The Volokh Conspiracy

LifeSite.net quotes Catholic League president Bill Donohue:

"In the January 30 edition of the Connecticut Jewish Ledger, Abigail Pogrebin was asked which Jewish persons have left a 'profound impression' on her. She answered, 'I will never forget Justice Ruth Bader Ginsburg saying, 'Don't put a [Christmas] wreath on this door.' Indeed, Ginsburg admits to putting a gold mezuzah on her office door's frame as a way of saying, 'This is my space, and please don't put a wreath on this door.' To observant Jews, the mezuzah reminds them of their connection to God. To Ginsburg, who is not observant, it is a symbol of protest.

"Ginsburg used to attend the annual Red Mass, a Catholic Mass that honors lawyers, but then she had a bad experience: 'I went one year and I will never go again, because this sermon was outrageously anti-abortion.' So much for respect for diversity. Just imagine how it would go down in the Jewish community if a Catholic Supreme Court Justice were to say that he would never again attend a particular Jewish event because he had to endure a talk that was 'outrageously pro-abortion.'

"In 1995, the Supreme Court ruled, 7-2, that it was constitutional to put a cross outside Ohio's state capitol building. The ruling said that the park was a public forum open to all expression, and could not therefore exclude a Christian symbol. Ginsburg dissented, explaining to Pogrebin, that 'a Jewish child who is passing by the Capitol' would surmise that 'this is a Christian country,' thus provoking the conclusion that 'There's something wrong with me.' Ginsburg had nothing to say about the fact that a menorah had been allowed on the same grounds prior to the ruling.

"What Ginsburg has said should give all Christians pause, especially Catholics. Her intolerance for our teachings and traditions is striking."

Now I should say that I disagree with Justice Ginsburg's opinion in Pinnette, though not quite on the grounds Mr. Donohue urges.

But what exactly is Donohue's beef with Ginsburg's position on the Mass? Ginsburg used to go to the Mass, presumably because she thought it was a nice gesture, and perhaps because she found it interesting. Then she heard a sermon she strongly disagreed with -- and, horror of horrors, decided to stop going to another religion's religious services! "Respect for diversity" doesn't mean that you have to listen to sermons that you think are wrongheaded. It's not "intoleran[t]." It's not disrespectful of diversity. It's a sign of diversity of opinions, a sign that Ginsburg is not a Catholic, and disagrees strongly with some Catholic views. What precisely is wrong with that?

As to "imagin[ing] how it would go down in the Jewish community if a Catholic Supreme Court Justice were to say that he would never again attend a particular Jewish event because he had to endure a talk that was 'outrageously pro-abortion'" -- shouldn't be too hard. First, let's imagine a Catholic Supreme Court Justice going to a service at a synagogue; I can imagine that, though I'd think that would be pretty rare (perfectly understandable, since I'd expect Catholic Justices to prefer Catholic services to Jewish ones). Then, let's imagine that he heard the rabbi preach a sermon that he thought was "outrageously" pro-abortion-rights (presumably something more than just a mild expression of support); and that he then decided to quit going to a synagogue.

How would Jews feel? How should Jews feel? I suppose they probably should, and would, think: Well, it's nice that he tried to be ecumenical, but I suppose he realized that there really are big gulfs between his religious/political views and our religious/political views, and that there's a reason why people usually go to religious services of their own faith (and their own twist on their own faith) rather than of other faiths. Thanks for coming, sorry you won't be back, guess we disagree on some things.

Likewise as to Christmas wreaths. Ginsburg wasn't trying to ban Christmas wreaths. She wasn't berating someone for wishing her a Merry Christmas. She was trying to subtly convey the message that this is her office, and she wants it to reflect her own cultural identity (my understanding is that she is indeed nonobservant, and that Jewish is to her a cultural identity rather than a religious one) rather than someone else's cultural identity. This isn't even exactly "protest"; but in any event it's hardly "intolerance" to try to control which symbols are put on your own office door.

There is sometimes genuine government discrimination against and intolerance towards religiosity, and sometimes against Christianity. I've criticized it in the past, on many occasions. Justice Stevens's and Ginsburg's dissents in Pinnette, I think, do represent such discrimination against religious speech, though not necessarily against Christian speech.

But the other two examples are not remotely grounds for legitimate complaint. Donahue's complaints work only by turning personal disagreement with others' views, and assertion of one's own cultural identity, into "[dis]respect for diversity" or "intolerance" -- which is to say by sapping the concept of "intolerance" of any real meaning.

