The Volokh Conspiracy

Today’s Kentucky Court of Appeals decision in Mendez v. Univ. of Kentucky Bd. of Trustees contained an odd bit of analysis that I thought I’d mention. Here’s the fact pattern:

The precipitating event leading up to the cessation of [Fullmer] Mendez’s employment at the College of Health Sciences occurred on March 27, 2006. One morning he was assigned to work on the computer of Dr. Susan Effgen, a professor at the College. She had experienced repeated problems with her computer. After looking at the computer, Mendez decided that he could not fix it until the next day. He informed her and went to lunch. When he returned from lunch, [Bambang] Sutardjo, as his supervisor, asked about the repair of the computer. After Mendez told him that the computer would not be fixed until the next day, Sutardjo told him to finish the work on the computer now because Mendez did not have the authority to determine turnaround time. Mendez replied that he was not trying to create new policy. Then, Sutardjo said he did not want Mendez to work in the department any longer.

But Mendez proffers a different reason for his dismissal. He maintains that the reason for his termination was not based on his failure to work on Effgen’s computer in a timely fashion, but rather, his termination resulted from a disagreement with Sutardjo, which Mendez believes was the cause of his termination. The parties’ religious backgrounds are as follows: Mendez was born and raised Catholic, and Sutardjo was a member of the Islamic religion. Mendez knew Sutardjo’s religion because at one time he had been invited to Sutardjo’s home for dinner at the conclusion of Ramadan. Sutardjo intimated that while he was not sure of Mendez’s religious beliefs, he thought that he was Christian or Catholic.

According to Mendez’s testimony, although he does not cite to the record in providing these details, a few weeks before his assignment ended, Sutardjo and Dr. Maria Boosalis, the Director of the Department of Clinical Nutrition, were having a discussion concerning the publication of cartoons about the prophet Mohammed in the Danish press, and the protests in Europe that occurred after the publication of the cartoons. Mendez claims that Sutardjo asked his opinion about it. Mendez says that he responded that the Danish press was free to publish what they wished. Mendez then describes Sutardjo as being upset during the conversation, but he acknowledged that no mention of either party’s religion was made, nor did either party attack the other during the conversation. After the discussion, again without citation to the record, Mendez stated that the relationship between them soured, and their interactions were only about business. Yet, Sutardjo did not increase Mendez’s workload, although he required Mendez to complete his work assignments within a strict time period. Mendez, however, did not find the requirement to be unreasonable.

Now there’s obviously a factual dispute as to the motivation for Mendez’s firing, and it may well be that he was fired for reasons quite unrelated to the discussion of the cartoons. (Recall the following cautionary joke sometimes said among us Jews: A Jew goes to an interview for a job as a radio announcer. Later in the day, a friend asks whether he got the job; the interviewee shakes his head. “Why not?,” the friend asks. “An-an-an-ti-se-se-se-mitism,” the man responds.) And it’s also possible that Mendez’s claims, brought not under 42 U.S.C. § 1983 — which is generally used for claims that the plaintiff was fired because of his First-Amendment-protected speech — but under Kentucky’s tort of wrongful discharge in violation of public policy, would be legal losers. The court suggests this might be so, though its analysis is not entirely clear.

But what puzzles me is this passage:

["]In order to state a retaliation claim under the First Amendment … a public employee plaintiff must demonstrate that the speech involved matters of public interest or concern. Second, the plaintiff must show that her interest in addressing these matters of public concern outweighs the interest of her employer ‘in promoting the efficiency of the public services it performs through its employees.’”

Mendez has not provided any support that the conversation, the nature of which is disputed, was constitutionally protected, or that it caused an adverse employment action, or even that it was a substantial and motivating factor in his termination. This factor is bolstered even more by the fact that he has not shown that the conversation in question concerned matters of public interest or that the interest in addressing these matters outweighs the interest of his employer in providing public service through its employees….

