The Volokh Conspiracy

So holds Dixon v. University of Toledo (N.D. Ohio Feb, 6, 2012). (I blogged about this case when it was filed.) A few thoughts:

(1) Some of the analysis seems limited to high-level “policymaking” employees, such as a university Associate Vice President.

(2) But some of the argument suggests that any time any government manager with hiring and firing authority — or even with substantial input into hiring and firing decisions — speaks out in opposition to civil rights laws protecting gays, the government may fire the manager on the grounds that the speech (a) “could disrupt the … [d]epartment by making homosexual employees uncomfortable or disgruntled,” (b) might lead “homosexual prospective employees [to] reconsider applications,” and (c) might “lead to challenges to her personnel decisions.”

(3) This in turn highlights the danger to government managerial employees who want to participate in, for instance, campaigns opposing same-sex marriage or proposed laws banning sexual orientation discrimination. If you’re such an employee, you’d be wise to keep your mouth shut on such matters, whether it comes to letters to the editor, to blog posts, to yard signs, to campaign donations, or to signatures on initiative or referendum petitions (in states that disclose such signatures). After all, any of these might be noticed by people who will publicize what you said or did, and who will directly or indirectly inform your supervisors about it.

Maybe that’s an acceptable price to pay for effective functioning of government workplaces — the Pickering test is generally not very speech-protective, on this subject or others — and maybe it’s not. But in any case that seems to be where things are headed, at least in many such workplaces.

As Associate Vice President for Human Resources, Plaintiff was an “appointing authority” at the University, which means she had the power to hire and fire employees…. The University had an Equal Opportunity Policy which prohibited discrimination based on sexual orientation. Further, the University has taken explicit steps to reach out to homosexuals and make them feel welcome.

On April 4, 2008, the Toledo Free Press ran an opinion by Michael Miller which Plaintiff felt compared the modern movement toward increased tolerance and rights for homosexuals to the historical struggles of the African–American civil rights movement and which noted that one University of Toledo campus offered domestic partner benefits and the other did not. Due to her religious conviction, Plaintiff, an African–American woman, felt the need to respond. The Toledo Free Press ran her response on April 18, 2008. In it she objected to the idea that homosexuals are “civil rights victims,” asserted that homosexuality is purely a choice, and noted that the inter-campus benefits disparities involved all employees, not just those interested in domestic partner benefits. Plaintiff identified herself as “an alumnus of the University of Toledo’s Graduate School, an employee and business owner” and signed only her name, though she used her University photograph. She did not mention her title or duties within the University…. Because of the response to her article, Plaintiff was immediately placed on administrative leave….

Continue reading ‘Government Employer Free to Fire Human Resources Officials Who Publicly Criticize the Propriety of Gay Rights Laws’ »

Here’s another London School of Economics Students’ Union resolution:

Union believes …
3. Anti-Semitism includes but is not limited to:
* Denying, trivializing and misconstruing the Nazi Holocaust. This includes denying the fact, scope, method, or motivation for the genocide of 6 million Jews at the hands of the National Socialist regime. It also includes the accusation that Jews or the state of Israel have fabricated, cause or over-exaggerated the Holocaust.
* Calling for, aiding or justifying the killing or harming of Jews for the sake of their Jewish religion, ethnicity or identity.
* Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such. This includes accusations of Jewish control of the world, government, media, as well as blaming Jews for imagined and real atrocities.
* Questioning the loyalty of Jews to their nation of citizenship simply on the basis of their Jewish identity. This includes claims that Jews as a collective or a community subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship.
* Claiming that Jews do not have the same rights as any other ethnic group. This includes the right to free speech, free practice of religion, free use of native languages (i.e. Hebrew, Yiddish, Ladino, etc.) and self-determination.
* Equating Jews or maliciously equating Jewish Foundations of the state of Israel with the Nazi Regime. This includes, but is not limited to equating Zionism with Nazism and claiming that ‘History is repeating itself’ with regards to the Nazi Holocaust and the state of Israel. This also includes using Jewish symbols and religious imagery alongside Nazi symbols and imagery. This does not necessarily include analogies between historical events.
* Using Jewish symbols to antagonize, harass, and intimidate Jewish students.
4. Legitimate criticism of the Israeli government and its actions are not inherently anti-Semitic.

Union resolves …
2. To ensure all anti-Semitic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the school and, if appropriate or requested by the victim, the Metropolitan Police.

Now apparently LSE students are supposed to be “dealt with swiftly and effectively” for analogizing Israeli conduct to the Holocaust, or claiming that Israel shouldn’t exist (since I take it that this would be seen as denying Jews’ “self-determination”), “blaming Jews for imagined and real atrocities,” “using Jewish symbols to antagonize … Jewish students,” or claiming that Jews are generally more loyal to Israel than to their country of citizenship. As it happens, I think that such speech is generally bunk. But the point of Western universities, it seems to me, is to be places where bunk can be debunked — not “dealt with swiftly and effectively” through administrative sanctions (or, “if appropriate or requested by the victim,” by the police), including when it isn’t even said in university programs but “online” “by LSE students.”

That’s what the London School of Economics Students’ Union — as best I can tell, the British equivalent of a student government here in the U.S. — resolved, with Islamophobia defined to include “hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred.” Here’s the resolution:

Union believes
1. In the right to criticise religion,
2. In freedom of speech and thought,
3. It has a responsibility to protect its members from hate crime and hate speech,
4. Debate on religious matters should not be limited by what may be offensive to any particular religion, but the deliberate and persistent targeting of one religious group about any issue with the intent or effect of being Islamophobic (‘Islamophobia’ as defined below) will not be tolerated.
5. That Islamophobia is a form of anti-Islamic racism.

Union resolves
1. To define Islamophobia as “a form of racism expressed through the hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred”, …
4. To ensure that all Islamophobic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the School ….

Here’s the problem: What does it mean to “believe[]” “in freedom of speech,” if you can’t express your view that the Koran is a manual of hatred, or that Islam — or Catholicism or Scientology or atheism or any other belief system — should be hated or feared? How you can have a sensible “[d]ebate on religious matters” about the worth or dangerousness of these belief systems if the view that some of the systems are evil is “dealt with swiftly and effectively” by the School and its student government?

The New York Daily News reports:

A bigot named their WiFi signal “F— All Jews and N—-” — and now cops are investigating.

The hateful signal I.D. popped up on the iPhone of a 28-year-old mom inside a Teaneck, N.J. recreation center, where her 3-year-old daughter was attending dance class….

