The official translation is here; thanks to commenter martinned for the pointer.
Archive for the ‘“Hate Speech”’ Category
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 2011Amsterdam, 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.
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.
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.
See this article by Prof. Liaquat Ali Khan (Washburn University School of Law), who also supports broader bans on “defamation of religions”; thanks to Peter Wizenberg for the pointer.
The Daily Mail (U.K.) reports:
A British National Party election candidate [Sion Owens] accused of publicly burning a copy of the Koran was freed today when the charge against him was unexpectedly dropped….It is understood that his release was due to a technicality regarding the Act under which he was arrested and charged.
An unconfirmed source in court today claimed that the permission of the Attorney General must be sought before such a charge can be made.
In the case of Mr Owens, it was not….
[The prosecutor] said … ‘I want the defendant and his legal representatives to be in no doubt that the withdrawal of the charge this morning does not mean that no proceedings will be taken.
‘Almost certainly other proceedings will ensue.’ …
Thanks to Dmitry Ostrovsky for the pointer.
[See UPDATE for later developments.]
The Daily News reports:
An incensed federal judge sentenced a racist Brooklyn woman to indefinite jury duty on Tuesday after she trashed the NYPD and minorities.“This is an outrage, and so are you!” Federal Judge Nicholas Garaufis told the woman, holding up her bile-filled juror questionnaire….
Asked to name three people [the woman] least admired, she wrote on her questionnaire: “African-Americans, Hispanics and Haitians.”
When the judge asked why she answered the question that way, she replied, “You always hear about them in the news doing something.”
She also declared that cops are all lazy, claiming that they sound their sirens to bypass traffic jams….
She’s coming back [today], Thursday and Friday – and until the future, when I am ready to dismiss her,” Garaufis said….
Actually, if this story is accurate, what’s outrageous is the appalling abuse of power by the judge. The woman seems to have reprehensible moral beliefs. This is America, and she’s entitled to possess those beliefs. But government officials are not entitled to punish people for those beliefs, including by requiring them to serve more jury duty as a result of their beliefs.
There’s some suggestion from the story that perhaps the judge believed that the juror was just trying to get out of jury duty, and was insincerely claiming to be racist in order to do that — and that the judge would have reacted the same way had the juror written, say, “I think the justice system is irretrievably racist.” But I see nothing in the story about any finding by the judge that this was the woman’s motive, nor do I see any evidence in the story that would support such a conclusion.
Again, I stress that my criticism applies only if the story is accurate — I’d love to hear more information about whether that’s so. Thanks to Barrett Shipp for the pointer.
UPDATE: The judge has now released the woman from indefinite jury duty: “A Federal judge relented Wednesday and commuted the sentence of indefinite jury duty he had slapped on a Brooklyn woman who presented herself as wildly racist and anti-cop.” The story also reports that the judge “made it clear it wasn’t her views that angered him but what he said was her obvious attempt to weasel out of jury duty by lying. ‘My ruling was not based in any way upon whether or not you held any racist views. It was apparent you did not tell the truth,’ Garaufis told the woman. ‘You were the only juror who indicated that you had every form of bias imaginable. You were lying to the court in order to be excused.’”
I’m puzzled: There are people out there who dislike blacks and Hispanics. How is it that the judge read her mind and figured out that she was lying, and didn’t really hold such views? Again, what if the juror had written, “I think the justice system is irretrievably racist,” which would also make her highly likely to be excused; would the judge have somehow intuited that she was lying, too? What if the juror had written, “I believe in jury nullification,” which would likewise likely lead to the juror’s being excused; would the judge have likewise concluded the juror was lying?