It seems to me quite clear that a discussion of the Mohammed cartoons, and the protests surrounding them, “concern[s] matters of public interest” and is thus potentially protected by the First Amendment against employer retaliation. (Recall that speech on matters of purely private concern is generally protected against the government as sovereign, but not against the government as employer.) By way of comparison, see Rankin v. McPherson (1987), which held that an employee’s saying to a coworker, right after hearing that President Reagan had been shot, that “If they go for him again, I hope they get him,” is speech on a matter of public concern. To be presumptively protected against government employer retaliation, speech needn’t be said to the public at large, nor need it be expressly political in nature. Discussions of public issues with coworkers qualify for presumptive constitutional protection (unless they’re said pursuant to the coworkers’ duties, which this wasn’t), though this presumption could be rebutted under the “Pickering balancing test” if the tendency of the speech to disrupt the workplace exceeds its constitutional value.

So I think the court of appeals was wrong to express doubt on this score. Again, perhaps Mendez should lose at trial on his claim, or perhaps there’s some other legal reason why he shouldn’t even get to trial. But the claim that Mendez “has not shown that the conversation in question concerned matters of public interest” strikes me as unsound — the articulation of the conversation, as Mendez reports it to be, strikes me as sufficient on that score.

Note that I don’t read the court’s statement that “the nature of [the conversation] is disputed” as meaning that Mendez loses because it’s not clear what, as a factual matter, was said. At this stage of the case — where the court is reviewing the trial court’s grant of summary judgment to the university — the court needs to assume that the facts as claimed by Mendez are accurate.

The cartoon — Mohammed on a couch, complaining that “OTHER prophets have followers with a sense of humour!” (apparently referring to the controversy over Everybody Draw Muhammad Day — is here; it was published in the Mail & Guardian last Friday. The South African Council of Muslim Theologians tried to enjoin the publication of the cartoon, but the court didn’t grant an injunction. For more on the story, see this column by the Mail & Guardian‘s editor; the cartoonist is promising a follow-up cartoon tomorrow.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. For my earlier posts on the original Muhammad cartoons controversy, and follow-ups to it, see here.

UPDATE: I’m sorry to say that the Mail & Guardian has apologized, and basically promised not to do it again, certainly during “the review period” but I suspect afterwards as well:

Continue reading ‘Latest Mohammed Cartoon Controversy, this Time in South Africa’ »

The St. Cloud Times reports, and includes the letters from the prosecutors, one from the Stearns County and the other from Benton County. (Too bad more news outlets don’t include or point to the original documents this way.) Minnesota Public Radio has more factual details, noting that the “cartoons [were] posted on a couple of utility poles.”

The materials apparently depicted, among other things, “Muhammad defecating on the Koran, Mohammed discussing engaging in sexual relations with a child (purportedly his wife), and Mohammed engaging in sexual relations with animals.” There was apparently some argument that those images constituted obscenity, because of their sexual or excretory content, but the prosecutors rejected this. One concluded that, “When viewed as a whole, those images do not appear to have been distributed or displayed for sexual gratification or sexual interest,” and therefore the elements of the obscenity weren’t met. The other concluded that, even if the material “appeals to a prurient interest in sex and depicts sexual conduct in an offensive manner,” it nonetheless had “political … value” and thus couldn’t constitute obscenity.

The Stearns County prosecutor also rejected the theory that the pamphlet constituted a “hate crime.” (The other prosecutor didn’t discuss this.)

There is no specific crime in Minnesota called a ‘hate crime.’ Rather, there are specific offences, including Assault, Criminal Damage to Property, and Stalking/Harassment, that when committed because of the victim’s race, religion, sexual orientation, etc., carry enhanced penalties. Since this individual’s conduct does not rise to the level of [those offenses], none of the enhanced penalties would apply in this case.

The Benton County prosecutor likewise rejected the theory that the pamphlet constitutes criminal defamation. (Again, the other prosecutor didn’t discuss this.)

[A state] statute renders it a crime to communicate … anything which exposes a person, class or association to hatred, contempt, ridicule, degradation or disgrace in society. While the actions of the suspect in this case may constitute a violation of the statute, the statute itself is probably unconstitutional and void…. [The statute] is an unconstitutional content-based restriction on free speech and is overly broad [because it extends outside the unprotected categories of speech -EV].

