Archive | “Hate Speech”

Attempted Assassination of Critic of Islam in Denmark

Fortunately the target, Lars Hedegaard, was not injured. The BBC reported Feb. 5:

Mr Hedegaard heads Denmark’s Free Press Society, which argues that religious and ideological interests are threatening freedom of expression.

He also heads the International Free Press Society, founded in 2009, which launched an international campaign to support the Dutch anti-Islam politician Geert Wilders’s right to criticise Islam.

Mr Hedegaard was fined in 2011 for making insulting statements about Muslims but Denmark’s supreme court dismissed the judgment the following year.

This is apparently the third such incident in Denmark in a bit over 3 years:

Somali refugee Mohamed Geele was jailed for trying to kill cartoonist Kurt Westergaard [the author of the Mohammed-turban-bomb cartoon -EV] with an axe in January 2010.

Lors Dukayev, a Chechen asylum seeker, was jailed for terrorism over an attempted letter bombing of Jyllands-Posten [which first published the Mohammed cartoons -EV] in September 2010.

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Crime to Create a “Hostile Environment” That “Substantially Interferes” with Person’s “Psychological Well-Being” Based on Race, Religion, Sex, Etc.?

That’s what this New Mexico bill would provide:

BULLYING.–

A. Bullying consists of a pattern of intentional conduct, including physical, verbal, written or electronic communication, that creates a hostile environment and substantially interferes with another person’s physical or psychological well-being and that is:

(1) motivated by an actual or perceived personal characteristic, including race, national origin, marital status, sex, sexual orientation, gender identity, religion, ancestry, physical attribute, socioeconomic status, familial status or a physical or mental ability or disability; or

(2) threatening or seriously intimidating.

B. Whoever commits bullying is guilty of a petty misdemeanor. Whoever commits bullying that results in bodily harm or substantial emotional distress is guilty of a misdemeanor.

Note that this is not limited to speech said to a person, but could cover speech about a person — for instance, harsh attacks on a politician, community leader, academic, journalist, and the like based on the person’s religion, wealth, sexual orientation, and the like. And though the bill is being marketed as protecting children, it is not at all limited to speech about children. Indeed, the speech is not on its face limited to speech about any particular individual, and might cover offensive speech about groups as well, though it would be bad enough even if it were limited to speech about a particular person.

Such restrictions are troubling enough (and, I’ve long argued, unconstitutional when not limited to unwanted speech said to the person), when it comes to “hostile work environment harassment” law. But this bill would broaden this to cover speech everywhere, and make it a crime as well. […]

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More on the Indian State’s Censorship of the Spy Thriller That Was Supposedly Offensive to Muslims

I blogged about this Thursday, under the heading Indian State Government Temporarily Blocks Release of Spy Thriller, Citing Fear of Riots by Muslims. I thought I’d note two follow-ups: First, director Kamal Haasan has “agreed to seven demands of Muslim leaders, mostly muting of the audio of portions objected to by them,” and it now looks like the movie can indeed be released in Tamil Nadu (the state that had blocked it) — and, presumably, will not face potential violent reprisals.

Second, I’ve been trying to figure out just what what supposedly so offensive to some Muslims that it led the Tamil Nadu government to ban it, claiming fears of rioting. I couldn’t find an objective analysis, but I did see a critical opinion column in an Indian political magazine, Tehelka — notwithstanding its likely biases, I thought I’d excerpt it, though I’d be glad to replace or supplement the excerpt from a more objective source, if readers can pass it along. The column begins by suggesting that there were various behind-the-scenes political consideration behind the Tamil Nadu move, and then briefly summarizes the objections:

Those who have watched the film (including this writer) in states other than Tamil Nadu, have found nothing in the film that should offend the sensibilities of Indian Muslims. Vishwaroopam has been running to packed houses in Andhra Pradesh and Kerala, both states with a significant Muslim population, and there has been no breakdown of law and order….