One correspondent of mine defended the judge’s actions because of this item, reported in the original story: “[The judge] landed on the page [in the juror questionnaire] where she had said she had a relative who was a member of the Chinese Ghost Shadows gang in the 1980s, convicted of murder and still in prison. ‘Why didn’t you put ‘Asians’ down also?’ the judge asked sarcastically, referring to her list of least-liked people. ‘Maybe I should have,’ she said.” This, the correspondent said, showed that the juror was “defiant.” But even defiant responses of that sort don’t warrant punishment (this response, even if defiant, would fall far short of punishable contempt). Nor do they show that she was lying about her racism. Here a young woman is being grilled by a federal judge in open court, in front of other jurors, lawyers, and the media about her apparent racism; maybe she was responding with defiance, or maybe she was just agreeing with the judge, or maybe she just didn’t know what to say to that question. Again, this is hardly sufficient evidence that she must have been lying when she said she was racist.
Deutsche Welle has the most detailed account that I’ve seen in any professional media source. Some excerpts:
Wilders is charged with five counts of offending and inciting hatred against Muslims and groups of non-Western origin, particularly Moroccans….He has likened Islam to fascism and made comparisons between the Muslim holy book, the Koran, and Hitler’s “Mein Kampf”….
The specific charges against the parliamentarian stem from comments made in his campaign “Stop the Islamization of the Netherlands”. Wilders could face a 7,600-euro ($10,300) fine or up to a year in jail if found guilty.
This happened in American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART) (E.D. Mich., decided today). The ad said, “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers!,” and included the Web site address “RefugeFromIslam.com.” SMART — the Detroit-area public transportation system — rejected the ad, arguing that its policy was not to include “Political or political campaign advertising” or “Advertising that is … likely to hold up to scorn or ridicule any person or group of persons.”
The court disagreed with SMART, and granted the advertisers’ motion for a preliminary injunction ordering SMART to allow their ad. The court concluded that the advertising space is likely not a “designated public forum” but rather a “nonpublic forum.” (This is likely a labeling mistake, I think, since under the Supreme Court’s caselaw the forum would probably be labeled a “limited public forum,” which is sometimes seen as a variant of a “designated public forum.” But not much turns on this, since the Court’s most recent decisions set up the same rule for limited public fora and for nonpublic fora.) In a nonpublic forum or a limited public forum, a speech restriction is constitutional if it’s viewpoint-neutral and reasonable. But the court concluded:
There is a strong likelihood that Plaintiffs could succeed in demonstrating that Defendant’s decision not to run the advertisement was not reasonable, but rather arbitrary and capricious. Defendants argue that their policy is viewpoint neutral. However, there is nothing in the policy that can guide a government official to distinguish between permissible and impermissible advertisements in a non-arbitrary fashion. Defendant Beth Gibbons testified that there were no other written guidelines or manuals available, aside from the guidelines found in the contract between SMART and CBS. She further testified that, while the atheist advertisement was purely religious, rather than political, there was no manual or language that set forth what distinguished a political advertisement from a religious advertisement.Under Sixth Circuit law, “[t]he absence of clear standards guiding the discretion of the public official vested with the authority to enforce the enactment invites abuse by enabling the official to administer the policy on the basis of impermissible factors.” United Food & Commercial Workers Union, Local 1099, et al. v. Southwest Ohio Reg’l. Transit Auth., 163 F.3d 341, 359). “[T]he limits the [government] claims are implicit in its law [must] be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” Id. (internal citations omitted).
Continue reading ‘Bus System Barred (at Least Temporarily) from Excluding “Leaving Islam?” Ad’ »
The Mansfield North Central Ohio Tea Party Association was planning to have a meeting featuring an anti-Islam (and, by some accounts, anti-Muslim) speaker. As usual, the meeting would be at the Mansfield High School in Mansfield, Ohio: The high school opens its meeting rooms to “any recognized political party or organization for the purpose of conducting discussions of public questions and issues,” and the Tea Party Association was taking advantage of this limited public forum.
But today’s event was kicked out of the high school, and had to be moved to another venue. The Mansfield News Journal reports that this move happened because of the school district’s “safety concerns.” “Mansfield City Schools Superintendent Dan Freund … said that, after consulting with Mansfield City Police, the school decided it could not guarantee public safety at a Mansfield North Central Ohio Tea Party Association event scheduled for 7 p.m.” And Freund made clear that the reason for the cancellation was “safety concerns and not … the presumed content of the scheduled speaker’s message.”
