First Amendment.” [Pascal-Emmanuel Gobry on this by Garrett Epps, earlier on Epps]
P.S. Ken at Popehat rates the President’s U.N. speech mostly good, with a few lapses. “It’s time for Canada to repeal its prohibition on blasphemous libel.” [Derek From, Canadian Constitution Foundation Justice Report] And in the “Pastitsios” affair, advocates of free speech in Greece are protesting the blasphemy arrest of a 27 year old man over his website, which makes fun of a well-known deceased Orthodox monk. [BoingBoing]
“Earlier in the week, YouTube said it found that the video was “clearly within” its guidelines.” [L.A. Times, Washington Post, Jesse Walker, Matt Welch, Paul Alan Levy; previously on calls to suppress putative "hate speech" in response to riots in the Middle East and elsewhere] Per news accounts, YouTube chose to block access to the video in certain Arab countries where outbreaks of violence have occurred. More: “Google rejects White House request to pull Mohammad film clip” [Reuters]
Meanwhile, L.A. County sheriffs swoop down to round up the alleged filmmaker for questioning, supposedly for probation violations. Ann Althouse has a thing or two to say about that. But see defense lawyer and former prosecutor Ken at Popehat (viewing arrest as not unusual if a defendant in serious fraud case involving aliases is observed to violate probation terms by doing business under alias)(more).
Peter Spiro of Temple, one of the more prominent international-law specialists in the legal academy, claims that the killing of U.S. ambassador Chris Stevens in Libya, following demonstrations over a video produced by private U.S. citizens denouncing Mohammed, “bolsters” the case for free-speech laws by adding a foreign-policy rationale, and warns that on matters of unfettered speech (“The First Amendment? Call me a relativist”) “international law is going … in a different direction than we are.” [Opinio Juris] (Later news reports suggest that the Benghazi attack, though taking advantage of a mob demonstration for cover, was in fact a well-planned paramilitary operation.) Meanwhile, a religious-studies professor has proposed arrest of the offending filmmaker, even though “If there is anyone who values free speech, it is a tenured professor!” [Anthea Butler (U. Penn.), USA Today] And here’s the background climate of opinion at the United Nations. More: Ken White/Salon, and Alana Goodman/Commentary on the elusive “Sam Bacile.”
More: Eugene Volokh traces how Prof. Spiro and Prof. Harold Koh — now top State Department legal adviser — propose to use international law to adjust First Amendment norms toward those prevailing elsewhere.
Further from Volokh (“I think such suppression would likely lead to more riots and more deaths, not less.”) and more (modernist views often vulnerable to being characterized as an “intentional effort to denigrate the religious beliefs of others”), and Ken at Popehat (“We can’t cave on this in the face of demands that we censor. We can’t. Today it’s bigoted videos. Tomorrow it’s any representation whatsoever of Mohammed.”)
In Britain, which has hate-speech laws, police investigate a racially derogatory Tweet. [Telegraph]