The Teaneck Police Department Juvenile Bureau and the Bergen County Prosecutor’s Office Computer Crime Unit are investigating it as a “possible bias crime,” Wilson said.

It should go without saying that the WiFi guy is scum, but scum have First Amendment rights, too. He has the First Amendment right to put up a sign in his window saying “Fuck All Jews and Niggers” — or burn a flag on his front lawn, or display blasphemous images where others might see them — though such speech would be understandably offensive to neighbors and passersby. Likewise, he has the right to attach such a name to his WiFi network, even though the name would be visible to neighboring WiFi users.

UPDATE: A commenter suggested that “fuck” could be banned as an “obscenity.” Not so, said the Court in Cohen v. California (1971) (holding that the wearing of a “Fuck the Draft” jacket may not be banned on such grounds). Another suggested that the words are punishable “fighting words.” But as cases such as Cohen and Gooding v. Wilson (1972) have made clear, speech can be punished as fighting words only if it is reasonably likely to lead to an immediate attack by a personally offended listener against the speaker; no such attack is likely when the speaker is not physically present, and can’t be readily identified even by those who want to immediately go and seek him out.

Another commenter suggested that the FCC has extra authority to regulate such speech, under FCC v. Pacifica Foundation (1978). I don’t think so. First, though the Pacifica decision is quite vague, it focused on traditional radio broadcasting and I doubt that it would be applicable to wireless network names (even if it is survives the Court’s reconsideration of the issue in the pending FCC v. Fox Television Stations case). Second, if the objection is to the racism and anti-Semitism and not just the word “fuck,” that would run afoul of the Pacifica plurality’s acknowledgment that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection”; viewpoint-neutral restrictions on vulgarity on radio broadcasting are constitutionally permissible, the Court held, but viewpoint-based bans on bigoted speech would not be. And, third and most important, Pacifica rested heavily on the FCC’s special authority in the area — and, to my knowledge, there is no FCC regulation restricting vulgar WiFi network names, and in any event that does not seem to be the legal avenue that the local police department seems to be pursuing.

Soeren Kern (Hudson New York) reports:

An Austrian appellate court has upheld the conviction of Elisabeth Sabaditsch-Wolff, a Viennese housewife and anti-Jihad activist, for “denigrating religious beliefs” after giving a series of seminars about the dangers of radical Islam.

The December 20 ruling shows that while Judaism and Christianity can be disparaged with impunity in postmodern multicultural Austria, speaking the truth about Islam is subject to swift and hefty legal penalties.

Although the case has major implications for freedom of speech in Austria, as well as in Europe as a whole, it has received virtually no press coverage in the American mainstream media.

Sabaditsch-Wolff’s Kafkaesque legal problems began in November 2009, when she presented a three-part seminar about Islam to the Freedom Education Institute, a political academy linked to the Austrian Freedom Party.

A glossy socialist weekly magazine, NEWS — all in capital letters — planted a journalist in the audience to secretly record the first two lectures. Lawyers for the leftwing publication then handed the transcripts over to the Viennese public prosecutor’s office as evidence of hate speech against Islam, according to Section 283 of the Austrian Criminal Code (Strafgesetzbuch, StGB). Formal charges against Sabaditsch-Wolff were filed in September 2010; and her bench trial, presided on by one multicultural judge and no jury, began November 23, 2010….

[At trial,] Sabaditsch-Wolff was convicted of … “denigration of religious beliefs of a legally recognized religion,” according to Section 188 of the Austrian Criminal Code.

The judge ruled that Sabaditsch-Wolff committed a crime by stating in her seminars about Islam that the Islamic prophet Mohammed was a pedophile (Sabaditsch-Wolff’s actual words were “Mohammed had a thing for little girls.”)

The judge rationalized that Mohammed’s sexual contact with nine-year-old Aisha could not be considered pedophilia because Mohammed continued his marriage to Aisha until his death. According to this line of thinking, Mohammed had no exclusive desire for underage girls; he was also attracted to older females because Aisha was 18 years old when Mohammed died….

Sabaditsch-Wolff appealed the conviction to the Provincial Appellate Court (Oberlandesgericht Wien) in Vienna, but that appeal was rejected on December 20….

In January 2009, Susanne Winter, an Austrian politician and Member of Parliament, was convicted for the “crime” of saying that “in today’s system” the Mohammed would be considered a “child molester,” referring to his marriage to Aisha. Winter was also convicted of “incitement” for saying that Austria faces an “Islamic immigration tsunami.”

If anyone can point me to an English translation of the opinion, or an English-language news story on the subject that adds more details, or even to the German-language original of the appellate decision, I’d love to see it. The court says she will go to prison if the fine is not paid within the next six months. She says she will take the case to the Strasbourg-based European Court for Human Rights.

I should note that Austria has indeed tried to restrict blasphemy of Christianity at least as recently as 1985, and continued to defend such a restriction until 1993 — see this post, which links to Otto-Preminger-Institut v. Austria, the European Court of Human Rights case upholding the restriction. Elsewhere in Europe (though I realize that none of this reflects on Austria as such), a Greek court convicted a cartoonist of blasphemy in 2005 for a comic book related to Jesus, but that conviction was reversed on appeal; a Polish singer was prosecuted for insulting Christianity in 2010, but that prosecution was likewise rejected on appeal; and just this year, a Russian court banned the exhibition of a painting that alleged blasphemed Christianity.

By way of perspective, several early 1800s American cases (I know of four published opinions, Ruggles, Updegraph, Kneeland, and Murray) upheld convictions for blasphemy of Christianity, sometimes based on similar facts: People v. Ruggles (N.Y. 1811), for instance, involved a defendant who had said “Jesus Christ was a bastard and his mother must be a whore,” reasoning thus:

We stand equally in need, now as formerly, of all the moral discipline, and of those principles of virtue, which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things sacred and profane; for, to use the words of one of the greatest oracles of human wisdom, “profane scoffing doth by little and little deface the reverence for religion;” and who adds, in another place, “two principal causes have I ever known of atheism — curious controversies and profane scoffing.” Things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction, have, upon the same principle, been held indictable; and shall we form an exception in these particulars to the rest of the civilized world? No government among any of the polished nations of antiquity, and none of the institutions of modern Europe (a single and monitory case excepted), ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under the sanction of their tribunals the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient lawgivers and philosophers, embraced the religion of the country….

The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters.