Fortunately, it looks like the Tea Party Association managed to line up a new meeting place, even at this short notice; and it may be that the speech won’t be much disrupted, though this sort of change of location often causes some loss of audience. But the broader point is much more troubling: Yet again, a talk that’s critical of radical Islam — and perhaps of Islam generally — has been kicked out of a location because of a fear of violence (whether stemming from specific threats related to this talk, or from threats made about other events in the past). Next time, the exclusion might interfere considerably more with the speech, especially if other government and private organizations follow suit.
Plus a powerful symbolic message is sent to those who are happy whenever such speech is interfered with: Threats of violence get results. Behavior that gets rewarded gets repeated.
The Cleveland chapter of the Council on American-Islamic Relations had also asked that the speech be canceled, and the NAACP asked “for a ‘rigorous review’ of the school’s facilities use guidelines and policies before an event scheduled for Mansfield Senior High School community room at 7 p.m. today.” But, short of closing the forum altogether, the school district can’t just exclude speakers on the grounds that they express anti-radical-Islam, anti-Islam, or anti-Muslim viewpoints, even when it comes to speech on government property: In a limited public forum such as this one, any limits on speech must be viewpoint-neutral. (Even exclusion based on fear of violent reaction might well be unconstitutional, even in a limited public forum, see Sonnier v. Crain (5th Cir. 2010); but CAIR and NAACP, it seems to me, spoke out before the cancellation of fear-of-violence grounds.) [UPDATE: I had thought this clear from the original post, but just to make it extra clear: CAIR and NAACP aren't the thugs here, though I think that to the extent they are asking for a viewpoint-based exclusion of the group, that is inconsistent with the First Amendment limited public forum caselaw. The thugs are the people whose past violence and threats of violence -- whether any specific threats were made in this case, or whether the government officials were simply extrapolating from past cases -- leads to restriction on speech that they oppose, because government officials and others come to fear a violent response.]
Note that the Mansfield policy starts out by saying that “The Board of Education believes that the grounds and facilities of this District should be made available for community purposes, provided that such use does not infringe on the original and necessary purpose of the property or interfere with the educational program of the schools and is harmonious with the purposes of this District.” But this doesn’t appear to be a limitation on the openness of the facilities to political groups; the statement of “belie[f]” is followed by an express command that “Facilities shall … be made available to … any recognized political party or organization for the purpose of conducting public discussions of public questions and issues.” And the board of education doesn’t seem to see the policy as authorizing the exclusion of viewpoints merely because the board disagrees with them. The board stressed that the exclusion was based not on the content of the speech as such, but because of “safety concerns” (albeit ones that flow from the content). Note also that the policy forbids “rais[ing] funds for political purposes,” and the event flyer apparently said that people were encouraged to donate; but that was not the basis for the board of education’s decision (and presumably if the board had insisted that no fundraising take place, the Tea Party Association might well have agreed).
The opinion is Zamecnik v. Indian Prairie School Dist. #204 (decided today) (Posner, J.), and it reaffirms the panel’s decision in an earlier phase of the case.
On balance the opinion seems slightly more speech protective than the earlier one, because it doesn’t rely on Morse v. Frederick (as the earlier opinion did in some measure), and because it expressly notes that the precedents do not support “a generalized ‘hurt feelings’ defense to a high school’s violation of the First Amendment rights of its students.” And though the court acknowledges that Tinker v. Des Moines Independent Community School District authorizes the restriction of speech when there’s a substantial likelihood of a substantial disruption, it concludes that on these facts the likelihood wasn’t demonstrated. So it’s a mild win for student speech in K-12 schools, though given Tinker any broader wins would be unlikely.
The opinion also expresses some skepticism about the report by the school district’s expert, which purported to show that the slogan would indeed cause substantial disruption. School district lawyers — and experts — should note the court’s reasoning for the future.