Maybe I'm missing some important context here (for instance, may private schools function without a license?), but this seems quite troubling:

In its Thursday session the [Finnish] government decided to deny licenses for new private schools, as well as to turn down applications for the expansion of the activities of existing schools. . . .

Minister of Education Antti Kalliomäki (soc dem) said in a statement Thursday that it was not the function of schools to proclaim one single truth, religious or otherwise. "One school teaching according to the convictions of some and a second school teaching according to the convictions of others is not real pluralism." Mr Kalliomäki previously proposed also denying extensions to fixed-term licenses held by existing private schools. . . .

It's dangerous enough when state and local governments have a de facto near monopoly over primary and secondary education, as they do in the U.S. But at least here private schools are legal, though they labor under a stiff competitive disadvantage against the government-subsidized public schools; and even public schools are mostly controlled at the state level and the local level, not at the federal level. When a government actually prohibits private schools (which would be unconstitutional in the U.S., incidentally), or prohibits new private schools, that seems much more troublesome. And if the Finnish government's control over the schools is centralized (a matter that I'm not sure about) rather than mostly decentralized, that would be more troubling still.

The "not the function of schools to proclaim one single truth" argument also strikes me as weak to the point of disingenuousness. I will bet you that government-run Finnish schools, like all government-run schools and likely all schools, period, do proclaim one single truth on certain matters.

Sometimes that's uncontroversially right -- few schools, I suspect, even discuss the flat earth theory (at least in geology class). Sometimes it's controversial, but also right: While I think that at least private schools should be entitled to teach creationism (I set aside for purposes of this post whether the U.S. Establishment Clause bars government-run schools from doing the same), surely a school should be entitled to say that it will teach just the theories that it thinks are scientifically sound. (Perhaps in some situations it would be good to spend some time discussing rival theories, but that's a complicated decision, and schools should certainly be free to decide otherwise.) And sometimes the decision is subject to very serious political and ideological dispute, and far from clearly correct, but I suspect inevitable in any country: I'm pretty certain that Finnish government-run schools do proclaim a single truth on many historical, ethical, and other matters.

Finally, I recognize that many people support government-run schools precisely because they do teach an orthodoxy, an orthodoxy that one hopes will create better future citizens, and a more cohesive society. But my view is that the benefits of such government-imposed teaching of orthodoxy are considerably outweighed by the risks.

By the way, just to head off one possible source of speculation: As best I can tell from The CIA World Factbook, the move seems quite unlikely to stem from concerns about the presence of large and potentially dangerous unassimilated ethnic or religious minorities. The Factbook reports Finland's demographics as "Finn 93.4%, Swede 5.7%, Russian 0.4%, Estonian 0.2%, Roma 0.2%, Sami 0.1%," "Lutheran National Church 84.2%, Greek Orthodox in Finland 1.1%, other Christian 1.1%, other 0.1%, none 13.5%," and (as to language) "Finnish 92% (official), Swedish 5.6% (official), other 2.4% (small Sami- and Russian-speaking minorities)." The Swedes have been part of Finnish life for centuries, and while one should always be scared of us Russkies, I doubt that we're causing the Finns that much trouble these days . . . .

The jury has ruled in Benihana's favor in the killer shrimp lawsuit:

A Benihana chef may have tossed a hot shrimp at a customer five years ago, but a Nassau jury decided yesterday it's not the restaurant's fault the man wrenched his neck that night and later died.

It took the jury less than two hours to decide that Benihana, a Japanese restaurant chain famous for its theatrical table-side food preparation, was not responsible for the death of Jerry Colaitis, 47, of Old Brookville. . . .

UPDATE: Thanks to Jim Lindgren and Joe Zwers for giving me the correct cite.

The AP reports that "An Italian judge has dismissed an atheist's petition that a small-town priest should stand trial for asserting that Jesus Christ existed, both sides said on Friday. Luigi Cascioli, a 72-year-old retired agronomist, had accused the Rev. Enrico Righi of violating two laws with the assertion, which he called a deceptive fable propagated by the Roman Catholic Church." I had noted the matter before, and thought I'd provide this update.

BBC News reports:

A town in Belgium has banned an artwork of Saddam Hussein for fear that it will put off tourists and offend Muslims.

The piece, called Saddam Hussein Shark, shows the handcuffed ex-Iraqi ruler suspended in liquid and wearing nothing more than underpants. [EV: Click on the link above to see the picture.]

The mayor of Middelkerke, Michel Landuyt, said the work could "shock people", including Muslims.

He said he decided to ban Czech artist David Cerny's sculpture before the row over cartoons of the Prophet Muhammad. . . .

"They wanted to put this piece in a location where many children come, so that couldn't be allowed," [the mayor] told the BBC.