But fortunately American free speech law has changed since then, and I’m disappointed that a European democracy such as Austria is, in the early 2000s, as intolerant of condemnation of religion — even harsh condemnation of religion — as was America in the early 1800s.

From Walker v. Jackson (EEOC Oct. 6, 2011):

On December 1, 2011 [sic], Complainant filed a formal EEO complaint alleging that he was subjected to harassment and reprisal on the basis of his religious beliefs (Pentecostal). Briefly, the complaint alleged that, on November 18, 2010 [sic], Complainant was the recipient of an email from the Acting Director, sent to the NCEA [EPA's National Center for Environmental Assessment] global list-serve (which includes Complainant and all other NCEA employees), announcing an on-site celebration of a same-sex marriage of an employee which read as follows:

[Employee A] and his partner [named] are getting married this Sunday. The IO is sponsoring an informal celebration to congratulate [Employee A] on this happy event. Please feeI free to drop by the IO conference room on Thursday, October 7 at 4:30 P.M. to wish them well.

Thirteen days later, on October 18, 2010, Complainant responded to the Acting Director’s email, with a copy to the NCEA global list-serve, with the following message:

I feel your message announcing the celebration of the “union” of [Employee A] and his “Partner” was offensive and insensitive to my religious faith as a Christian. I think it is general knowledge that the Christian faith only condones “marriages” between men and women, not men and other men. As acting Office Director, I feel you could have been more “sensitive” and “neutral” with regards to this issue.

The next day, NCEA employees sent approximately 15-20 emails on the global list-serve (including Complainant) congratulating Employee A on his marriage. None of these emails specifically mentioned Complainant or his email. The record does show that two employees did email Complainant personally (not sent to the NCEA global list-serve) and expressed the opinion that Complainant’s email was insensitive because it was sent to everyone, including Employee A, rather than just to the Acting Director.

By final decision dated April 14, 2011, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. On appeal, Complainant argues that the 15 employees who copied him on the congratulatory emails despite receiving his email protesting the Acting Director’s original email were retaliating against him and harassing him because of his religious faith and beliefs. Complainant claimed that the barrage of emails “affected his psychological well-being in the office.” …

No religious harassment, the Commission concluded, and rightly so. I’ve argued that the current state of hostile environment harassment law is too broad, but it’s not that ridiculously broad. Hint: If you publicly complain about a colleague’s celebration, and a bunch of people respond by conspicuously congratulating the colleague, that’s disagreement — it’s not harassment.

That’s what seems to be the holding of Gilbert v. 7355 South Shore Condominium Ass’n & Shelley Norton (Chi. Com. Hum. Rel’s July 20, 2011), leading to damages of $2100, fines of $1200, and “reasonable attorney fees and associated costs,” which I suspect are likely to be in the tens of thousands of dollars. The statements were said by a condo association manager about a condo owner, but as I’ll note below the logic of this case would likewise apply to tenants speaking about another tenant.

The case is complex, and involves unsuccessful claims of sexual orientation discrimination and race discrimination. (The plaintiff claimed various forms of discriminatory treatment — including eviction — by the defendant, but the commission held against the plaintiff, because it found that the plaintiff would have been subject to the same treatment even without regard to the defendant’s bias.) But here’s what seems to be the heart of the harassment claim, which the commission did accept (emphasis added):

[Vernita] Gray has provided ample direct evidence of Respondents’ discriminatory animus and creation of a hostile housing environment for Gray based on her sexual orientation. This included: Gray’s testimony that in March 2000, Norton told her that she would not turn the building into a Halsted Street; Butler’s testimony that Norton stated in June 2000 in relation to Gray that she was tired of this “gay ass shit”; Shields’ testimony that within the first couple of months of moving in, Norton told her that the walls were thin and intimate conduct could be heard, that she was not happy with Gray moving in because Gray did not respect the building’s culture, and that she did not want lesbian conduct in the building; and McMikel’s testimony that within a few months after she moved in during February 2003, Norton spoke of Gray and Gilbert being gay and of not wanting the gay lifestyle in the building….

[Commission] Reg. 420.175(b) … provides: “Slurs and other verbal or physical conduct relating to an individual’s membership in a Protected Class… constitutes harassment when the conduct: (i) has the purpose or effect of creating an intimidating, hostile or offensive housing environment; (ii) has the purpose or effect of unreasonably interfering with an individual’s housing; or (iii) otherwise adversely affects an individual’s housing opportunity.”

As recommended by the hearing officer, the Commission finds that Norton’s negative and derogatory comments about Gray’s sexual orientation had the purpose and effect of creating a hostile and offensive housing environment for Gray which interfered with her protected housing rights and violated the Chicago Fair Housing Ordinance.

Respondents object to this finding, arguing that in only one instance were the derogatory comments directed at Gray. Respondents’ objection is based on a narrow view of what constitutes hostile environment harassment that is not supported by the law. Certainly derogatory comments about Gray’s sexual orientation made to other persons (especially when they are other residents of the building) created a hostile housing environment just as derogatory comments made directly to Gray did.

Norton was the president of the condo association board, and may have been a paid employee. But since hostile housing environment harassment law has developed by analogy to hostile work environment harassment law, which holds employers liable for the speech of their employees, a condo association or landlord would likewise be liable for the speech of their members or tenants. It’s possible that a condo association might be absolved of liability on the theory that they can’t control their members’ speech, since presumably offensive speech about neighbors isn’t a ground for kicking someone out of a condo that he owns. But a landlord is indeed potentially liable for the speech of its tenants, since it could evict them, see Neudecker v. Boisclair Corp. (8th Cir. 2003).

And this decision illustrates that the possible liability isn’t just limited to insulting statements to a particular person, but also statements about that person. To repeat a hypothetical I posed earlier, say that some tenants are very hostile to fundamentalist Christianity. They often condemn fundamentalist Christians (referring to them as “Jesus freaks”) in conversations in common areas, such as around the swimming pool, in the laundry room, or in hallways. (Such conversations are overheard by fundamentalist Christian tenants every couple of weeks, or overheard by third parties who then tell the Christian tenants about them.)

They sometimes wear T-shirts that contain anti-fundamentalist-Christian messages, and put bumper stickers with anti-fundamentalist-Christian messages on the cars that they park in the building’s garage. The landlord also allows all tenants to put up posters on their own doors (so long as they don’t physically damage the door); the anti-fundamentalist tenants have put up some posters that ridicule fundamentalist Christianity. They do not make such statements directly to other fundamentalist Christian tenants, but they’re well aware that fundamentalist Christian tenants might see the posters and hear the statements. But the anti-fundamentalist tenants don’t care: They want to express their views, and don’t care that others might be offended.