Nina Shea (The Corner) reports:
Today, Elisabeth Sabaditsch-Wolff, a young Viennese mother, was convicted under section 283 of the Austrian penal code of vilifying religious teachings for her negative commentary on Islam in a lecture before a political-party gathering in Vienna; she was fined 480 Euros. Sabaditsch-Wolff, a diplomat’s daughter, had lived and worked for several years in various Middle Eastern Muslim countries, and at the lecture in question spoke critically of the treatment of women and the practice of jihad in Iran, Libya, and other places that she had lived in. The court found that Austria’s free-speech guarantees protected her from hate-speech charges.However, it seems the case turned on the judge’s reasoning that her statement that Islam’s prophet Mohammed was a “pedophile” was defamatory since his child bride Aisha (age six at the time of marriage and nine at the time it was consummated) remained his wife when she turned 18. The case was brought by prosecutors after complaints by a mainstream Austrian weekly magazine that had secretly taped and then wrote about her lecture. She plans to appeal.
If anyone has a pointer to the judge’s written opinion — preferably an English translation, but I’d be happy to try to generate one from the German original — please let me know.
Thanks to commenter Neo for the pointer.
Here are the views that it is a crime in Denmark to express (according to Danish Free Press Society and IceNews):
Of course Lars Hedegaard shouldn’t have said that there are Muslim fathers who rape their daughters when the truth instead seems to be that they make do with killing daughters (so-called honour killings) –- and moreover turn a blind eye to rapes by uncles.
According to Langballe, Danish law does not allow truth as a defense; it simply provides, “Whoever publicly … issues a … communication by which a group of persons are threatened, insulted or denigrated due to their race, skin colour, national or ethnic origin, religion or sexual orientation is liable to a fine or incarceration for up to two years.” So the quoted views are banned even if one can show that there indeed are such Muslim fathers, or that such behavior is more common among Muslims than among others.
Because the law does not recognize the defense of truth, Langballe pleaded guilty; you can read his statement here. This happened last month, but I just learned of it, and thought it important to note it.
The person about whose statement Langballe was speaking — Lars Hedegaard, president of the Danish Free Press Society — “is facing criminal trial [scheduled to start Jan. 24, 2011] followed by a libel suit.” According to an opinion piece in The Spectator,
[Hedegaard] stated about Muslim ‘honour’ violence within families: “They rape their own children.” In vain did Hedegaard explain the following day that obviously he had not meant by this that all Muslims engage in such practices, any more than saying ‘Americans make good films’ means that all Americans make good films; in vain did he adduce copious evidence of concern — including from Muslim victims themselves — about the amount of sexual and ‘honour’ violence, including rape and incest, within Muslim families.
Unfortunately, I could find little seemingly objective news reporting of these incidents in the English-language press. (I found a few, but they were quite short.) If you know of some — or can translate some foreign-language sources — I’d love to see them.
So a two-judge majority on a Sixth Circuit panel held in Defoe v. Spiva held, arguing that:
A public high school that can put reasonable limits on drug-related speech by students [referring to Morse v. Frederick, which upheld such restrictions -EV] can put reasonable and even-handed limits on racially hostile or contemptuous speech, without having to show that such speech will result in disturbances. Expressions of racial hostility can be controlled in the public schools even if students in the attacked racial group happen to be mature, goodnatured, and slow to react. Schools are places of learning and not cauldrons for racial conflict. Moreover, expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.
Under Tinker v. Des Moines Indep. School. Dist (1969), all student speech — whether racially offensive or not — could be restricted if there is substantial reason to think that the speech will likely cause a material disruption. But the panel majority here concluded that “racially hostile or contemptuous speech,” including the display of a confederate flag, can be punished even without such a showing of likely disruption.