He added that the work was now going to be displayed in a museum in the Belgian city of Ostend.

"When you go to a museum and are prepared to see those things and there is an explanation, perhaps there is no problem. But when you come somewhere where you don't expect that, it can be a problem," he said. . . .

Bareknucklepolitics pointed to this story, seemingly to condemn it; and if the city is indeed banning the display of this work on private property, that would be quite troublesome. On the other hand, if the work was to be displayed on city property -- which would presumably involve some preferential treatment by the city, since I doubt that the city lets anyone install just any artwork on its property -- then I think the city is entitled to decide that the work is bad for tourism, or offensive to some of its citizens.

Does anyone have more details on this? Was the "ban" simply a refusal to host the work on city property, or a city-imposed prohibition on its display even on private property?

I generally agree with David's criticisms of the lawsuit against CraigsList for allowing allegedly discriminatory housing ads. But, as a my friend and fellow lawprof (and former student) Jennifer Rothman has also pointed out, CraigsList is almost certainly immune from liability under 47 U.S.C. § 230. Section 230 is a federal law that largely immunizes service and content providers from liability for material posted by others on their sites; there are some exceptions, and some gray areas, but none seem to apply here. Section 230 was prompted by a decision that had held a service provider liable for defamation based on what was posted on its service, but the law has been applied to many other causes of actions as well.

Here's what a federal trial court dealing with a lawsuit against roommates.com -- a lawsuit that's nearly identical to the one against CraigsList -- held (Fair Housing Council of San Fernando Valley v. Roommate.Com, LLC., 33 Media L. Rep. 1636 (C.D. Cal. Sept. 30, 2005)):

Roommate argues that the CDA shields it from liability for Plaintiffs' claims. The immunity provision of the CDA at issue here provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

The CDA clarifies its effect on other laws and specifically exempts federal criminal laws, laws pertaining to intellectual property, and the Electronic Communications Privacy Act of 1986. 47 U.S.C. § 230(e). State laws which are consistent with the CDA are not barred, but "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).

This is apparently the first case to address the relationship between the CDA's grant of immunity and the FHA's imposition of liability for the making or publishing of discriminatory real estate listings. The FHA is not among the types of laws which are specifically exempted from the CDA. As such, and without evidence of contrary legislative intent, a court may not create an exemption for the fair housing laws without violating the maxim expressio unius est exclusio alterius. "'Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.'" In the absence of contrary legislative intent, therefore, the Court finds that the CDA applies to shield Roommate from liability for the FHA violations alleged by Plaintiffs to the extent that Plaintiffs seek to make Roommate liable for the content provided by its users.

As the Ninth Circuit has indicated, "reviewing courts have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of 'interactive computer service' and a relatively restrictive definition of 'information content provider.' Under the statutory scheme, an 'interactive computer service' qualifies for immunity so long as it does not also function as an 'information content provider' for the portion of the statement or publication at issue." In [Carafano v. Metrosplash.Com. Inc., 339 F. 3d 1119, 1123 (9th Cir. 2003)], the Ninth Circuit applied the CDA's immunity provision to invasion of privacy, defamation, and negligence claims brought against Matchmaker.com arising out of a false listing on Matchmaker's website. As in this case, the questionnaire at issue there contained both multiple choice and essay questions. In the multiple choice section, members could select from answers to more than fifty questions from menus providing between four and nineteen options. "The actual profile 'information' consisted of the particular options chosen and the additional essay answers provided."

In Carafano, the Ninth Circuit concluded that Matchmaker "was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph." In those circumstances, Matchmaker could not be "considered an 'information content provider' under the statute because no profile has any content until a user actively creates it." The Ninth Circuit went on to find that "the fact that Matchmaker classifies user characteristics into discrete categories and collects responses to specific essay questions does not transform Matchmaker into a 'developer' of the 'underlying misinformation.'"

Plaintiffs express a concern that application of the CDA might eviscerate the FHA. Though mindful of that concern, the most that can be said is that operators of Internet sites such as Roommate have an advantage over traditional print media because websites, unlike newspapers, are exempt from 42 U.S.C. section 3604(c) and the related state fair housing laws for publishers. This is a concern created by Congress' adoption of the CDA, and is not unique to the FHA. Instead, it is identical to the numerous other federal and state statutes and common law remedies for which the CDA's immunity provision applies. See Batzel v. Smith, 333 F.3d 1018, 1026-27 (9th Cir. 2003) ("The specific provision at issue here, § 230(c)(1), overrides the traditional treatment of publishers, distributors, and speakers under statutory and common law. As a matter of policy, 'Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.' Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory test, and, indeed, at least with regard to publishers, even if unaware of the statement. Congress, however, has chosen to treat cyberspace differently.").

