The Volokh Conspiracy

Agence France-Presse reports:

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

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

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

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

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

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

What Ken at Popehat said.

UPDATE: David Henderson too.

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

October 29, 2012

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

Dear Members of the Commission:

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

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

Universities: Thus, for instance, San Francisco State University’s College Republicans held an anti-terrorism rally at which they stepped on homemade replicas of Hamas and Hezbollah flags, which contain the word “Allah” in Arabic. The students were apparently unaware of the flags’ Arabic content, but the students’ symbolic expression of contempt for Hamas and Hezbollah would be constitutionally protected even if they knew what the flags contained — Hamas and Hezbollah are not immunized from such expressions by the religious content of their flags.

Yet offended students filed charges of “attempts to incite violence and create a hostile environment” and “actions of incivility,” prompting a university “investigation” that lasted five months. The university defended the process, noting that the complaint was not “about the desecration of the flag,” but about “the desecration of Allah.” It took a federal lawsuit and an injunction by a federal judge to strike down the unconstitutional speech code under which these complaints were filed.

Likewise, at Century College, a public school in Minnesota, administrators ordered a professor to take down copies of the Mohammed cartoons that she had posted on a bulletin board outside her office. At Purdue University, Muslim students claimed that a professor’s statements criticizing Muslims on his Facebook page were “discrimination” and “harassment,” and called for his firing; it took several months for the university investigation to absolve the professor of these charges.

Continue reading ‘U.S. Commission on Civil Rights Testimony on the First Amendment and Anti-Muslim/Anti-Islam Speech’ »

The advertisement, which the New York Metropolitan Transportation Authority was also ordered to run a few months ago, is this one:

The D.C. agency originally accepted the ad, scheduled to run Sept. 24, but then “deferr[ed]” it indefinitely on Sept. 18 “due to the situations happening around the world at this time” (apparently referring to the riots and murders overseas that were apparently partly contributed to by the YouTube release of the “Innocence of Muslims” video). Last Friday, a federal district court concluded that this likely violated the First Amendment, and ordered that the ad run starting 5 pm Eastern today. No word on whether the MTA would have likewise banned an ad quoting Hillary Clinton’s condemnation of the Libyan consulate attackers — who likely saw themselves as indeed waging “jihad,” though against America rather than Israel — as a “small and savage group,” or the Palestine Solidarity Campaign’s claim that “The ‘Freedom Flotilla’ bearing supplies in May 2010 was savagely attacked by the Israeli navy.”

UPDATE: A quick thought on the underlying constitutional question, largely based on my earlier post and also this one: I sympathize with the arguments that the government, acting as service provider, should be able to exclude material that is likely to greatly alienate or offend some of its customers, while still making money from material that won’t have that effect. But the Court has generally rejected this argument, at least when it comes to the government’s discriminating within the category of ideological expression. The Court has concluded that viewpoint-based restrictions, even on government property that isn’t a “traditional public forum,” are unconstitutional. And this makes some sense, given just how much money and property the government owns (especially once one goes beyond just access to physical property, and gets to access to broadly available government benefit programs, such as charitable tax exemptions).

Now perhaps one can argue that, though the government generally may not suppress speech (or even impose mild extra costs on the speech) because of the threat of violent retaliation by those who disapprove of the speaker’s viewpoint, see Forsyth County v. Nationalist Movement (1992), that shouldn’t apply to government property such as buses. Restrictions based on the threat of violent reaction to the speaker’s viewpoint, the argument would go, are content-based but viewpoint-neutral from the perspective of the government, so they can’t usually be imposed (see Forsyth) but they can be in “designated public fora,” such as buses. But a recent federal appeals court decision suggests the contrary, and I think rightly so.

From The Guardian (UK) (Sept. 11, 2012):

Channel 4 has cited concerns over security as the reason for cancelling a planned screening at its headquarters this week of a documentary film questioning the origins of Islam.

Islam: The Untold Story, which claimed there was little written contemporary evidence about the origin of the religion, sparked more than 1,000 complaints to Channel 4 and the media regulator after it was broadcast two weeks ago.

Its presenter, the historian Tom Holland, was also the focus of substantial criticism, as well as abuse, on Twitter.

