The Volokh Conspiracy

It's kind of cute how he says Islam condemns the vilification of any religion (not just Islam), acknowledges that Muslim countries hardly honor that concept with respect to the Jews, but then skips right past the point with a blithe, "Oh, that has to stop, too." As if.

Constitutional lawyers who want to blindly defend the action of the newspaper forget that the idea of freedom of expression evolves and deepens as history progresses....

The notion of history 'progressing' is, well, Victorian. All we can say of history is that "times change" and it's to keep those changes from going in unfortunate directions that we have institutions like 'free speech'. If we let history's 'progress' dictate our principles, we have no principles.

Porlock is right. Didn't the Whig view of history die with WWI?

I learned from his opinion piece about the second most important tenet of Sharia. But, since Danes don't live under Sharia, I once again question the relevance.

The problem as you have pointed out previously is that the prosecutors' refusal to use the existing hate speech law against the cartoons could easily be argued to be discriminatory. That's one of the disadvantages of having a broadly worded hate speech law on the books! It would be interesting to see what the prosecutors viewed as the weak point in their case. Perhaps the Danish hate speech law has a mens rea requirement, as Professor Freamon suggests, and the prosecutors felt it would be hard to prove the mens rea.

By the way, art. 266b of the Danish penal code came up in a celebrated case where the authorities prosecuted a journalist for televising an interview with someone who uttered hate speech during the interview. The ECHR reversed 12-7. The majority felt that the lack of racist intent on the journalist's part was "a factor" which should have been "t[aken] into account" in deciding guilt.

Well, it might get him on O'Reilly, so even if he doesn't believe the argument he is making, there is still a chance that someone hysterical like Bill will bring this guy on for a browbeating and instant notoriety.

What a bad week for Seton Hall. This idiot writes this thing and they drop a key game to St. John's as they try to build a NCAA tournament resume.

Cute suggestion that Islam condemns the vilification of any religion, I'll mention that next time I'm in ISRAEL.

SORRY FOR OVERPOSTING my friends. But I just looked at his biography. He's on the board of the New Jersey ACLU!!!

Maybe Sean Hannity was right about them, after all . . .

Sorry but I can not resist the ACLU HAHAHAHAHAHAHAHA!!!!!!!!!!!!!!!!!!!!!Wonder if they will just shrug and say well It is his Freedom of Speech. HAHAHAHAHA................

Affirmative Action and Tenure combine once again with predictable results.

Says the "Dog"

I don't think the professor's justification for this statement:

Muslims are therefore very right to vigorously condemn the publication of the cartoons

Naturally extends to this:

and to seek to punish the editors through the criminal law process.

It is my duty as a Muslim African-American law professor . . .

Whenever you see an argument starting like this, you just know it's going to suck.

I suppose it's possible that Jyllands-Posten could have been prosecuted in Denmark but that's a matter of stunning irrelevance. The questions are 1)whether they should have been prosecuted and 2) whether it's really a good idea to ever allow a heckler's veto or, in this case, a rioter's veto.

The U.S. has a pretty definitive answer to both of these questions. Europe is rather more ambivalent regarding these issues.

The problem for Islam here is that many European speech restrictions have evolved through a process of high-minded compromise. Many European countries outlaw race-baiting because their societies (they hope) have evolved beyond such objectively stupid things as racism. But demanding that the European press follow Sharia is completely antithetical to this tradition. The spirit of European liberalism that outlaws racism also thinks that religion in general is silly and that Islam, as it is commonly practiced, especially in the middle east, is abhorrent. Thus, a ban on attacking the tenets of Islam is, for Europeans, fundamentally different than advocating racism.

Constitutional lawyers who want to blindly defend the action of the newspaper forget that the idea of freedom of expression evolves and deepens as history progresses;

Yes, indeed. But European liberals believe that this "historical evolution" is moving toward less respect for religion and toward broader acceptance of humanistic ideals.

This controversy can only mean more restrictions on Muslims in Europe, especially with respect to immigration. In Western eyes, the Islamic world is acting like a mentally-deficient eight-year-old throwing a tantrum. Muslims as a whole (there are some very notable exceptions) do not seem to be able to either grasp the actual issues or to pose reasonable solutions to their grievances. As a result, the West has no option but to ignore them.

Steve,

I know this is off topic, but this is one of the problems with Affirmative Action - you see someone black and stupid, you'll assume he was an AA benefficiary. (I suppose you see someone who's white and stupid and went to Princeton, you'll assume his Daddy built a nice gym extension).