Vishwaroopam is the story of a Muslim RAW agent, who was once a covert operative in the al Qaeda and later saves New York City from a possible terror attack. The story is quite clear that the villainous Muslims are those who are in the al Qaeda, while the Indian Muslim (played by Kamal) is

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Indian State Government Temporarily Blocks Release of Spy Thriller, Citing Fear of Riots by Muslims

Agence France-Presse reports:

The southern Indian state of Tamil Nadu on Thursday defended its ban on a new film …. Spy thriller “Vishwaroopam” was forced out of cinemas after Muslim groups complained that they were portrayed in a negative light ….

Tamil Nadu’s Chief Minister Jayalalithaa Jayaram said her government was forced to impose the 15-day ban to prevent unrest across the state, because there was “every apprehension” that protests outside cinemas would turn violent….

She said the state did not have enough police to maintain law and order outside more than 500 cinemas that were due to show the movie.

[The director of the film], travelling to Mumbai on Friday for the film’s release there, has reportedly agreed to modify his movie to appease the protesting groups…. [The film] has already passed the country’s censorship board….

Acclaimed British author Salman Rushdie also faced the wrath of Muslim groups on Wednesday, forcing him to cancel a trip to the eastern city of Kolkata for a promotional event for the film “Midnight’s Children”.

Rushdie, whose novel “The Satanic Verses” is seen as blasphemous by some Muslims, was also forced out of India’s biggest literature festival last year after apparent threats to his life.

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Virginia Revocation of Plaintiff’s “ICUHAJI” License Plate Is Unconstitutionally Viewpoint-Discriminatory

So holds Bujno v. Commonwealth (Va. Cir. Nov. 2, 2012), which was just posted on Westlaw. The court concluded that the license plate program was a “nonpublic forum” in which the government could restrict speech based on subject matter but not based on viewpoint (a view adopted by other courts as well), and held that the Virginia prohibition on plates that “may be reasonably seen by a person viewing a license plate as socially, racially, or ethnically offensive or disparaging” was unconstitutionally viewpoint-based:

[Under the Virginia DMV rule], plate holders expressing a viewpoint honorific of a particular ethnicity or race may make that expression, but others wishing to express a racially or ethnically disparaging viewpoint may not.

To illustrate, assume that “spud” is a derogatory term for the Irish. According to the Guidelines, a Virginia driver could display an “IRSHPRD” or “LUVIRSH,” tag, but not a “DUMSPUD” or “H8IRSH” tag. One can venerate the Irish, but one cannot disparage the Irish. Thus, the Guidelines impose an impermissible viewpoint restriction.

In this case, Petitioner asserts that “Haji” is an honorific term. Conversely, the DMV asserts that the term “Haji” disparages people of Middle-Eastern descent. Regardless of what Petitioner actually intended, the fact is that the DMV revoked his plates because it believed they could be viewed as offensive. Because the Guidelines would allow Petitioner to praise Middle Easterners, but prohibits him from denigrating them, the Guidelines are unconstitutionally viewpoint discriminatory.

The court also ruled that the Department of Motor Vehicles’ own guidelines barred it from considering the bumper stickers on the car — “God Bless Our Troops / Especially Our Snipers” — in deciding whether the license plate would be seen as offensive or disparaging. But given the court’s constitutional decision, the license plate couldn’t be restricted on the […]

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Are Liberal or Conservative Justices More Likely to Protect “Hate Speech”?

I blogged yesterday about whether liberal or conservative Americans are more likely to support protections for various kinds of speech, including speech arguing that blacks are genetically inferior — the General Social Survey question that’s most relevant to the debate about protection for supposed “hate speech.” It turns out that liberals are somewhat more likely than conservatives to support protection for such speech, though the gulf isn’t wide, and there’s a substantial split of opinion on both sides.

What about Supreme Court Justices? Since 1970, there have been several cases in which the Court has considered restrictions on what might be said to be “hate speech,” usually racist speech but in one instance misogynistic pornography. As I’ll note below, there are limits to how much this dataset tells us, but I pass it along for whatever it’s worth. So here is the data, with the caveats later. Each vote is classified as “+” if it supported protection for racist or misogynistic speech (or hinted substantially in that direction), “-” if it opposed such protection (or hinted substantially in that direction, and blank if the Justice didn’t express an opinion on the subject.