The channel said in a statement on Tuesday: “Having taken security advice we have reluctantly cancelled a planned screening of the programme, Islam: The Untold Story. We remain extremely proud of the film, which is still available to view on 4oD.” ...

[S]ources close to the channel said the screening had been cancelled after advice was taken from “relevant security authorities”....

The Daily Mail (UK) offers more: “Channel 4 has been forced to cancel a screening of the controversial documentary Islam: The Untold Story, after the presenter was threatened with physical violence.”

UPDATE: I at first failed to include the Daily Mail quote, which is a bit more specific on the nature of the security concerns; sorry about that.

In recent days, I’ve heard various people calling for punishing the maker of Innocence of Muslims, and more broadly for suppressing such speech. During the Terry Jones planned Koran-burning controversy, I heard similar calls. Such expression leads to the deaths of people, including Americans. It worsens our relations with important foreign countries. It’s intended to stir up trouble. And it’s hardly high art, or thoughtful political arguments. It’s not like it’s Satanic Verses, or even South Park or Life of Brian. Why not shut it down, and punish those who engage in it (of course, while keeping Satanic Verses and the like protected)?

I think there are many reasons to resist such calls, but in this post I want to focus on one: I think such suppression would likely lead to more riots and more deaths, not less. Here’s why.

Behavior that gets rewarded, gets repeated. (Relatedly, “once you have paid him the Dane-geld, you never get rid of the Dane.”) Say that the murders in Libya lead us to pass a law banning some kinds of speech that Muslims find offensive or blasphemous, or reinterpreting our First Amendment rules to make it possible to punish such speech under some existing law.

What then will extremist Muslims see? They killed several Americans (maybe itself a plus from their view). In exchange, they’ve gotten America to submit to their will. And on top of that, they’ve gotten back at blasphemers, and deter future blasphemy. A triple victory.

Would this (a) satisfy them that now America is trying to prevent blasphemy, so there’s no reason to kill over the next offensive incident, or (b) make them want more such victories? My money would be on (b).

And this is especially so since there’ll be plenty of other excuses for such killings in the future. It’s not like Muslim extremists have a clearly defined, unvarying, and limited range of speech they are willing to kill over (e.g., desecrating Korans and nothing but). Past history has already proved that; consider the bombings and murders triggered by the publication of the Satanic Verses.

What’s more, there are lots of people in the Muslim world who are happy to stoke hostility. (Neither the recent riots nor the Mohammed cartoon riots were simply spontaneous reactions to what was done in America or Europe; they came about after people in the Middle East took steps to encourage anger on the part of their fellow Middle Easterners.) Even if something doesn’t outrage lots of people at first, some will be happy to try to explain to them why they should indeed be outraged.

So imagine what would likely happen the next time someone writes a book like the Satanic Verses, or makes a movie — even a serious movie — depicting Mohammed, or perhaps reproduces the Mohammed cartoons in the course of making a movie about the cartoon controversy. Or imagine perhaps what might happen if extremist Muslims in the Middle East start trying to generate outrage over American Christians trying to convert some Muslims to Christianity, whether in America or using American Web sites to try to reach Middle Eastern countries.

I don’t have statistics on how many people would be willing to riot over such conversions, but 84% of Egyptian Muslims support enacting a law providing “the death penalty for those who leave the Muslim religion.” If even a tiny fraction of this 84% can be persuaded to riot over Americans’ trying to persuade Muslims to leave the Muslim religion, that could be plenty of people willing to murder. (See also this example of mob attacks on churches in Egypt “stoked in part by hard-line Islamic clerics warning that Christians were trying to convert Muslim women.”)

“Last time this happened, and our men killed four Americans, the Americans saw the light and decided to punish the blasphemers. They agreed that blasphemy must be suppressed — and yet they now shamelessly refuse to act on their promises!” (I doubt that the mob will have much of a sense of the nuances of American legal doctrine, so it’s a safe bet that they won’t know that the hypothetical new law doesn’t extend to “serious literature” or “genuine debate” or religious proselytizing; plus they might not view the Satanic Verses and the like as “serious literature” or “genuine debate.”) “Maybe the Americans forgotten what happened last time — but we haven’t. Let’s give them a taste of the same medicine that worked so well back then.”