Anyway, what the Dog said was totally non-Pc, but in truth, this is what most people think, whether they say it out loud or not.

I don't deny that, although I think that if you see someone who is white and stupid, you are more likely to think of him simply as stupid than as stupid and white. Anyway, I also get that accusing someone of racism is oh so 1980s, and that now such statements are considered all daring and "non-PC."

In the WaPo: Why I Published Those Cartoons by Flemming Rose, publisher of the Jyllands-Posten.

WhatAMoron said:

His bio is a joke

In what way? He is certainly a highly-educated scholar. You may say that it is a dreadful commentary on the state of higher education that it produces a person with views such as Freamon's. But there is certainly nothing laughable about his training and experience.

Indeed, I've read the most-recent article listed in his online biography: "Martyrdom, Suicide, and the Islamic Law of War: A Short History." It struck me as readable, scholarly, and somewhat enlightening (in the sense that it taught me things I did not know.) Having read that article, I'm actually kind of surprised that Freamon would hold such an opinion regarding the Danish cartoons. Read it, WhatAMoron, and tell me what you think is lacking.

as is his argument

I wish it were a joke. But it is quite the mainstream position today in many of the "enlightened" democracies, including, of course, Denmark.

The Original TS said:

It is my duty as a Muslim African-American law professor . . .

Whenever you see an argument starting like this, you just know it's going to suck.

I agree. In fact, this is ridiculous. Let's take it apart for a moment. First, let's eliminate the "African-American" surplusage. What weight does this add to his argument? Would the argument be weaker/stronger if it were coming from a "European-American Muslim?" From a native Saudi Arabian Muslim? Who cares? Apparently Prof. Freamon does, and thinks we should. Why, I don't know.

Next, let's look at the rest: "As a ... Muslim law professor ... ." OK, I'll grant him this one: he's a Muslim, and (by saying so) apparently not a casual Muslim, but a wholly committed one. And so, I guess, this lends some air of authority to his statements regarding the "severity" of the offense to Muslims. And I guess the same goes for the "As a ... law professor" part.

Interestingly, I when I read the Fordham Law Review article cited above, my lack of knowledge of Professor Freamon's race, nationality, and religion actually caused me to accord more weight to that paper's argument. Knowing that he prefaces his op-ed type pieces with the intro quoted above -- "As an African-American Muslim ..." -- I can't help but tend to take his arguments with, well, a big old chunk of salt.

Is this just me, or do others feel the same way?

I polluted my brain by reading his article. Will you permit me to use your bandwidth to tell him "This is America and I have the right to say 'Roll your religion up tight, lubricate it well, and stick it where it gives you the most pleasure' and I want that right for every person in the world"?

I'm not an expert on Law schools and their hiring practices but is it normal for a Law School to hire as a professor, assuming they weren't looking for a AA professor above all others, a guy who, apparently from his CV
- Graduated from an OK Law school w/o honors or law review.
- spent 6 months as a PD
- spent 2 years with the ACLU
- spent 2.5 years working in a Law school legal clinic

fairly mediocre start.

28 years later gets an MA
is overdue by 18 months on his degree date for his JSD

It is my duty as an Irish Catholic history professor to say that academia is full of twits. But if you were to make this guy a character in an academic parody novel--especially the anti-free press ALCU part--your reviewers would skewer you. This chap is beyond parody.

The optimist in me wants to emphasize that it's perhaps a credit to legal academia that, to find a law professor willing to make such a bizarre and ignorant argument, they had to dig deep into the bench of obscure, C-level profs to find someone with so shallow a record of scholarship.

In addition to other, economic reasons people came to the New World was the search for religious freedom. Wasn't too long ago Old World religious minorities were severely oppressed, tortured, and even burned. So we wound up with some competing sects and some influential citizens who liked Enlightenment philosophy; and when they became able, they made some rules for religious peace. Then here come some people want to undo this remarkable achievement because they've got their thoughts structured around a religion that wasn't part of our struggle here. I've saved some links for a post on this, but I'll share one paragraph from a UK paper with this legally oriented readership:

In Britain, a poll of Muslims last night found evidence of growing alienation, with four in 10 calling for religious sharia law to be imposed in parts of the UK with a mainly Muslim population. The law specifies stonings and amputations as punishments, and involves religious police bringing suspects before courts.

I am tempted to say, "Over my dead body will you do that here." And I think more immigration controls to keep us off the European road can be discussed without it being weird.