The fundamentalist Christian tenants go to the landlord, and say: The other tenants’ speech has created an environment that’s hostile to us based on our religion (and that a reasonable person would find hostile based on religion). Tell the other tenants that they must stop this, and that you’ll evict them if they don’t stop. The landlord would then have a legal obligation — enforceable by the threat of a substantial damages verdict — to stop the anti-fundamentalist tenants from expressing their offensive viewpoints. And, as the Gilbert decision shows, the tenant-speakers would also be personally liable for damages and fines as well.

The same hypothetical could be given with regard to anti-extremist-Muslim views and anti-gay views, among others. And since the Chicago fair housing ordinance covers discrimination and therefore harassment based on “source of income,” “military discharge status,” “marital status,” and “parental status” (all defined quite broadly), there could be liability for statements that express hostility to welfare recipients, to lawyers or bankers, to veterans, to dishonorably discharged soldiers, to unwed parents, and more. And, as I noted, that’s true even if the statements aren’t personal face-to-face insults, but simply said about a neighbor to other neighbors — or (borrowing from hostile work environment harassment law) the group to which the neighbor belongs.

For more on hostile environment harassment law, including hostile work environment harassment law, see here. For hostile public accommodations law, which — like hostile housing environment law — applies similar speech restrictions outside the plaintiff’s workplace, and to places such as restaurants, parks, and the like, see here and here.

Sapp v. School Board of Alachua County (N.D. Fla. Sept, 30, 2011), which was just made available on Westlaw today, holds that (1) a public school properly restricted the wearing of “Islam is of the Devil” T-shirts because they led to substantial disruption, and (2) the school’s broader policy banning “clothing or accessories that … denigrate or promote discrimination for or against an individual or group on the basis of age, color, disability, national origin, sexual orientation, race, religion, or gender” was constitutional.

Decision 1 strikes me as correct, given Tinker v. Des Moines Indep. Comm. School Dist. (1969), which allows speech in K-12 schools to be restricted if it seems likely to cause substantial disruption. To be sure, this allows a “heckler’s veto” that wouldn’t be allowed outside K-12 schools — here, for instance, the disruption included (among other things) a student’s telling one of the T-shirt wearers, “My friend is a Muslim, and he’s going to kill you”; if this happened outside school, that would only be justification for punishing the threatener, not suppressing the speech of the threatened. Nonetheless, Tinker does allow student speech to be restricted when it causes disruption, and hostile reactions might well be quite disruptive.

Decision 2, though, strikes me as incorrect, because it isn’t limited to speech that causes disruption; indeed, the policy is much like that struck down by the Third Circuit in Saxe v. State College Area School Dist. (2001). Indeed, the policy is so broad that it would ban display of messages that say “Preserve Traditional Marriage” (in a context where this is understood as opposing proposals to allow same-sex marriage), even if such messages create no disruption — after all, such a message “promote[s] discrimination … against … [a] group on the basis of … sexual orientation. For that matter, the policy would likewise ban display of messages that support race-based affirmative action, since that likewise would be “promot[ing] discrimination for … [a] group on the basis of … race.” That can’t be constitutional, even given Tinker.

The proposed law would mandate that public and charter schools, city parks, city libraries, and the University of District Columbia ban

any gesture or written, verbal or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory handicap, or by any other distinguishing characteristic that: …

has the effect of insulting or demeaning any student or group of students in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of a school, university, recreation facility, or library.

Say, then, that someone puts on an event at a park that “has the effect of insulting or demeaning” Muslims or Scientologists or fundamental Christians or gays or men or women, if some of the insulted or demeaned group consists of “students” (whether school or university students). And say that this “cause[s] substantial disruption in, or substantial interference with, the orderly operation of” the park — perhaps by leading to a counterdemonstration, or maybe just by insulting some other park visitors. Under the policies that the proposed law would mandate, such speech would have to be banned. Yet that would be a pretty clear violation of the First Amendment as it protects free speech in a traditional public forum such as a park, see, e.g., Forsyth County v. Nationalist Movement (1992). And even on non-traditional-public-forum property, such as in a library or an indoor recreational facility, viewpoint-based restrictions would be unconstitutional; a ban on speech that demeans groups based on various criteria would likely qualify as viewpoint-based and therefore unconstitutional.

Likewise, the proposed law would require the University of District Columbia to punish UDC students who “insult[] or demean[]” such groups, so long as it is found that the speech “cause[d] substantial disruption” — and not just by its volume or its location, but by the “insulting or demeaning” viewpoint that it expresses. Yet that likewise would be inconsistent, it seems to me, with the many lower court decisions that strike down campus speech codes, see, e.g., McCauley v. University of the Virgin Islands (3d Cir. 2010). An article in a student newspaper, for instance, might “cause substantial disruption” because it leads to student protests or broad student upset (or even to fights among some students); but, given those lower court cases, the author and publisher of the article would remain constitutionally protected against government-imposed student discipline.

In public schools, such restrictions might be upheld, under Tinker v. Des Moines Indep. Comm. School Dist. (1969); Tinker did hold that speech that substantially disrupts school operations is constitutionally unprotected. But that case is focused on the special context of speech in K-12 educational institutions. It doesn’t justify similar restrictions in parks or at universities. (Thanks to Hans Bader for the pointer.)

Edwards v. Gruver (Ky. Ct. App. Oct. 14, 2011) (2-1 vote) involves an especially vile group — a KKK organization. But the principle potentially extends considerably more broadly, to justify imposing massive liability on a wide range of political groups whose ideologies in some situations encourage violence, and whose members indeed act violently while advocating on behalf of the group: potentially, extremist animal rights groups, extremist anti-abortion groups, extremist anti-capitalist or anarchist groups, perhaps unions that engage in harsh rhetoric against employers or supposed “scabs” (though maybe such claims against unions would be preempted by federal labor law), and so on.

Here are the facts in a nutshell: Ronald Edwards founded the Imperial Klans of America, and urged members to go out to recruit prospective new members. Four such members — Jarred Hensley, Andrew Watkins, Joshua Cowles, and Matthew Roberts — went to a fair to recruit, and there met and badly beat up Jordan Gruver, because he was part Hispanic. Gruver sued the attackers for assault, but also sued Edwards for “negligent selection” and “negligent supervision” of the four recruiters. The jury “returned a verdict in favor of Gruver in excess of $2.5 million. Of that amount, over $1.5 million was in compensatory damages against Hensley and Edwards, with Edwards’ being found responsible for twenty percent of the amount, and $1 million in punitive damages for which Edwards was found solely responsible.” UPDATE: Edwards was apparently not found to have intentionally orchestrated the attack, or conspired in the attack — the jury just concluded that his negligence in selecting and supervisors his recruiters contributed to the attack.