The prosecutor, did however, note that the posting may violate “city … ordinances prohibiting posting of documents on utility poles and the writing or drawing of graffiti on any surface of any public or private property”; it is apparently up to the St. Cloud city attorney’s office to decide whether to prosecute the person under those ordinances.

This legal analysis strikes me as quite correct. It sounds like the speech here was juvenile, vulgar, and needlessly offensive. Though I think that polite, reasoned, and well-founded criticism of religions is eminently proper, this seems to be largely unsubstantive and needlessly rude. Nonetheless, the First Amendment protects our right to publicly convey our ideas even when they are unsubstantive and rude.

St. Cloud Mayor Dave Kleis apparently “thinks the man should face legal consequences. ‘When people do something like this, they’re doing it because they want to create some kind of reaction,’ Kleis said. ‘So they should be ready for the consequences.’” Likewise, “Mohamoud Mohamed, who leads the St. Cloud Area Somali Salvation Organization, said the cartoons demonstrate a violent mindset and that the city’s sizable Somali population would be disappointed if the man avoids charges.” I think the more legally accurate view (setting aside the prosecution under content-neutral bans on posting of documents on utility poles) is the one expressed by the Stearns County prosecutor:

Regardless of the community reaction, the State cannot criminalize a political message…. While I find that the poster’s pamphlet is reprehensible, offensive, and demeaning, the United States Constitution gives him the right to share his viewpoint with others.

Thanks to the First Amendment Law Prof Blog for the pointer.

Follow up to Eugene’s post on the Muhammad Cartoon attack … see Bruce Bawer’s article in City Journal, “While Europe Sneered.” And although I received a comp copy of the Voltaire Project printing of the cartoons, I have ordered a paid copy and have requested that my school’s library order the book.  Please consider doing the same.  When I am in Paris, I make a point of visiting the Pantheon to lay flowers at Voltaire’s tomb.

Now I have a question … I have been finishing a section of my book on UN-US relations on the US-Egypt expression-religion provision offered by the Obama administration a few months ago as part of its “engagement” policy in the UN Human Rights Council.  I am critical, to say the least, as will surprise no one.  I have also read lots and lots and lots on the whole religion-speech controversy in the UN, going back to its origins up to its current argument.  But I want to be sure to cover the bases.  What would readers point me to as the best articles or discussions on this issue, specifically at the UN?  Academic or otherwise?

Also, side note, does anyone know who or what office at State was responsible for coming up with this language?  Was it developed out of the UN mission?  I thought it was the assistant secretary for human rights, democracy, labor, but perhaps I am wrong.  What office was responsible for developing this language?

The most recent instance of self-censorship of the Mohammed cartoons, because of fear of violent reaction, should remind us all of the importance of Voltaire Press’s Muhammad: The Banned Images.

Please support Voltaire Press’s project by (1) urging your library (public or university) to buy the book so as to make it more available to the public, (2) buying the book yourself, or (3) publicizing the book. I sadly note that a Lexis search for “Muhammad: The Banned Images” found no newspaper stories about the book.

UPDATE: Thanks to commenter Mark J. Nelson, I have learned that the book is owned by the university libraries at Stanford, Boston College, George Mason, and Franciscan University of Steubenville, Ohio, and by the public library in Princeton, New Jersey.

The Index of Censorship ran an interview with Jytte Klausen, which was titled (at least in the online version) “See No Evil,” and began this way:

Jytte Klausen talks to Index on Censorship about her new book on the Danish cartoons crisis and discusses why it was published without any illustrations