I think this is wrong, for the reasons I gave when criticizing a similar Ninth Circuit panel majority opinion about anti-gay speech. (My summary of my argument was that the decision “is a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.”) Nor do I think that Morse v. Frederick, despite its flaws, authorizes such restrictions; see here for an extended discussion, but the short summary is that both the majority and the Alito/Kennedy concurrence specifically limited Morse to speech that did not express a “political … message”:
[From the majority:] Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession.[From the Alito/Kennedy concurrence:] I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”
And the wearing of a confederate flag does send a political message, and certainly a comment on a “political or social issue” — whether the message is that the Confederacy was right to secede, that the South should be proud of its Confederate heritage, or that white supremacy is a good idea. The intended and likely understood message may vary from context to context, but the message remains political.
Fortunately, there’s a petition for rehearing en banc pending before the Sixth Circuit, and I hope the court does agree to rehear the case en banc. For more on the legal arguments in favor of rehearing, see the national ACLU’s and the Tennessee ACLU’s amici curiae brief in support of rehearing, which strikes me as quite correct. (My one quibble is that I’m not positive that Justice Alito’s concurrence is necessarily the “controlling opinion” in Morse for Marks v. United States purposes), but I think that Chief Justice Roberts’ majority opinion is consistent with Justice Alito’s concurrence on this point, and the concurrence certainly should be seen as important to understanding that majority opinion.) See also this op-ed by lawyers for the national ACLU and the Tennessee ACLU.
Note, by the way, that the majority opinion in the Sixth Circuit case is the one that is labeled a concurrence by two judges. As the ostensible panel opinion says, “To the extent that there are any differences between this opinion and the concurring opinion, the concurring opinion shall govern as stating the panel’s majority position.” My criticisms are of this concurring opinion.
N.H. Stat. § 644-4 makes it a misdemeanor to, among other things, “[m]ake[] repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another.” In re Alex C. (N.H. Sup. Ct. Nov. 30) upheld the conviction of a minor for sending 20 instant messages in the span of an hour to a friend’s mother, apparently using the terms “fucking idiots,” “bitch,” “fatshit,” “cunt,” and “faggot.” (The mother was using the daughter’s account at the time, because the daughter had run away from home and the mother was hoping “one of her daughter’s friends might respond with information that would help locate her daughter.”) The defendant’s legal claim was that conversations within one IM conversation didn’t count as “repeated,” but the New Hampshire Supreme Court rejected that.
The statute, though, would reach considerably beyond situations such as this one. First, it bans “repeated communications,” which might cover not only barrages such as the twenty messages here but even just a couple of communications. The opinion defines repeated as “renewed, frequent, or constant imparting of a message by any method of transmission,” and “constant” would seem to suggest a stream of communications; but “renewed” is given as an option, and the literal meaning of “repeated” does seem to cover even a small number of communications.
Second, it isn’t limited to personal insults. “Offensively coarse language” about someone other than the recipient would also qualify.
Third, it includes statements meant to do many things, including to annoy — for instance, to inform people of some alleged misbehavior on someone’s part, and at the same time annoy the misbehaving person. The statute requires only “a purpose to annoy,” not a sole purpose to annoy (and of course nearly all communication has at least some purpose other than to annoy, such as to express oneself, or make the subject feel guilty and not merely annoyed).
Fourth, when the statute is applied beyond unwanted telephone calls, it can’t be defended on grounds specific to telephone calls, such as that the calls can wake someone up during the night (that, I take it, is the justification for the “at extremely inconvenient hours” clause).
Fifth, and most important in my view, it isn’t limited to “person-to-person messages.” The term “communicates” is later defined as “to impart a message by any method of transmission, including but not limited to telephoning or personally delivering or sending or having delivered any information or material by written or printed note or letter, package, mail, courier service or electronic transmission, including electronic transmissions generated or communicated via a computer.” “[A]ny method of transmission” might include a communication said to many people in a chat room, or posted as a blog post (or a comment), or for that matter written in a newspaper (though presumably not a mainstream newspaper, which generally doesn’t include “offensively coarse language”). See, e.g., State v. Ellison, 178 Ohio App. 3d 734 (2008) (reading a similarly worded statute to cover postings on one’s own MySpace page, though reversing the conviction because in that instance the “purpose to harass” was not shown); Welytok v. Ziolkowski, 752 N.W.2d 359 (Wisc. App. 2008) (reading a similar definition of “harassment” to cover e-mails about a person, and not just to the person).