The Ninth Circuit's decision in Carafano compels the conclusion that Roommate cannot be liable for violating the FHA arising out of the nicknames chosen by its users, the free-form comments provided by the users, or the users' responses to the multiple choice questionnaire. Plaintiffs' federal claims against Roommate are therefore barred by the CDA.

This decision is not binding precedent, and one Seventh Circuit opinion -- the CraigsList case is being filed in the Seventh Circuit -- has suggested that the CDA should be interpreted somewhat more narrowly than most other courts (including the Ninth Circuit) have interpreted. Nonetheless, the great weight of authority on § 230, from a wide range of courts, cuts against liability for CraigsList.

The Canadian Press reports:

An outspoken professor who was forced to remove incendiary drawings of the Prophet Muhammad from his office door now plans to display them in his classroom to prove a point about freedom of speech. . . .

"I probably will take them into the classroom tomorrow morning," [Peter March] said in an interview Wednesday.

"There's a clash between (the university's) perception of protecting health and safety and my perception of what my job is. My job is, I think, to take risks."

A university spokesman said while March is free to discuss the drawings in class, displaying them is another matter.

"It would be up to the professor to decide whether that would be appropriate and necessary," said Chuck Bridges, the university's vice-president of external affairs. "I can't speculate on that. We have to wait and see what would happen if it happens." . . .

March was confronted Wednesday outside his university office by three Muslim students.

"I will say what I want . . . this is a university, this is a university," March told the students.

"That was a little bit disrespectful for the Muslims who are here," one of the students said to March, who told them he respects their rights.

"But I don't believe in your faith," he said. "I believe your faith is a pernicious thing - the same as Christianity, the same as Hinduism."

March said later that he was confronted in his office by another group who told him to apologize or face the consequences.

"The leader said, 'We're going to get you,'" said the professor, adding he notified police.

The controversy was also being felt in Charlottetown, where the student newspaper at the University of Prince Edward Island published the 12 cartoons.

The university moved quickly to stop about 2,000 copies of the newspaper from being distributed on campus.

"When we realized that they were in circulation, we acted to round up the copies that were in circulation," said UPEI president Wade MacLauchlan.

"We see it as a reckless invitation to public disorder and humiliation."

Ray Keating, editor of The Cadre, said he was disappointed by what he views as censorship by the university.

"I see this as an issue of freedom of expression and freedom of the press," he said.

Meanwhile, March said he plans to launch a union grievance against Saint Mary's, which ordered him to remove the drawings from his door Tuesday.

"There's a great deal in my collective agreement that says that what I am doing, which is engaging public discussion using my skills as a philosopher, is part of my job description," he said. . . .

Paul Bowlby, chairman of religious studies at Saint Mary's, is another who was bothered by March's actions.

"I find it very offensive that academic freedom is being used to defend an act of posting those cartoons in a public space, on a university campus," he said. . . .

[See UPDATE below for the USC Administration's ultimate decision on the matter, which I think is much better than its initial decisions.]

The Daily Trojan reports:

Eddie Marquez, assistant director of Norman Topping Student Center, shut down a Gender and Sexuality Week event being held in a designated free-speech zone after receiving several complaints about vulgar language.

George Weiss Vando was near Tommy Trojan and in the middle of performing "Man Lady," a performance based on his life experiences, when Marquez interrupted him, asked the organizers to turn the speakers off and pulled the power cords. . . .

Marquez said that after hearing complaints from a Department of Public Safety officer, a staff member and the vice president's office, he made the decision to stop the performance. He did not give names of the complainants.

Ian Scott, a senior majoring in music education, was walking past Tommy Trojan between classes when he heard Vando speaking. . . . Scott said the language and content of the poetry was "raunchy," but was also artistic and not profane.

The term "motherf-----" was used. . . . [Scott is quoted as a witness, not as someone who was complaining. -EV] . . .

When asked if vulgar speech was allowed in the free speech zone, Marquez said, "I would say no, just because we don't want to offend anyone . . . We do this to protect the students and make sure we maintain the integrity of the university."

A later story reports that a couple of days later students tried to protest the administration's actions by displaying signs that used the word "fuck" and its variations; the administration shut down one such protest, and apparently tried to shut down a second, though the story is a bit ambiguous on what ultimately happened as to the second protest. USC Department of Public Safety officer Bryan Hunt said display of profanity violated California Penal Code 415. "'This is the deal: There is freedom of speech, but there are words that can offend people,' Hunt said."