Jytte Klausen’s book The Cartoons That Shook the World (published by Yale University Press) is the first scholarly examination of the notorious controversy that erupted in 2006. Klausen is a respected scholar: she won the Carnegie Scholars Award for her research on Muslims in Europe and is professor of comparative politics at Brandeis University in the US. Three years ago, she set out to unravel the genesis of the debacle and to analyse the cartoons and their impact. Last summer, several months before publication, Yale University Press unexpectedly took the decision not to publish the cartoons in her book. After reading Klausen’s manuscript in the spring, the director of the press, John Donatich, was ambivalent about republishing the cartoons: on grounds of taste, offence and the possibility that it might reignite the conflict. He also noted that the cartoons were available for readers to see online. He consulted Yale University who assembled an advisory panel of diplomats, academics and US and UK counter-terrorism officials who advised that there was a strong chance of violence breaking out if the cartoons were published. Klausen was told that she could only read the gagging order. Not only were the cartoons removed from the book, but historic illustrations of Mohammed that Klausen had wanted to include to illustrate her thesis were also omitted. When the story leaked to the American press last summer, Yale was widely criticised for undermining academic freedom. Christopher Hitchens described it as “the latest and perhaps the worst episode in the steady surrender to religious extremism”. In a statement, Yale University Press defended its decision with reference to the expert panel’s advice “that there existed a substantial likelihood of violence that might take the lives of innocent victims”. John Donatich took full responsibility for the final decision, but there have been concerns at the university’s intervention in the press’s independence.

But the interview was published without any of the cartoons that were the subject of Klausen’s book, and of the controversy surrounding the book. The reason, given in the statement from the Index Chair (click on the link to read the full statement):

A year earlier, in September 2008, four men had been arrested for allegedly fire-bombing the North London home of the publisher of Gibson Books who had proposed publishing The Jewel of Medina. Only the most cavalier attitude towards the safety and security of those directly and indirectly involved in the publication of the Index interview would have failed to note that outrage.

The board’s main concern was both for individual members of the Index staff and those who worked for the seven other organisations which share our Free Word premises in Farringdon Road, and who would have been equally on the receiving end of any attack aimed at Index. Nonetheless, a decision to prevent the re-publication of the cartoons (Index had decided against their publication in the magazine when the worldwide protests erupted in 2005) could not be taken lightly by those responsible for leading an organisation whose very essence is to protect and enhance freedom of expression in a world where the rich and powerful are busy eroding what ought to be a fundamental right in any civilised society.

For this reason I consulted the Index editor and established that, in her view, publication of the cartoons — though very desirable — was not crucial to an interview which did not focus on the cartoons themselves but on the process by which Yale decided against their publication….

Here’s a dissenting statement from Index board member Kenan Malik:

Index on Censorship has in recent years chronicled many instances of what we’ve called “pre-emptive censorship”: the willingness to censor material because of fear either of causing offence or of unleashing violence. From the Deutsche Oper cancelling a production of Idomeneo to Random House dropping The Jewel of Medina to Yale University Press’s refusal to publish the cartoons in Jytte Klausen’s book, the list is depressingly long. It is a development that, writing in the magazine last year, I described as “the internalisation of the fatwa”.

It is both disturbing and distressing to find Index on Censorship itself now on that list. I profoundly disagree not just with the decision to censor the cartoons but also with the reasons for doing so: that publication may have endangered staff and was “unnecessary” and, indeed, would have been “gratuitous”.

The safety of Index’s staff is, of course, hugely important. But where was the threat? Index certainly received none because no one knew that we were going to publish. Nor is there any reason to believe that there would have been danger had the cartoons not been pre-emptively censored. Islamic scholar Reza Aslan, describing Yale’s original decision as “idiotic”, pointed out that he has “written and lectured extensively about the incident and shown the cartoons without any negative reaction”. And, as Jo Glanville, editor of Index on Censorship, observed in an article in the Guardian earlier this year critical of Random House, pre-emptive censorship often creates a “self-fulfilling prophecy”. In assuming that an “offensive” work will invite violence one both entrenches the idea that the work is offensive and helps create a culture that makes violence more likely.

The question that now arises is this: what should Index do when the next Jewel of Medina comes along? After all, we cannot in good conscience criticise others for taking decisions that we ourselves have taken and for the same reasons. So, does Index now believe that it was right for Deutsche Oper, Random House, Yale University Press (and myriad others) to censor?

As for the suggestion that publication would have been “unnecessary” or “gratuitous”, I cannot see what could be less unnecessary or gratuitous than using cartoons to illustrate an interview with the author of a book that was censored by a refusal to publish those very cartoons. Almost every case of pre-emptive censorship, including that of Yale University Press, has been rationalised on the grounds that the censored material was not necessary anyway. Once we accept that it is legitimate to censor that which is “unnecessary” or “gratuitous”, then we have effectively lost the argument for free speech.