Thus, the statute covers, among other things,
- Several blog posts using “offensively coarse language” about a local politician, businessman, activist, professor, and so on said with a “purpose to annoy” the subject or his friends.
- Several blog posts or alternative newspaper articles using “offensively coarse language” about a race, religion, or political movement said with a “purpose to annoy” members of the group.
- Several facebook posts or chat room messages using “offensively coarse language” to condemn an ex-lover who has, say, cheated on the author (or otherwise allegedly mistreated the author), said with a “purpose to annoy” the ex-lover.
- Several facebook posts using “offensively coarse language” to condemn some service provider — lawyer, doctor, plumber, or what have you — for that provider’s alleged mistreatment or poor service, said with a “purpose to annoy” the service provider.
If the statute were limited to one-to-one messages sent to a particular person, it would be less troublesome (see Parts II.E and II.F of this article). As I’ve argued before, restrictions on one-to-many speech that offends some listeners interfere more with public debate than do restrictions on one-to-one speech that offends the one listener (or one-to-few speech that offends all the listeners); the latter speech is likely to only offend, not persuade or enlighten, while the former may well do both. But even if the law were limited to one-to-one speech, I think it would pose substantial vagueness problems, stemming from the uncertainty of the term “offensively coarse.” A statute giving recipients of such one-to-one messages the power to order the sender to stop (with exceptions for communications to government officials or candidates, and perhaps to businesses) should avoid those problems; the Supreme Court’s Rowan v. U.S. Post Office Dep’t (1970) decision suggests such a statute is constitutional.
As it happens, the New Hampshire Supreme Court struck down such a stop-contacting-me law, as unconstitutionally overbroad, without mentioning Rowan; I think that might have been a mistake. But if such a law (which was another portion of the harassment statute I discuss here) is overbroad, I would think that the ban on repeated “offensively coarse” communications would be, too, especially when it covers “any method of transmission,” including ones that reach many people and not just the one offended person. The defendant in In re Alex C. didn’t seem to have raised the overbreadth objection (at least judging from the New Hampshire Supreme Court’s opinion), so perhaps the court was right in not dealing with that objection in this particular case. But the statute remains, in my view, unconstitutionally overbroad, and a threat to First-Amendment-protected speech.
KOCO-TV reports,
A small-town bank in Oklahoma said the Federal Reserve won’t let it keep religious signs and symbols on display.Federal Reserve examiners [who came for a regularly scheduled inspection visit] deemed a Bible verse of the day, crosses on the teller’s counter and buttons that say “Merry Christmas, God With Us.” … inappropriate. The Bible verse of the day on the bank’s Internet site also had to be taken down….
Specifically, the feds believed, the symbols violated the discouragement clause of Regulation B of the bank regulations. According to the clause, “…the use of words, symbols, models and other forms of communication … express, imply or suggest a discriminatory preference or policy of exclusion.” …
Sen. Jim Inhofe and Rep. Frank Lucas, both of Oklahoma, disagreed, in a press release and letter to Fed Chairman Ben Bernanke.
It seems to me that the Fed action is a pretty clear First Amendment violation. Businesses may indeed be barred from stating that they will not engage in commercial transactions with members of certain groups; that’s a somewhat unusual but well-settled aspect of First Amendment “commercial speech doctrine,” which is more properly thought of “commercial advertising doctrine.” (See Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rels. (1973), which has been cited favorably by the Court even in more recent commercial speech cases.) But businesses retain a First Amendment right to express their views, including even views that might be actually seen as insults to particular groups, see, e.g., Sambo’s Restaurants, Inc. v. City of Ann Arbor (6th Cir. 1981). And businesses certainly retain a First Amendment right to say things that might simply be seen as expressing endorsement of a particular religion.