Negligent selection, which is the non-employment equivalent of negligent hiring, and negligent supervision are both special cases of negligence law; the theory is that when A works or volunteers for organization or individual D and injures P, and D had reason to think A might act this way but failed to take reasonable steps to prevent this (by not using A or by properly monitoring him), D was acting negligently and P could sue D for that negligence. This often arises, for instance, when an employer hires someone with a criminal record (e.g., for burglary or sexual assault) to go into customers’ homes (e.g., to clean them, to do door-to-door sales, and so on), and the employee then commits a crime against the customer; the claim is that the employer acted unreasonably in hiring the person, given that person’s criminal history.

This is not the “respondeat superior” theory under which an employer is strictly liable for the tortious actions of its employees acting within their scope of employment. Rather, it’s based on negligence (not strict liability) but extends even to actions outside the scope of employment, for instance because the actions are motivated by the employee’s own greed, lust, or anger and not by a desire to serve the employer.

The (to my knowledge) novel factor in this case is that the defendant is a political group leader held liable for the actions of his activists, and the group’s politics served as an important aspect of the plaintiff’s claim. (The facts also contained evidence that defendant had specifically solicited identified acts of violence in other contexts, and didn’t just preach the propriety of violence in the abstract; but as a legal matter, such facts wouldn’t generally be required for negligent hiring/selection/supervision cases, as the block quote below suggests.) So it seems to me likely, but not certain, that the theory could likewise apply to other groups whose activists, especially ones who have criminal records, commit crimes — whether violent crimes or property crimes — and whose ideologies can be seen as egging people on to violence. Perhaps this is legally sound and perhaps it isn’t, but in this post I just wanted to flag the issue so that others can follow it. Here is an extended excerpt of the case:

Continue reading ‘Pro-Violence Political Groups’ “Negligent Selection” Liability for Criminal Actions by Members Engaged in Group Activities’ »

That’s part of the Louisville Human Relations Commission complaint filed by the Lexington Fair Housing Council (a local nonprofit) last year against Teen Challenge; the nonprofit also alleged that Teen Challenge discriminates based on sexual orientation in housing. The full allegation:

The Respondent provides housing in Lexington, Kentucky that is open to individuals of all religions, but teaches against homosexuality and has a preference for [individuals] who are not gay.

The director of another fair housing of advocacy group in the area echoed this view, according to the Louisville Courier-Journal, Apr. 13, 2011 (payment required):

“I do think they’re in violation of the Fairness Ordinance,” [said Chris Hartman, the director of another fair housing advocacy group]. Discrimination could be in the form of trying to persuade women to change their lives or harassing them “by preaching against it,” he said….

As of April, the complaint was still pending with the Human Relations Commission; I’m trying to figure out if more has happened to it since. [UPDATE, Oct. 11, 2011: I've confirmed that the complaint is still pending.]

UPDATE: Just to make it clear, my concern here is with the claim that the very teachings against homosexuality are illegal in a residential setting such as this one; I think that it would violate the Free Speech Clause for the Commission to hold that such teachings violate the law. Requiring Teen Challenge not to discriminate based on sexual orientation in selecting residents is a separate matter. Such a requirement would not violate the Free Speech Clause; nor would it violate the Free Exercise Clause, even if Teen Challenge claimed that it felt a religious obligation to exclude lesbians (though in that case it might violate the Kentucky Constitution’s religious freedom guarantee, if Kentucky courts decide to interpret that provision as securing a limited right to religious exemptions from generally applicable laws).

An Australian court just held today, in Eatock v. Bolt, that Australian journalist Andrew Bolt and the newspaper The Herald and Weekly Times violated the law by publishing newspaper articles arguing that

1. fair-skinned Australians “with some Aboriginal descent” “are not genuinely Aboriginal persons but … motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal,” and
2. “[f]air skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.”

(The quotations are from the court opinion’s paraphrase of the articles; the full articles are available at the end of the opinion.) This, the judge held, violated the Racial Discrimination Act:

[I]n seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objectives tolerance for and acceptance of racial and ethnic diversity. At the core of multiculturalism is the idea that people may identify with and express their racial or ethnic heritage free from pressure not to do so. People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance.

The judge stressed that “nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people,” and that Bolt and the Herald & Weekly Times violated the law “because of the manner in which that subject matter was dealt with.” (The judge concluded that the fair comment exception to the law doesn’t apply because the publication “was not done reasonably and in good faith in the making or publishing of a fair comment” or “done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest.”) But the fact remains that, under this decision, it is illegal in Australia to publish what the journalist and newspaper published.

The judge said that he “will make orders prohibiting the republication of the newspaper articles,” and “[i]n the absence of the publication of an apology, I will consider making an order for the publication in the Herald Sun of a corrective notice.” A pretty appalling result in a democracy, it seems to me.

The Mail Online reports:

Police have threatened a Christian cafe owner with arrest –- for displaying passages from the Bible on a TV screen….

The Salt and Light cafe in Blackpool has for years repeatedly played the entire 26-hour-long Watchword Bible, a 15-DVD set produced in America in which a narrator reads the whole of the New Testament, on a small flatscreen TV on the back wall….

The sound is turned down but the words flash on to the screen against a series of images….

Mr Murray said the two uniformed officers from Lancashire Constabulary arrived at lunchtime on Monday, the cafe’s busiest time of day. WPC June Dorrian, the community beat manager, told him there had been a complaint and he was breaching the Public Order Act 1986….

[Mr Murray said.] ‘I said, “Are you really telling me that I am facing arrest for playing the Bible?” and the WPC fixed me with a stare and said, “If you broadcast material that causes offence under the Public Order Act then we will have to take matters further. You cannot break the law.” ’ …

Murray said that he suspected the offending passage was from Romans 1:26-28, “God let them follow their own evil desires. Women no longer wanted to have sex in a natural way, and they did things with each other that were not natural. Men behaved in the same way. They stopped wanting to have sex with women and had strong desires for sex with other men. They did shameful things with each other, and what has happened to them is punishment for their foolish deeds.” The police, according to the Mail Online article, “said they had received a complaint on Saturday afternoon from a female customer who was ‘deeply offended’ by the words she had seen on the screen,” and “[a] spokesman said they were ‘duty bound’ to respond to the complaint and had concluded the cafe could be in breach of Section 29E of the Public Order Act, which warns that people who play images or sounds that stir up hatred against homosexuals could be guilty of an offence.” According to the police spokesman,

At no point did the officer ask the cafe owner to remove any materials or arrest the man and we took a commonsense and objective approach in dealing with the complaint. We believe our response and the action we took was completely proportionate and our officers are always available should the cafe owner want to discuss the matter or need any advice in the future.