Index on Censorship is involved in many important campaigns, from libel reform to the defence of threatened journalists. Its authority in these campaigns rests largely upon its moral integrity. As a long-standing board member, I am deeply committed both to the cause of free speech and to the success of Index in pursuing that cause. What I fear is that in refusing to publish the cartoons, Index is not only helping strengthen the culture of censorship, it is also weakening its authority to challenge that culture.

For a similar view to Malik’s, please see the Statement of Principle criticizing the Yale University Press decision (signed by, among others, Joan E. Bertin, Executive Director of the National Coalition Against Censorship, Cary Nelson, President of the American Association of University Professors, and Nadine Strossen, former President of the ACLU). For the cartoons, posted and discussed on this blog, see here.

A terminological note: I generally don’t approve of using “censorship” or “self-censorship” to mean mere market pressure — or simply declining to publish something because of one’s own ethical judgment or a desire to accommodate one’s customers — at least setting aside special institutions that I argue ought to protect speech much as the government does. (For an extended discussion of that, see my Deterring Speech: When Is It “McCarthyism”? When Is It Proper?, 93 Cal. L. Rev. 1413 (2005).) But speech suppression by threat of private violence or vandalism strikes me as similar enough to speech suppression by threat of government force that the label “censorship” can reasonably cover both. Likewise, restricting one’s speech for fear of private violence strikes me as meriting the label “self-censorship” much like restricting one’s speech for fear of improper government suppression.

Thanks to Will Brennan for the pointer.

I’m pleased to be the first to report that the newly founded Voltaire Press at Duke University has just published Muhammad: The “Banned” Images. The book includes all the images that were omitted by the Yale University Press from Jytte Klausen’s The Cartoons That Shook the World — including the 12 Mohammed cartoons — plus many more historically significant items (a total of 31), together with brief discussions of the context behind each work. The images, reproduced in high quality and in full color, include works by William Blake, Gustave Dore, and Salvador Dali, as well as Muslim artists from the Ottoman, Safavid, and Mughal empires.

If you’re interested in reading the book, you can order it here. [UPDATE: Amazon has the book listed as "Temporarily out of stock," but the publisher assures me that copies are available and are being shipped by Amazon; so you can just ignore the message and order the book, and you'll get it promptly.] You can also ask your local public or university library for it, which I think will increase the chances that the library will buy it, and make it available not just to you but to others.

The book includes an Introduction by Prof. Gary Hull, Director of the Program on Values and Ethics in the Marketplace at Duke University, who has been the driving force behind the book. It also includes as an afterword, a Statement of Principle, which I am honored to have been asked to sign. (The Statement is followed by a disclaimer that “The above signatories agree with the ideas expressed in the Statement of Principle. However, they were not involved in the creation of Muhammad: The “Banned Images”, and have no responsibility for its contents.” I think this disclaimer is sound, among other things because most of the signatories — not being art historians — can’t vouch for the accuracy of the book’s discussion of various images, and because there are some Objectivist arguments in the Introduction that many signatories would likely not agree with. But I entirely support the creation of the book, and the publication of the images.)

Here is the Statement of Principle, followed by the names and affiliations of the signatories; the first three, Joan Bertin, Cary Nelson, and Gary Hull, deserve the credit for drafting the Statement:

Free Expression at Risk, at Yale and Elsewhere

A number of recent incidents suggest that our long-standing commitment to the free exchange of ideas is in peril of falling victim to a spreading fear of violence. Not only have exhibitions been closed and performances cancelled in response to real threats, but the mere possibility that someone, somewhere, might respond with violence has been advanced to justify suppressing words and images, as in the recent decision of Yale University to remove all images of Muhammad from Jytte Klausen’s book, The Cartoons that Shook the World.

Violence against those who create and disseminate controversial words and images is a staple of human history. But in the recent past, at least in Western liberal democracies, commitment to free speech has usually trumped fears of violence. Indeed, as late as 1989, Salman Rushdie’s Satanic Verses continued to be published, sold, and read in the face of a fatwa against its author and in the face of the murder and attempted murder of its translators and publishers. In 1998, the Manhattan Theater Club received threats protesting the production of Terrence McNally’s play Corpus Christi, on the ground that it was offensive to Catholics. After initially canceling the play, MTC reversed its decision in response to widespread concerns about free speech, and the play was performed without incident.