Note, incidentally, that the bank regulators’ actions, if accepted, would mean that a vast range of businesses — not just banks — would be barred from putting up religious symbols. The antidiscrimination rules applicable to banks are very similar to the antidiscrimination rules applicable to a wide range of businesses under federal and state laws.
Thanks to David Cavanagh for the pointer.
UPDATE: Well, that was quick — The Oklahoman reports that “The Christian-themed decorations are back at Payne County Bank after federal regulators relented in their demand that religious items in the bank’s lobby and website must be removed.” But the statement from the Kansas City Fed chairman is a bit confusing. It says,
Regulation B, as interpreted by the Board of Governors of the Federal Reserve System, does not apply to jewelry or other personal items displayed in the workplace.
But the materials, especially on the Web site, don’t seem just like “personal items” put up by employees -– they seem like statements from the bank management itself. Is the Fed’s claim that employees may put up their own decorations and statements, but that the bank can’t put up decorations and statements endorsed by the management? Or is the Fed acknowledging that bank management can also put up religious statements endorsing a particular religion, which is how the bank has interpreted the Fed’s actions?
The Lansing State Journal has details. (The decision not to charge the man happened in September, but I just heard about it now, and the newspaper apparently has extra details that weren’t available then.) The bottom line as to the charges:
The man didn’t damage anyone else’s property. The Quran he burned was his own. He didn’t make physical contact with another person. So proving he had threatened to do one of those things, and that there was a reasonable expectation that he would, would have been the only way to charge him under Michigan’s ethnic intimidation law.
I’m inclined to think that this is right. Burning a Koran as such is not a crime. Burning it in a context where it would reasonably be seen as a deliberate and particularized threat of future crime against some particular victim might well be a crime, and would fit within the First Amendment exception for threats. But I suspect that in context seeing a burned Koran on the doorstep of a mosque would be seen as an expression of hostility and hatred, but not a specific threat. In any case, the story struck me as worth noting.
The story also notes, “There was one other crime the man might have been charged with: littering. East Lansing officials decided not to try, because it ‘would have trivialized the offense,’ said assistant city attorney Tom Yeadon.” My sense is that there would also have been a possible First Amendment problem if the littering prosecution was motivated by the message. I doubt that, say, the prosecutor would prosecute someone for littering if he left hostile anti-NRA messages on the doorstep of the NRA office, or hostile anti-American messages on the doorstep of an American Legion office. If so, then the prosecutor can’t selectively prosecute those who supposedly litter (if this is indeed littering) using anti-Islam messages.
Newsday reports:
A group of teens spotted Sunday evening slapping up stickers along a Bellmore street [including on a lamp post and a Chamber of Commerce sign] could be charged with felonies for posting white supremacist messages and images ….One sticker, photographed and removed by police, reads “White Pride World Wide.” Another says “Don’t Blame Me, I Voted for Hitler.” A third shows a hand making an obscene gesture over a Star of David….
Whoever posted it could be charged under a state law prohibiting the posting of images of swastikas or nooses. The first-degree harassment charge carries a maximum sentence of 1 year in jail….
Putting stickers on lampposts and other signs might well be illegal, and could be punished under content-neutral laws or city ordinances prohibiting such attachment of stickers to city property or to other people’s property. Likewise, targeting property owners for property crimes based on the owners’ race, religion, and the like might lead to enhanced punishments.
But the police theory here seems to be that the speech is punishable precisely because of the message that it conveys; the relevant statute is apparently N.Y. Penal Law § 240.31:
Continue reading ‘Coming Hate Speech Prosecutions in New York?’ »
The Detroit News reports:
The family of a former Warren Consolidated Schools fifth-grader is suing the district, claiming the African-American girl was the victim of racial discrimination when excerpts from a book about slavery ["From Slave Ship to Freedom Road" by Julius Lester] containing “outrageous statements” — including the N-word — were read aloud in class…. [The passages that were read included]: “Step right up! New shipment of n—–s just in.” And, “Nine months after you buy one of these n—–s, you will have a plantation full of n—-r babies,” according to the lawsuit.Novi-based attorney Scott E. Combs, who is representing the family, says the incident violates Michigan’s Elliott-Larsen Civil Rights Act, which bars employers — and schools — from discriminating on the basis of factors such as religion, color, age, height and weight. The family is seeking damages exceeding $25,000.