The Constabulary is respectful of all religious views. However, we do have a responsibility to make sure that material that communities may find deeply offensive or inflammatory is not being displayed in public.

No complaint has been received about the conduct of the officer in question and we are satisfied that they performed their duties professionally.

For examples of how the “hostile public accommodations environment” theory could be used in America to accomplish similar results see the Tom English’s Bar case and the various other cases mentioned here, as well as my former student Daniel Koontz’s Hostile Public Accomodations Laws and the First Amendment article. I think liability on such a theory in the U.S. would violate the First Amendment, but so far there has been little discussion of this question in the cases (partly because such cases are still comparatively rare).

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

So reports Pakistan Today:

The Lahore High Court Justice Sh Azmat Saeed on Monday ordered ministry of information and technology to block access to all websites in Pakistan especially American social networking website “Facebook”, spreading religious hatred on internet and to submit a compliance report by October 6. The judge, however, made it clear that no search engine including “Google” would be blocked.

The court issued this order while hearing a petition seeking a permanent ban on the access to American social networking website “Facebook” for hosting competition featuring blasphemous caricatures.

Muhammad & Ahmad, a public interest litigation firm, through chairman Muhammad Azhar Siddique advocate filed this petition and prayed for a permanent ban on access to Facebook for hosting a fresh blasphemous caricature drawing contest world over under a title “2nd Annual Draw Muhammad Day-May 20, 2011″….

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

JTA reports:

A made-in-France iPhone app called “Jew or Not Jew?” was removed from the French app store, its creator, Johann Levy, told JTA….

French Jewish and human rights groups argued that the application, which came out in early August and allows users to guess whether public personalities are Jewish or not, violates French law forbidding the collection of personal data such as a person’s religion or ethnicity without permission from the individual.

The law was largely founded on the principle that Nazi occupiers used similar methods to round up Jews during World War II and send them to death camps….

“I did it out of healthy intentions. I am Jewish myself,” Levy said Tuesday on French radio Europe 1. “The goal was just to bring a feeling of pride to Jews when they see that such-and-such a businessman or celebrity is also Jewish.”

According to French law, Levy’s actions could technically cost him five years in prison and about $412,000 in fines, and SOS Racism announced it would file an official complaint for “an illicit” database by the end of this week….

The Apple Store also was facing legal responsibility for approving the sale of the application for about $1, but SOS Racism said it would only pursue the store if it refused to remove the program from sale….

Levy said he found all his information concerning the more than 3,500 individuals on the Internet and argued the data was already public.

It seems to me that talking about who’s Jewish and who’s not — or who’s a Scientologist, or who’s an atheist, or who’s an evangelical Christian — is something that people should be free to do, whether they do it on an iPhone or otherwise, and whether or not they create a list of the people they think belong to that religious group. That such lists were once made by evil people bent on evil acts, or even that such lists could be abused in the future, does not, I think, suffice to justify punishing them. But French law seems to disagree.

If you know more about the details of the law, and about whether Levy’s critics are right to say that his actions are illegal, please post about this in the comments. Likewise, if you know how the law would apply to, say, Wikipedia entries, whether biographical entries on individual people or entries that list famous Jews (or famous members of other groups), please post about that as well. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Deutsche Welle reports that the appeals court upheld the conviction, though lowered the fine (to $9,230) based on the defendant’s income:

Williamson had been convicted for inciting hatred, an offense which, under German law, incorporates any claim that the Holocaust did not happen. Williamson was in Germany when he told an interviewer for a Swedish television channel that, although Jews were killed during the Holocaust, the accepted figure of between five and six million was inaccurate, and the Nazis did not use gas chambers. He was convicted in absentia, with a lawyer present on his behalf.

Williamson’s lawyer argues that his client’s comments did not breach German law because they were never intended for broadcast in Germany. However, they sprawled globally over Internet video portals and were subsequently picked up by German national media. Judge Birgit Eisvogel ruled that Williamson should have been aware that any such television comments would inevitably find their way around the world, and thus to Germany, also noting Williamson’s own familiarity with the nature of the Internet: “We know that the accused is himself a blogger.”

The bishop was at the time an excommunicated Catholic, from “the semi-independent hard-line Society of Saint Pius X,” though the excommunication was lifted in 2009. “Vatican officials say the Pope was unaware of Williamson’s comments when he made the decision.”

As readers of the blog may know, I think that having an orthodox view of history, enforced through legal punishment, is very dangerous to a democracy; I think Holocaust denials laws are therefore a very bad idea. For more on the subject, see this post and this one. Thanks to Kent Scheidegger (Crime and Consequences) for the pointer.

[UPDATE, July 15, 2011: I've just gotten and posted a copy of the criminal complaint, which is consistent with the story quoted below. Note that the complaint does refer to the candidate as the "victim," which suggests that the objevction is to the supposed annoyance to the opposing candidate, not to the recipients of the flyers.]

The Bergen County Record (N.J.) reports:

The Hawthorne Police Department filed two counts of harassment charges in the fourth degree on June 9 against a primary candidate.

The charges against Phillip Speulda, who ran against Democrat Robert Van Deusen for council in Hawthorne’s Ward 2, are for mailing and personally distributing campaign literature with the purpose to harass another. According to a court document, Speulda sent fliers to residents of the 2nd ward that contained “a picture of the victim, who was running for borough council, in a tub with two men knowing the victim was homosexual” and made communications in a manner likely to cause annoyance specifically by going door to door to residents of the 2nd ward and handing out literature that made reference to “the victim’s sexual orientation knowing that the victim was homosexual.” …

“Through police investigation, the campaign literature was discovered in the Ward 2 area and was distributed specifically to at least two people who had signs supporting Van Deusen on their lawn and to people who didn’t have signs, but signed a petition in favor of him,” [police captain Richard] McAuliffe said.

If Speulda is found guilty he may be subject to a fine….