Justice Ideology Collin Hudnut Dawson R.A.V. Avis Black A Black B %
Brennan L + 100
Marshall L + 100
Stevens L + + - + - 60
Souter L + + + + 100
Ginsburg L + + 100
Breyer L + - 50
White M - + + - 50
Powell M + 100
Blackmun M - + + - 50
Burger C - 0
Rehnquist C - - + + + - 50
O’Connor C - + - + - 40
Scalia C + + + - 75
Kennedy C + + + + 100
Thomas C - + + - - 40

The bottom […]

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U.S. Commission on Civil Rights Testimony on the First Amendment and Anti-Muslim/Anti-Islam Speech

I was invited to testify on this subject at today’s U.S. Commission on Civil Rights briefing on Federal Civil Rights Engagement with the Arab and Muslim American Communities Post 9/11, so I thought I’d pass along my written remarks. You can read them in PDF form here, or in plain text below (though without the footnotes). My sense from the questions was that at least some commissioners (and not only the conservative ones) found the subject matter of the remarks interesting.

* * *

October 29, 2012

U.S. Commission on Civil Rights
624 9th St., NW
Washington, DC 20425

Dear Members of the Commission:

I entirely agree that the religious freedom rights and free speech rights of Muslim Americans, as well as all other Americans, should be protected. I have publicly spoken out, for instance, in favor of applying religious accommodation law to Muslim employees as well as to others. I have condemned attempts to criticize Muslim office-holders for taking their oath of office on a Koran. I have spoken in favor of extending mosques the same property rights extended to other property owners, and against attempts to exclude mosques from particular areas. And I agree that the government should take steps to make Muslim Americans, like Americans of all religions, feel welcome in America.

At the same time, attempts to make adherents of minority religions feel welcome should not end up suppressing the free speech rights of others who seek to criticize those religions. Islam, like other belief systems — Catholicism, Scientology, libertarianism, feminism, or what have you — merits evaluation and, at times, criticism. And under the First Amendment, even intemperate and wrong-headed criticism is fully constitutionally protected. Yet unfortunately attempts at suppression of criticism of Islam have been distressingly frequent.

Universities: Thus, for instance, San […]

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Quite the Speech Code

FIRE’s Speech Code of the Month, from SUNY – New Paltz:

This policy applies to all members of the campus community, individuals doing business with the
campus, any person utilizing campus facilities. This will include SUNY New Paltz’s campus, any off-site
facilities, and work-related travel….

Examples of Prohibited Conduct …

Distribution, display or discussion of any written or graphic material that ridicules, denigrates,
insults, belittles, or shows hostility or aversion toward an individual or group because of protected
status.

“Protected status” seems to refer to “sex, sexual orientation, predisposing genetic characteristics, race, color, national origin, age, religion, creed, marital status, military status, or disability, including pregnancy.” So better not distribute, display, or discuss any material that show hostility or aversion to Scientologists, extremist Muslims, conservative Christians, gays, members of the military, or anyone over thirty. Thanks to Paul Milligan for the pointer. […]

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Daniel Baer (U.S. State Department) on Freedom of Speech and Hostility to Religions

A generally very good discussion, I think, from a State Department online press conference on Sept. 27. One can debate whether or not some of the condemnation of certain kinds of speech might go a bit far (though it doesn’t go as far, I think, as the general condemnation of “denigration of religion” that I had earlier criticized). But that’s much less significant in this context, I think, than the detailed, repeated, and unembarrassed reaffirmation of free speech protection:

MR. BUFFINGTON: … As our first question, Satya Festiani from The Republika Online, her question is: What is the U.S. response over the video Innocence of Muslims? Is there any limitation to what kind of freedom of expression is allowed?

MR. BAER: Thanks very much. I – the response from – to the film itself has been made clear both by Secretary Clinton and President Obama in his speech to the UN this week where he said – repeated the statements that we’ve made numerous times now, which is that the content of that film is not something that the U.S. Government had anything to do with or that we support in any way. We reject that, the content of that film, as we reject any kind of film or other speech that would seem to be encouraging people to take hateful attitudes.

That being said, there are protections in international law and in domestic U.S. law for freedom of expression, and those protections are in place and have been in place for a long time. And they have good reasons. And the reasons are that while we certainly deplore the content of certain speech, we protect people’s right to say pretty much all manner of speech. There are some limitations. They are very, very, very limited limitations. And

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Did a Justice Department Official “Refuse to Denounce Demands for Saudi-style Blasphemy Law”?