Professor Freamon may be right that the Danish prosecutors could, in theory, prosecute the Danish newspaper editor for publishing these cartoons, provided that the prosecutor could establish that the editor acted with the intention of offending Muslims. Having read Flemming Rose's explanation for why his paper did publish these cartoons, I doubt that any prosecutor could establish this element. Professor Freamon's explanation as to why they should prosecute ---essentially that it is a slippery slope from such cartoons to a Rwandan genocide---is particularly weak. I think the Professor was just trying to be provocative, and, in that respect, he has succeeded.

"Islam-bashers(and even some so-called Muslim governments) now see that much of the Islamic world suffers from a huge complex about its role in history; they are craftily using this sensitivity to provoke Muslims to commit senseless acts of violence."

It is all the fault of the crafty Islam bashers!Anybody want to decode "crafty Islam basher" for me?

Firstly, a disclosure: I am 2L at Seton Hall Law, and have Professor Freamon for a course in Islamic Jurisprudence this semester. And for a taste of my POV: I'm also VP of the Federalist Society here on campus and speak from a distinctly American conservative/neoconservative perspective on most all issues.

Secondly, VC is one of my favorite blogs. When I do check the comments, I almost always find them to be quite knowledgable and fair.

But not today; and I'm disappointed.

By my count, only two comments of the 40+ here critique Freamon's legal analysis of Danish/EU law, and that was the entire point of the article!

The rest resort to puerile and baseless character attacks--a couple of them even bordering on racism. I would be ashamed if I were Prof. Volokh, et al.

Personally, I think the real problem is the existence of these politically-correct, hate-speech laws in Europe; I think the market should impose its own limits on most offensive speech--much like it does here in the US. Obviously, Freamon has no problem with these hate-speech laws, so we disagree. But that's not the point here... His is a reasonable application of Danish/EU law as it was enacted through democratic means in Denmark--however much it may offend our American constitutional/cultural sensibilities.

At least one comment here disputes his caselaw analysis, but that's it.

Having researched the Rwandan genocide for my undergrad senior thesis, I also strenuously disagree with Freamon's characterization and analogy--Rwanda was still licking the wounds of civil war, and the radio was used only to orchestrate a pre-planned genocide--very different from Denmark. But this was only one sentence in the entire article. I agree that this detracts from his argument in some rhetorical sense, but I fail to see how it affects his legal analysis.

The comments here have done little to convince me that his analysis of a perfectly valid Danish law is unreasonable.

kylerr - Your outrage, real or feigned, is just adorable. Professor Freamon (and the rest of your profs) must just love you. Follow up that last comment with a nice shiny apple and I'm sure you can just coast through exam-time this year.

To claim that "the entire point of the article" was Prof. Freamon's "analysis of Danish/EU law" is more than a bit of a stretch. He raises the issue in the 5th paragraph (of 10), baiting those who would defend free speech. Frankly, it hardly seems worth it. So I give up. Prof. Freamon must be right, free speech rights are merely an accessory to other, important rights like the right not to be offended. However, his comments are offensive to me, and those like me who believe in free speech. His essay is an insult, and indeed, a deliberate attempt to hold us up to ridicule. Therefore he should be prosecuted criminally under New Jersey law, and why not Pennsylvania law, or EU law, too, while we're at it?

A few boys above who cried racist wolf, but fortunately a few other boys who could see there was no wolf at all.

And lest someone here completely lose it. I use the term boy as an indirect reference to the fable "the boy who cried wolf" from which my analogy rose, and not in any other manner.

Says the "Dog"

P.S., I'm really sorry I missed all those classes in law school on Islamic Law History, Feminism and the Law, etc. instead of taking securities regulation, taxation, partnerships, and corporations, etc. That Islamic Law History section of the Bar was a killer.

In response to Sam, Michael B, and Midatlantan... Prof. Freamon's article is an argument for the criminal punishment of these newsmen. Allow me to state the obvious: you can't prosecute someone without a law on the books making their conduct a crime. Moreover, you can't argue for the criminal prosecution of a particular individual or group without first analyzing the relevant law. Thus, it seems to me that the central thesis of the article must have been its legal analysis.

You can critique his style, and decision to wait five paragraphs to begin his legal analysis, but as a logical matter, you cannot dispute that this was about applying Danish law to Cartoon-gate.