“We feel he specifically targeted people who supported Van Deusen and in the manner he was doing it was to likely cause annoyance or alarm,” McAuliffe said.

The campaign flyer appears to be the one I include at the bottom of this post; the criminal statute appears to be N.J. Stat. § 2C:33-4:

[A] person commits … offense if, with purpose to harass another, he … [m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; …

Unless there’s something here that’s well beyond what the newspaper article reports, Speulda’s behavior seems to be clearly protected under the First Amendment. People are free to criticize candidates for office, including based on the candidates’ sexual orientation, and including when the content of the message is “likely to cause annoyance.”

That’s true even when the supposedly annoyed party is a homeowner who is being approached with a message critical of a candidate that he has endorsed; the homeowner is free to tell the distributor of the message to leave, and a distributor who doesn’t leave could be prosecuted for trespass, regardless of what the message says. But the distributor can’t be prosecuted on the grounds that the content of his message is likely to annoy some voters. And that’s certainly true when the supposed “victim” is the candidate who’s being criticized.

If you know more about the case, please let me know; I’m trying to get a copy of the quoted court document, but dont have it yet. (Note also that the article seems to contradict itself in some measure as to the degree of the offense: It starts by saying the charges were of “harassment … in the fourth degree,” which suggests that subsection e of the statute — “[a] person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment or was on parole or probation” — is applicable. But it later says that the “investigation resulted in two harassment complaints, which are disorderly person offenses,” and the offense is a petty disorderly person offense if subsection e is not applicable.)

The official translation is here; thanks to commenter martinned for the pointer.

From de Rechtspraak, the website of the Dutch Judiciary and the Supreme Court of the Netherlands:

Verdict of the Amsterdam district court as regards the Wilders trial, 23 June 2011

Amsterdam, 23 June 2011 – Hereafter, the most important decisions of the district court are summarized. For the integral text, please go to www.rechtspraak.nl …

Allegations
The writ of summons contains utterances from interviews, an opinion article, an internet column and a movie (Fitna). By expressing these utterances, the public prosecution accuses Wilders to be guilty of the following:
1. Group defamation by insulting a group of people (Muslims) based on their religion
2. Incitement to hatred against people (Muslims) based on their religion
3. Incitement to discrimination of people (Muslims) based on their religion
4. Incitement to hatred against people based on their race
5. Incitement to discrimination of people based on their race….

Punishability of the utterances

The district court has investigated whether the facts which can be attributed to the suspect, are punishable. The district court draws the conclusion that the suspect shall be acquitted from all charges, based on the following examination:

Count 1: This concerns the indictable offence “group defamation”. In order for this offence to be proven, it should be determined whether the utterance concerns “a group of people”, in this case the Muslims. An example of an utterance that has been charged with in this count reads as follows: “The foundation of the problem is the fascist Islam, the sick ideology of Allah and Mohammed as laid down in the Islamic Mein Kampf: the Koran. The texts from the Koran leave little room for imagination”.

It can be deduced from legal history and jurisprudence that criticism as regards religion and criticism as regards the followers of a certain religion are allowed. The district court refers to an important verdict from the Dutch Supreme Court of Justice (Hoge Raad) of 10 March 2009 (LJN BF0655), which has been reached after the realization of the decision in which the prosecution of Wilders was requested. The utterance as referred to above, as well as other utterances from count 1 refer to the Islam. The utterances do not refer to “a group of people” pursuant to article 137c of the Dutch Criminal Code. This results in acquittal.

Counts 2 and 3. These concern the indictable offences “incitement to hatred against and discrimination of people based on their religion”. The district court examined the utterances as charged, among which the movie Fitna as well, one by one. In addition, the district court has reviewed the utterance itself as well as the connection with the remainder of the article from which the quotation derived. Furthermore, the district court reviewed the context in which the utterance should be placed. For example, the context comprises the public debate.

As regards a large number of utterances, the district court determines that these refer to the Islam and, therefore, do not incite to hatred against people or to discrimination of people. Thus, this already results in acquittal.
Sometimes, this can be deduced from the utterance itself, and sometimes from the connection with the remainder of the article. An example of one of these utterances is as follows: “From that tsunami from a culture unknown to us which becomes more and more dominant here. That should be stopped”.
The rule prevails here as well that criticism as regards religion is allowed.

The district court has separately examined the following utterances. First of all, this concerns the utterance: “Those Moroccan boys are truly violent. They beat up people based on their sexual origin. I have never used any violence”.
This utterance is not directed to people based on their religion and, therefore, this shall result in acquittal.

The district court determines that a number of utterances could fall under the scope of “incitement to discrimination”. An example is as follows: “That very same day, the borders close for non-Western residents”. Some other utterances generally have the same meaning. The district court determines that these quotations are allowed because of the context of the public debate in which Wilders utters his statements as a politician. In the Netherlands, the multicultural society and immigration were largely discussed when the suspect uttered these statements. In his view, the suspect raised public problems with his utterances. The utterances do not cross criminal legal boundaries. Therefore, this results in acquittal as well.

Continue reading ‘Geert Wilders Acquitted’ »

So holds Teesdale v. City of Chicago (N.D. Ill. May 26, 2011) (earlier ruling here), in a decision that is much like the one in the Dearborn, Michigan incident, though of course with a different religious group as the target:

Plaintiffs … alleged that defendants interfered with their distribution of religious literature and related proselytizing during the July 2008 St. Symphorosa Family Fest held on the grounds of St. Symphorosa Church and surrounding public streets….

This case was filed three days before the July 2009 Fest began. Two days before the Fest began, plaintiffs filed and served a motion for temporary restraining order and preliminary injunction which they presented in court on the same day that the four-day 2009 Fest began. The day after the filing of that motion, the City filed its opposition to preliminary relief. In that opposition, the City argued that it

did not violate the First Amendment by enforcing its permit scheme to allow St. Symphorosa to hold its permitted event and to allow it to exclude the Plaintiffs who wished to convey a message antithetical to St. Symphorosa or the Catholic Church. The Plaintiffs could convey their message elsewhere or at another time or outside of the boundaries of the permit granted to St. Symphorosa [T]he City has a significant interest in preserving St. Symphorosa’s right to have its message heard, rather than the anti-Catholic sentiments of Plaintiffs.