Now the people I’m describing of course won’t include all Muslims, or most Muslims. But events over the past decades have shown that there are enough extremist Muslims (whatever their fraction of the Muslim population might be) who are willing to riot and murder in reaction to what they see as blasphemy. Obviously this is a large enough and dangerous enough subset of Muslims that some people are willing to try to forcibly suppress American speech in order to appease them. Will our accommodating these Muslim extremists diminish that impulse, or fuel it?

(I suppose some people might think that America’s good-faith efforts to try to suppress blasphemy would change some of the would-be rioters’ attitudes, as a gesture of goodwill towards their sensibilities. But the four murders were in Libya, a country that we had just helped save from a brutal tyrant, and were committed by Muslim extremists who were freer and more powerful as a result of our military help to the Libyan revolutionaries — if that didn’t build enough goodwill to save our people’s lives, then I don’t see how enacting a new speech restriction would.)

So what will we do after that next round of killings? Broaden the speech restriction, so that the Satanic Verses and proselytizing of Muslims and anything else that might provoke extremist Muslim murderers would be banned, too? Or hold the line, risking infuriating the extremists even more? People tend to be more angered by what they see is a broken promise of appeasement (even if they view the promise as much broader than its actual terms) than by a stubborn refusal to deal in the first place. And of course once the American government proves willing and able to suppress some blasphemy, it will be even easier to view the American government as responsible for refusing to suppress other blasphemy.

Moreover, this lesson — if you want to shut up the blasphemers, just kill enough Americans in response — will likely be learned not just by extremist Muslims but by others. Extremists of other religions might do the same with regard to American speech (or American behavior) that angers them. (Hindu religious riots and threats of violence seem to be limited right now to what the rioters and threateners see as provocations in India, but all it takes is for a few extremists to take the next step.) So would extremist nationalists of various nations who are angered by what American individuals or the American government is doing, or extremists of various transnational ideologies who are likewise anti-American.

To be sure, there is already some incentive for people in these groups to riot and kill to try to get their way (as well as some disincentive). But, again, will the example of our suppressing American speech to appease extremist Muslims be ignored by those other extremists? Or will it increase their incentives to adopt the tactics that worked so well for extremist Muslims? Remember the trifecta: kill Americans, visibly force America to change its ways, and on top of that suppress the blasphemy or other behavior that you dislike, win win win. That’s a hard temptation to resist.

That’s why it seems to me to actually be safer — not just better for First Amendment principles, but actually safer for Americans — to hold the line now, and make clear that American speech is protected even if foreigners choose to respond to it with murder. That would send the message, “murder won’t get you what you want.” Not a perfectly effective message to be sure, but a better one than “murder will get you what you want.”

The LA Times reports:

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

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

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

UPDATE: Jesse Walker comments at Hit & Run.

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

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

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

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

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

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

But how can this be done, given the First Amendment? Well, in Treaties, International Law, and Constitutional Rights, published in 2003 in the Stanford Law Review (one of the top three law journals in the country, Prof. Spiro suggested a mechanism: American decisions to sign on to international treaties may cut back on the scope of the protections of the Bill of Rights, for instance the First Amendment.

True, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): “[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution” (speaking of the Bill of Rights). But, Prof. Spiro argues, this supremacy of the Bill of Rights really isn’t that strong: The President and the Senate can, in the long run, “insinuat[e] international law” that would create “a partial displacement of constitutional hegemony” (for instance, with “an international norm against hate speech ... supply[ing] a basis for prohibiting it, the First Amendment notwithstanding”). “In the short term,” international norms would and should be “relevan[t] ... in domestic constitutional interpretation.” But “In the long run, it may point to the Constitution’s more complete subordination.”

Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights — “If some constitutional norms are more appropriately set at the international level” (and he believes they are), “that should justify a treaty power that, in some cases, overcomes even the Bill of Rights” — and predicting that treaties will over time do so. Courts, he acknowledges, would try to “maintain[] the formal hegemony of the domestic constitution,” but “this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run.” “Constitutional rights ‘adjusted’ by treaty norms are changed by them. The Constitution is read to conform with the treaty.”