The truly unfortunate fact in all of this is the existence of these Danish laws that punish certain hateful speech with criminal sanctions. Prof. Volokh has dutifuly pointed this out in his words about "censorship envy." I don't agree with these laws, I'm glad they don't exist--to my knowledge--in the US, but apparently enough people in Denmark feel differently. That's their right, but hopefully that will change, and these newsmen are not prosecuted.

But the fact remains: not one comment has been able to show that his analysis of Danish criminal law was unreasonable; at least to the point to justify many of the invective, ad hominem responses I've read here.

I disagree; or rather, I readily agree that there are iniquitous laws which ought to be repealed, but that is a far cry from saying they ought not to be enforced. The problem with underenforcement is that laws fall into disuse but remain on the books awaiting future potential for mischief. But of course, I'm one of these awful legal positivists, so perhaps the point is merely lost on me...

As an afterthough, I realize I took a pedantic tone, especially in the second graph. Didn't mean to offend, but such a general approach or statement nonetheless represents why something beyond the law strictly or narrowly understood, even something more visceral and not necessarily well articulated, is invoked in people as a result of approaches such as is represented in Freamon's article.

kylerr,

You're loyalty to Prof. Freamon is admirable. Unfortunately, your argument is not.

From your post,

By my count, only two comments of the 40+ here critique Freamon's legal analysis of Danish/EU law, and that was the entire point of the article!

From Prof. Freamon's article.

The incident and the furor it has created, including the violence and needless loss of life, raise profound questions about the continued viability of a liberal and universalist approach to free expression in our rapidly changing and increasingly pluralist world. Constitutional lawyers who want to blindly defend the action of the newspaper forget that the idea of freedom of expression evolves and deepens as history progresses; the issues surrounding free expression today are considerably different from the issues that confronted Justice Holmes when he penned his famous dissent in Abrams v. United States in 1919.

And then, several paragraphs later,

There seems to be some support for my position in Danish law governing the original publication of the cartoons in Jyllands-Posten. [Emphasis supplied.]

Most posters here are responding to Prof. Freamon's position, rather than his application of Danish law. Most of us believe that the marketplace of ideas is more important today than it was in 1919, not less.

If you haven't already read this, kylerr, please do. It'd be quite interesting to hear Prof. Freamon's rebuttal.

Sorry, kylerr, I seem to have forgotten the link.

Why I Published Those Cartoons

kylerrr, I quite law school after a cople of weeks,realizing I was at the wrong type of law school. They were interested in teaching law while I was interested in learning about justice. It was my mistake. I wish I had understood the difference before I applied to that school.

That said, every law school needs to help its students appreciate the value of sound law to the development of society. Teaching law ought to cover more than the mere application of law. You can support Prof. Freamon in the shallow sense, but not the greater.

Markm writes:

Just what is Prof. Freamon's expertise in Danish law? He lets readers know his race and his religion, but not that. I would therefore assume that, like everyone else posting here, he is unlikely to know as much about Danish law as the prosecutors who declined to prosecute this case, and who presumably graduated from a Danish law school and qualified for the Danish bar.

I would stipulate that Prof. Freamon is as qualified to analyze Danish law as Justice Kennedy is...

Cheap shots aside, what Prof. Freamon fails to understand is that while there may be some legal rationale for pursuing criminal charges against the newspaper, ultimately any charging decision is a political one--that is the nature of prosecutorial discretion. While I grant Prof. Freamon the expertise to analyze a statute, I am less convinced of his experience, knowledge, and proficiency in modern Danish politics. Why some cases are never pursued depends upon a myriad of factors, some of which have nothing to do with the law (for reference, see a certain Texas prosecutor who refused to investigate charges that some guy shot another guy in the face).

Kylerrr:

Do you really think the heart of Freamon's argument is a critique of prosecutorial discretion? I don't think that's really what he was getting at.

As I think you probably know, European hate speech laws are enforced all the time. Freamon argues that the Danish statute could have been enforced in this case, and that seems like a fair read to me. Whether it should is a matter of opinion, and Freamon is certainly entitled to his.

His real point, it seems to me, is that free expression as it is understood in the American legal tradition (which began with Holmes' dissent in Abrams)needs to evolve into something more European. The rest of his discussion is devoted to explaining why: a) because offensive speech is hurtful and b) because, as demonstrated by the Rwanda and cartoon examples, offensive speech is a danger to public safety.

Although the focus on the applicability of the Danish statute was probably intended to demonstrate how reasonable these laws really are, I think he did exactly the opposite. But then, unlike Freamon, I rather like the "liberal and universalist approach" to free expression and hope it remains "viable".