Note that the Act applies to private schools as well as to public schools; as applied to education, it is not just the government’s attempt to control what is taught in its own schools.
I doubt that the lawsuit will succeed, since I suspect that Michigan courts will not find the material to be “severe or pervasive” enough to create a racially offensive educational environment for the plaintiff and for a reasonable person. This would be especially so if they required the environment to be “severe and pervasive” enough to be actionable (an emerging rule used in some recent educational harassment cases, though workplace harassment cases generally require only that the speech or conduct be “severe or pervasive”). But it’s hard to tell for sure, given the vagueness of the terms “severe,” “pervasive,” and “racially offensive educational environment” (even when limited to what a “reasonable person” would find to be such an environment).
From the Livingston (Mich.) Daily:
Howell Public Schools Superintendent Ron Wilson on Thursday said high school teacher Jay McDowell was disciplined [by being suspended for one day without pay] after it was determined McDowell violated a student’s First Amendment rights and significantly violated a district policy.“The student was speaking out on being offended by the gay and lesbian lifestyle because it’s against his religion. The teacher said that wasn’t appropriate,” Wilson said.
The student, 16-year-old junior Daniel Glowacki, was then ejected from McDowell’s economics class [and given a reprimand that would go on Glowacki's permanent record], Wilson said, along with another student after Glowacki and McDowell argued about another student wearing a belt buckle featuring the Confederate Flag.
The district Oct. 20 was taking part in a national “Spirit Day” — a Gay and Lesbian Alliance Against Defamation event aimed to raise awareness of anti-gay bullying after the recent suicides of six gay teens across the United States who had been harassed. Students in support of the day wore purple T-shirts that read “Tyler’s Army,” for one of the six who died. Others wore shirts featuring a rainbow, which signifies gay pride.
Daniel Glowacki … questioned why it was allowed for students to show their support for the gay community and not allowed for a student to wear her Confederate flag belt buckle….
[Wilson said,] “All the student was doing was voicing an opinion. The same thing would have been done had the student been on the other side. As superintendent, it’s my responsibility to foster fair, respectful treatment of all staff and students, and the teacher didn’t do that.” …
This apparently happened in July, but I only heard about it a few weeks ago. Here is part of a summary from an advocacy group, the European Centre for Law and Justice:
Spain’s Ministry of Industry, the government department responsible for regulating telecommunications and audiovisual media, fined Intereconomía, a Christian-inspired multimedia communication group, which owns among other things, ALBA – a Christian-inspired weekly. The media group was fined 100,000 Euros for airing a promotional advertisement in defense of traditional family. The specific advertisement came as part of a larger public campaign defending family values throughout the country. The Government claimed that the advertisement, which aired approximately 273 times, violated a broadcasting law that prohibits advertisements from discriminating based on race, sex, religion, nationality, and opinion. The advertisement, however, showed only actual footage of homosexuals marching and dancing in Gay Pride Day parades and asked the simple and poignant questions: “Is this the type of society you want?” Are these the examples you want for your children?” “Proud … of what?” The ad also sought to oppose Gay Pride Day by recognizing the 364 other days of pride for heterosexuals.
I couldn’t find any authoritative-seeming English language reports related to this, but I’m hesitant to rely too much on such accounts. Still, someone I consulted here at UCLA reports that the account seems largely consistent with reports in El Pais, a prominent Spanish newspaper, in particular this one and this one. If any of you folks can confirm or deny the accuracy of the ECLJ account I quote above, provide more information about more recent developments, or (best of all) point me to the text of the actual Spanish government decision, I would much appreciate it.