There are signs, however, that the commitment to free speech has become eroded by fears of violence. Historical events, especially the attacks of September 2001 and subsequent bombings in Madrid and London, have contributed to this process by bringing terrorist violence to the heart of liberal democracies. Other events, like the 2004 murder of Dutch film director Theo Van Gogh in apparent protest against his film Submission, and the threats against Hirsi Ali, who wrote the script and provided the voice-over for the film, demonstrated how vulnerable artists and intellectuals can be just for voicing controversial ideas. Under such threats, the resolve to uphold freedom of speech has proved to be lamentably weak: in the same year as Van Gogh’s murder, Behzti, a play written by a British Sikh playwright, was cancelled days after violence erupted among protesters in Birmingham, England on opening night.

In response to rising concerns about fear-induced self-censorship, in 2005 the Danish newspaper Jyllands-Posten published an article, “The Face of Muhammad,” which included twelve cartoon images. The cartoons became the focus of a series of violent political rallies in the Middle East in February 2006 and a subject of worldwide debate pitching free speech against “cultural sensitivity.”

For all the prominence of Islam in such debates, threats of violence against words and images are not the sole province of religious extremists. In 2005, a politically controversial professor’s scheduled speech at Hamilton College in Clinton, NY was cancelled in response to alleged threats of violence. In 2008, the San Francisco Art Institute closed a controversial video exhibition in response to threats of violence against faculty members by animal rights activists. Later that year, the University of Nebraska-Lincoln canceled a speech by former Weatherman and education theorist William Ayers, citing security concerns.

The possibility of giving offense and provoking violence has entered the imagination of curators, publishers and the public at large, generating more and more incidents of preemptive self-censorship: in 2006, for instance, London’s Whitechapel Gallery declared twelve works by Surrealist master Hans Bellmer too dangerous to exhibit because of fears that the sexual overtones would be offensive to the large Muslim population in the area; and publisher Random House canceled the 2008 publication of Sherry Jones’ The Jewel of Medina because “it could incite acts of violence.” The suppression of images in Jytte Klausen’s book is the latest, but not likely to be the last in the series of such incidents.

Words and images exist in complex socio-political contexts. Suppressing controversial expression cannot erase the underlying social tensions that create the conditions for violence to begin with, but it does create a climate that chills and eventually corrupts the fundamental values of liberal democracy.

A Call to Action

The incident at Yale provides an opportunity to re-examine our commitment to free expression. When an academic institution of such standing asserts the need to suppress scholarly work because of a theoretical possibility of violence somewhere in the world, it grants legitimacy to censorship and casts serious doubt on their, and our, commitment to freedom of expression in general, and academic freedom in particular.

The failure to stand up for free expression emboldens those who would attack and undermine it. It is time for colleges and universities in particular to exercise moral and intellectual leadership. It is incumbent on those responsible for the education of the next generation of leaders to stand up for certain basic principles: that the free exchange of ideas is essential to liberal democracy; that each person is entitled to hold and express his or her own views without fear of bodily harm; and that the suppression of ideas is a form of repression used by authoritarian regimes around the world to control and dehumanize their citizens and squelch opposition.

To paraphrase Ben Franklin, those who would give up essential liberty to purchase a little temporary safety, will get neither liberty nor safety.

Joan E. Bertin, Executive Director, National Coalition Against Censorship
Cary Nelson, President, American Association of University Professors
Gary Hull, Director, Duke University Program on Values and Ethics in the Marketplace

Foundation for Individual Rights in Education (FIRE)
Sarah Ruden, Professor, Yale Divinity School
Michael Munger, Professor and Chair, Department of Political Science, Duke University
Eugene Volokh, Professor of Law, UCLA
Steve Simpson, Senior Attorney, Institute for Justice
Flemming Rose, Opinion and Culture Editor, Jyllands-Posten
Nadine Strossen, Professor of Law, New York Law School
First Amendment Lawyers Association (FALA)
American Society of Journalists and Authors