Several people have pointed me to a July 26, 2012 video excerpt of Rep. Trent Franks questioning Thomas Perez (the Assistant Attorney General for the Civil Rights Division) about whether the Justice Department would commit to “never entertain or advance a proposal that criminalizes speech against any religion”; Perez, it was claimed, refused to commit to this. A Daily Caller piece from July 27, 2012 characterizes Perez’s testimony the same way. Here’s the video excerpt:

It was pretty hard for me to figure out Mr. Perez’s views from the excerpt, though, since Rep. Franks kept interrupting him; and in any event, I thought it would be good to look at a transcript of the entire hearing. And it turns out that the transcript tells a rather different story: Later in the hearing, Mr. Perez expressly agreed that so-called “hate speech” can’t generally be criminalized, though he noted that “threats of violence” are constitutionally unprotected. (Note that federal law already generally bans threats of force intended to obstruct the free exercise of religious beliefs, see 18 U.S.C. § 247.)

I thought I’d note this, and post the relevant parts of the transcript (full video here), since I suspect that many of our readers have seen the video excerpt but not the longer transcript. First, here’s some earlier material that explains Rep. Franks’ concern; Rep. Franks is quoting an Oct. 21, 2011 Daily Caller article: […]

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Administration Seeks to Have “Innocence of Muslims” Removed from YouTube

The LA Times reports:

Administration officials have asked YouTube to review a controversial video that many blame for spurring a wave of anti-American violence in the Middle East.

The administration flagged the 14-minute “Innocence of Muslims” video and asked that YouTube evaluate it to determine whether it violates the site’s terms of service, officials said Thursday. The video, which has been viewed by nearly 1.7 million users, depicts Muhammad as a child molester, womanizer and murderer — and has been decried as blasphemous and Islamophobic.

According to the story, YouTube reviewed the video earlier this week and concluded that it was “clearly within” the website’s guidelines.

UPDATE: Jesse Walker comments at Hit & Run. […]

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“[National Hispanic Media Coalition] Renews Call for Federal Government to Study Hate Speech in Media”

So says a Coalition press release. Some excerpts:

Tomorrow the NHMC will file letters with the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA), sharing this new poll data and renewing unanswered requests that NHMC made back in 2009 for the agencies to study the impacts of hate speech in media.

At a press conference in Washington, D.C., Alex Nogales, President and CEO of NHMC, presented the poll findings alongside Congressman Raul Grijalva (D-AZ) and fellow civil rights activists from the NAACP, the Gay and Lesbian Alliance Against Defamation (GLAAD) and the National Hispanic Leadership Agenda (NHLA)….

Neither the press release nor the underlying report defines “hate speech,” but it does talk about some things it disapproves of, including, for instance (emphasis added):

People exposed to negative entertainment or news narratives about Latinos and/or immigrants hold the most unfavorable and hostile views about both groups….

In discussing those in this country without documentation, the term commonly employed by some media outlets, “illegal aliens,” elicits much more negatives feelings than the term “undocumented immigrants.”

Non-Latinos report seeing Latinos in stereotypically negative or subordinate roles (gardeners, maids, dropouts, and criminals) in television and film.

Congressman Luis Gutierrez (D-IL) was unable to attend the press conference, but issued the following statement in support of NHMC’s work: “We get calls in my office from angry and outraged talk radio listeners several times a week filled with misconceptions and negative stereotypes. The reality is that when you strip away the anger, underneath there is a lot of consensus among Democrats, Republicans, and independents on the immigration issue and how to get things back on a legal footing. Solutions are within reach. Talk radio is an obstacle to reforming immigration but not an insurmountable one.”