Continue reading ‘Court Upholds Baptists’ Right to Proselytize (and Criticize) on Sidewalks at a Religious Festival’ »

The story (which, among other things, argued that the South African Constitution should be changed to reject same-sex marriage rights) and cartoon (which suggested that recognition of same-sex marriage would logically justify recognition of human-animal marriage) are here. The account of the court decision is in the Mail & Guardian; here’s an excerpt:

Former Sunday Sun columnist Jon Qwelane was found guilty of hate speech by the Johannesburg Equality Court on Tuesday.

The court found that a cartoon in his column amounted to hate speech, and that both his article and the cartoon propagated hatred and harm….

Qwelane was ordered to make an unconditional apology to the gay and lesbian community, and pay R100 000 to the SA Human Rights Commission….

Qwelane did not make much of an appearance in the course of the trial. He failed to sign court papers presented to him by a clerk and did not file responding papers.

The court ruled that, as it had only one version of the story, the SAHRC’s argument would be accepted.

By the way, I should stress — especially given the criticism that I’ve seen of the ACLU from some commenters — that ACLU chapters deserve praise for defending the anti-Islam speech in the two incidents I blogged about today: The blocking of Terry Jones’ planned demonstration outside a Dearborn, Michigan mosque, and the firing of a New Jersey Transit worker for burning a Koran.

There’s much that I disagree with the ACLU about, and I’m sure we all can find things on which most organizations — including the ACLU — have been inconsistent under our definition of consistency. But I’ve seen quite a lot of excessive criticism of the ACLU as supposedly being unwilling to protect speech by Christians, anti-Islam speech, speech that’s generally labeled as “politically incorrect,” and the like. Yet cases such as this (and these aren’t the only two) show that a good chunk of the legal defense of free speech, including of the freedom to engage in anti-Islam speech, is being fought by ACLU chapters. They deserve credit for that.

[Original title: Dearborn Jury Holds Terry Jones May Be Barred from Organizing Rally Outside Mosque.] So reports the Detroit Free Press:

A Dearborn jury just sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn.

Judge Mark Somers will now determine the conditions of Terry Jones’ bond….

Strikes me as a pretty clear violation of the would-be demonstrators’ First Amendment rights. (See my earlier post for more on one aspect of the issue.) I hope Jones seeks prompt review from higher courts, probably under some state law mandamus procedure that could give a quick remedy within days (rather than through a direct appeal, which could take months or years); if anyone knows how these things are done under Michigan law, I’d love to hear it. Ultimately, a petition for an emergency stay from the U.S. Supreme Court would be possible, but practically speaking Jones would need to go through the Michigan review process first.

UPDATE: Since I first linked to the story, there’s been a huge update:

A judge late today sent two Florida pastors to jail for refusing to post a $1 bond.

The stunning development came after a Dearborn jury sided with prosecutors, ruling that Terry Jones and Wayne Sapp would breach the peace if they rallied at the Islamic Center of America in Dearborn.

Prosecutors asked Judge Mark Somers for $45,000 bond. Somers then set bond at $1 each for the two pastors.

They refused to pay. And Somers ordered them remanded to jail.

I’m not positive from the story, but I assume that Jones and Sapp refused to pay because part of the bond was a promise not to engage in the demonstration (and not just because they wanted to, as a matter of principle, refuse to pay even $1). Again, I assume that Jones will seek emergency review, and I expect that he will promptly win.

FURTHER UPDATE: For the ACLU of Michigan’s brief in the jury trial, see here; according to a commenter, a TV account reports that the ACLU will be representing Terry Jones in the review proceedings, though Jones apparently represented himself at trial.

STILL FURTHER UPDATE: The Detroit Free Press reports on a further development: “Late Friday the two pastors posted their $1 bond and left jail, according to Dearborn Mayor Jack O’Reilly Jr.” But, “[a]According to the Wayne County prosecutor’s office, both Jones and Sapp are prohibited by the court from going to the mosque or adjacent property for three years.” Again, to the extent the order bars them from picketing near the mosque (apparently for fear that the picketing might lead to people violently attacking them), that is a prior restraint that pretty clearly violates the First Amendment; I expect the order to be reversed by higher courts.

The Detroit Free-Press reports:

Florida Pastor Terry Jones is expected to appear in court this morning for a jury trial that will determine whether he can hold a rally at the largest mosque in the city….

Jones appeared in court Thursday and refused to post a bond for the massive security effort Dearborn says it would have to deploy if Jones were allowed to rally. The judge [Mark Somers] then ordered the trial….

I think requiring anything other than a modest, content-neutral permit fee would be unconstitutional, as the Court held in Forsyth County v. Nationalist Movement (1992). Forsyth County struck down an ordinance that required organizations to pay a security fee (capped at $1000) for “the cost of necessary and reasonable protection [for assemblies] … [that] exceeds the usual and normal costs of law enforcement ….” The Court found the security fee unconstitutional because, among other reasons, the regulation included no objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.” And even beyond the unconstrained discretion as to the amount, the Court held that a demonstration permit fee can’t be based on the likely risk that audience members will react violently:

The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.

The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said … activit[y].” In order to assess accurately the cost of security for parade participants, the administrator “‘must necessarily examine the content of the message that is conveyed,’” estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit….

The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

A sound analysis, it seems to me, and one that would preclude jury-set fees for speakers who “might offend a hostile mob” a well as fees set by government officials. To its credit, the Michigan ACLU has publicly sided with Jones on the constitutional question.

Another charge appears to be defamation — as best I can tell, of the country of Greece generally. From Spiegel Online:

It was supposed to be a provocative piece of journalism and a tongue-in-cheek comment on German concerns about a European Union bailout for debt-ridden Greece. But the Feb. 22, 2010 cover of the weekly German newsmagazine Focus — which showed the goddess Aphrodite making an obscene gesture [giving people the finger] — caused outrage in Greece….

Now six Greek citizens who felt particularly offended are taking legal action against the journalists involved, including Helmut Markwort, the magazine’s founder who was also editor in chief of Focus at the time of publication.
According to reports in the Wednesday editions of the German newspapers Handelsblatt and Tagesspiegel, Markwort and nine other Focus employees are due to appear in an Athens court on June 29. The newspapers reported that public prosecutor Ourania Stathea is looking into accusations of defamation, libel and the denigration of Greek national symbols….

The story, titled “Swindlers in the Euro Family,” included a detailed description of what the authors claimed was “2000 years of decline” in Greece, including reports of tax fraud and failed construction projects….

I can’t speak with any confidence about the likelihood that the case will go further, but it struck me as worth noting. If anyone has more information on how seriously the prosecutor is apparently considering the case, please post it in the comments. Thanks to Prof. Bill Poser for the pointer.