1. As to California Penal Code 415, USC is 35 years behind the times. In Cohen v. California (1971), the U.S. Supreme Court dealt with the prosecution of someone publicly displaying the word "fuck," under precisely the statute USC is citing, California Penal Code 415. The Court held that such public display of profanity generally may not be criminally punished, unless it's a personalized insult "directed to the person of the hearer" and therefore likely to start a fight — if you say "fuck you" to someone, that might be criminally punishable, but wearing a "Fuck the Draft" jacket (the particular facts involved in Cohen), giving a performance that uses the word "motherfucker," carrying signs containing the word "fuck" as a protest against suppression of profanity, and the like are constitutionally protected.

2. USC is also over 10 years behind the times when it comes to the broader question of whether it may suppress offensive student speech. As a private university, USC is not bound by the First Amendment — but the Leonard Law, enacted by the California Legislatures in 1992, obligates private colleges in California to generally tolerate student speech under the same standards imposed by the First Amendment on the government:

(a) No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution. . . .

I'm not wild about this restriction on private universities' freedom of action; while I think that private universities generally ought not suppress student speech, I think they should have the legal right to do so. But the Leonard Law is the law in California, and it seems to me that USC ought to comply with it. And the Leonard Law quite clearly bars USC from suppressing student speech simply because it's offensive or because includes profanities.

UPDATE: I'm pleased to report that the USC administration has ultimately come to the right conclusion:

Carey Drayton, assistant chief for the Department of Public Safety, is quoted as saying: "The administrator should have said, 'Yes, it may be offensive to you, but that person has a right to speak,'" Drayton said. "We're going to start a joint training with administrators and DPS so everybody will know what is expected."

BareKnucklePolitics quotes Reuters:

A French satirical weekly reprinted cartoons of the Prophet Mohammad on Wednesday and published one of its own on its front page, further angering Muslim groups which say the caricatures are blasphemous.

French Muslim organizations tried to prevent Charlie Hebdo reprinting the 12 cartoons, which were first published by the Danish paper Jyllands-Posten, but a court rejected their suit on Tuesday on a technicality. . . .

The new cartoon was on the front page, "depicting the Prophet Mohammad burying his face in his hands and saying: 'It's hard to be loved by fools.'"

A commenter (Porkchop) raises a great point:

Republication of the cartoons boils down to this: Depicting Mohammed in violation of Muslim tenets strikes a blow at the very heart of Islamic beliefs, and and such sacrilegious desecration of their beliefs is so offensive and hurtful that it simply should not be allowed, even under the guise of "free speech."

Personally, I don't buy into that, but here's a question for discussion: Isn't this the same argument advanced in the United States by those who want a constitutional amendment (and implementing federal and state statutes) to ban the burning or other desecration of the flag of the United States? Can one support the right to publish the cartoons and also support a flag-burning amendment? If so, how does one distinguish between the two?

One can naturally come up with some distinctions — among other things, banning all depictions of Mohammed burdens a wider range of speech (e.g., pretty much any film biography of Mohammed) than banning flagburning would — but I think that on balance these distinctions are unpersuasive. If you want to credibly say to Muslims that they have to tolerate offense to their sacred symbols, you have to tolerate offense to your own sacred symbols, too.

Conversely, as I've argued before, allowing flagburning bans seems likely to help stimulate what I call "censorship envy": If my neighbor gets to ban symbols he dislikes, why shouldn’t I get to do the same? This kind of misplaced desire for equality of repression is a powerful psychological force.

One risk, then, is that banning the desecration of one symbol will help lead to bans on desecration of the other — allowing flagburning bans will change swing voters' views about freedom of offensive speech, or will trigger their concerns about equality, and will lead to bans on desecration of religious symbols.

Of course, it's quite possible that this slippage will be resisted — that even if there's not much of a good logical distinction between flagburning bans and bans on insults to religious symbols and figures, American politics will lead to the adoption of the former but rejection of the latter. But that itself, I think, will be harmful: Right now, when American Muslims are deeply offended by pejorative depictions of Mohammed, we can tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many Americans are deeply offended by flagburning, much as you are deeply offended by depictions of Mohammed, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."

But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we're offended by, but you in the minority don't"? "Our offense at flagburning is reasonable but your offense at depictions of Mohammed with a bomb in his turban is not"? If you were a Muslim citizen of America, would you be persuaded by these arguments? Would you feel better about America because of them?

The First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars. The First Amendment is a truce: "I won't suppress your ideas, and you won't suppress mine." And a ban on flagburning would undermine this truce.

Endowed chairs are all well and good, but just yesterday I realized that what we really need are endowed parking spaces.