Now if people […]

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Former Yale Dean Harold Koh (Now Legal Adviser at the State Department) on Dealing with “Hate Speech” by “Applying … the Transnationalist Approach to Judicial Interpretation”

Related to my post about Prof. Peter Spiro’s views on how international law could be used to diminish the force of U.S. First Amendment protection, I thought I’d note again some thoughts that I noted in 2009 from Harold Koh, former dean of Yale Law School and now Legal Adviser at the State Department, in his 2003 Stanford Law Review article On American Exceptionalism. Dean Koh, one of the most prominent and influential legal internationalists in the U.S., identifies the tactics that fellow internationalists can use to help shift American constitutional law to more closely mirror “international law” norms, including when it comes to “hate speech.” Here are some excerpts (emphasis added):

[I]n a penetrating essay, Michael Ignatieff has catalogued various kinds of American exceptionalism, in the process separating out at least three different faces of American engagement with the world: first, what he calls America’s human-rights narcissism, particularly in its embrace of the First Amendment and its nonembrace of certain rights — such as economic, social, and cultural rights — that are widely accepted throughout the rest of the world….

While this trichotomy is intriguing, I find it both under- and overinclusive. It lumps together certain distinct forms of exceptionalism and misses others. I prefer to distinguish among four somewhat different faces of American exceptionalism, which I call, in order of ascending opprobrium: distinctive rights, different labels, the “flying buttress” mentality, and double standards….

By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for

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Prof. Peter Spiro on Why “Hate Speech” Should Be “Ban[ned]” in the U.S. — and on How It Might Be Done, Using International Law

From yesterday’s Opinion Juris post by Prof. Peter Spiro, one of the leading international law scholars in the country:

The deplorable killing of Chris Stevens in Libya suggests a foreign relations law rationale for banning hate speech.

Remember, the Benghazi protests were prompted by this film depicting the prophet Mohammed in not very flattering terms. The equation from the protesters at the US consulate in Benghazi: this film was produced by an American; we will hold America responsible for it.

The result: national foreign relations are seriously compromised by the irresponsible act of an individual. For structural and functional reasons, that doesn’t make a lot of sense. It’s the rationale behind the Neutrality and Logan Acts. A similar rationale undergirds the ouster of states from foreign relations — along the lines of Hamilton’s dictum in Federalist No. 80 that “the peace of the Whole should not be left to the disposal of the Part.”

And the First Amendment? Call me a relativist. We have some pretty good empirical data from the scores of other countries that ban hate speech (in part through signing on to article 20 of the International Covenant on Civil and Political Rights) that a permissive approach to hate speech is not a prerequisite to functioning democracy. On the contrary, our European friends would argue that democracy is better served by banning such material. Either way, our exceptionalism on this score doesn’t serve us very well.

This isn’t any sort of apology for the killing (especially ugly given Stevens’ dedication to the rebel effort against the Gaddafi regime). In the first instance, it’s a recognition of international realities: do we want to take hits like this so that films like that can be made? In the second, it’s a recognition of where international law is going on

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“University of California Jewish Student Campus Climate Fact-Finding Team” Calls for Banning “Hate Speech”

Fortunately, it appears that UC President Mark Yudof — a noted First Amendment scholar — is not going along with this. Here’s the relevant passage, which the Foundation for Individual Rights in Education rightly condemns:

2) UC should adopt a hate speech-free campus policy.

While many campuses have adopted hate-free campaigns or issued commitments affirming the free and open exchange of ideas while maintaining a civil and supportive community, UC does not have a hate-free policy that allows the campus to prevent well-known bigoted and hate organizations from speaking on campus (aside for time, place, and manner provisions), such as the KKK. UC should push its current harassment and nondiscrimination provisions further, clearly define hate speech in its guidelines, and seek opportunities to prohibit hate speech on campus. The President should request that General Counsel examine opportunities to develop policies that give campus administrators authority to prohibit such activities on campus. The Team recognizes that changes to UC hate speech policies may result in legal challenge, but offer that UC accept the challenge.

Now I’m pretty sure that attempts by the KKK to organize speeches on UC campuses are very rare. But of course if the KKK did show up, I’m pretty sure that the effect would be more of an outpouring of support for Jewish and non-white students, through university officials’ and student groups’ uniformly condemning the speakers, counterdemonstrating, and the like. Indeed, a university campus is a place where counterspeech is especially likely to be effective in combating such overwhelmingly condemned evil speech, both intellectually (in the sense of providing a persuasive response, if any is likely to be required) and emotionally (in the sense of making the targets of the speech feel welcome and valued on campus).

But of course this isn’t about the KKK: […]

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