Here are the closing paragraphs of Prof. Spiro’s article (emphasis and some paragraph breaks added), so you can see some of these quotes in context, and so you can see Prof. Spiro’s view on how decisions such as Atkins v. Virginia — which cited international law in interpreting the Eighth Amendment as banning the execution of mentally retarded murderers — can lead to a narrowing of other constitutional protections, such as the First Amendment.

[T]his analysis supplies a normative basis for national decisionmakers to rebalance rights. To take the concrete case, an international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding.

C. Insinuating International Law

It is unlikely in the extreme that the treatymakers would undertake such a frontal assault against the supremacy of constitutional rights given the clear current lack of constitutional authorization to constrain rights on international law grounds. The consensus behind constitutional supremacy remains formidable; given the implausibility of a formal constitutional amendment reversing constitutional doctrine on the question, it would take a constitutional moment of the highest order to overcome the supremacy norm. As a matter of constitutional analysis, then, there is no real argument that the law has changed or is likely to change in the future.

The analysis is not, however, irrelevant to current constitutional practice, for it also justifies putting international regimes to work in the context of constitutional interpretation. This use of international regimes has been engaged. In U.S. courts, those asserting rights are no longer embarrassed to deploy international law arguments, as they once were. The United States Supreme Court is regularly subjected to such arguments, especially from amici (including foreign government amici). International law is becoming part of the vocabulary of American constitutional law. Although its doctrinal place remains unsettled, international law appears poised to make unprecedented inroads in the making of American constitutional law.

The constitutional place of international norms is most hotly contested in the death penalty context. Blocking the execution of mentally retarded offenders, the majority in the 2002 decision in Atkins v. Virginia adverted to the “overwhelming[] disapprov[al]” of such executions “within the world community.” That observation, although buried in a lengthy footnote, generated intense opprobrium from each of two dissents in the case. Justice Rehnquist argued that “if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant.” For his part, Justice Scalia sarcastically disclaimed the relevance of the international community, “whose notions of justice are (thankfully) not always those of our people.” But if the suggestions above are tenable, it is no longer useful to speak in terms of “our people,” and an international consensus may be relevant to the determination of constitutional rights norms.

This battle is now being fully engaged, on academic, judicial, and policy fronts. Deploying international law as an interpretive tool reflects a defensive strategy, ostensibly a process of domestication rather than one of submission. This may mask what is, in fact, a partial displacement of constitutional hegemony. International law may be a process in which the United States and U.S. entities participate, but it is not a creature of the Constitution. On the other hand, resistance and insulation may no longer be viable options. One can expect more frequent deployment of international norms as part of the domestic rights discourse. In the long run, international norms may be played, not merely as persuasive agents, but as trumps.

Conclusion

Constitutional rights have presented a discursive bulwark against the encroachment of international law. The continuing refusal to contemplate the international determination of rights betrays the embedded nationalist orientation of constitutional theory, and the field of foreign relations law proves to be no exception. These nationalist assumptions may be conceptually vulnerable in the face of the changing architecture of international law and community. Constitutional rights have bowed to the treaty power and the exigencies of foreign relations as a matter of historical practice, even as the inviolability of domestic rights interpretation has been set as a matter of constitutional faith. Accompanying doctrines of constitutional hegemony, deviations notwithstanding, were justified in a world in which law offered no protection of individual rights.

As the regime of international human rights grows thick, however, that justification should no longer stand unchallenged. As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable.

In the short term, this argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution’s more complete subordination.

Thanks to Peter Brownback for the pointer to yesterday’s post from Prof. Spiro.

That’s what MSBNC contributors Mike Barnicle and Donny Deutsch, the University of Pennsylvania’s Prof. Anthea Butler (Religious Studies), and of course the Egyptian government argue with regard to the movie that mocks Mohammed:

Prof. Butler: “Good Morning. How soon is Sam Bacile going to be in jail folks? I need him to go now.When Americans die because you are stupid...” “And yes, I know we have First Amendment rights,but if you don’t understand the Religion you hate, STFU about it. Yes, I am ticked off.” “And people do to jail for speech. First Amendment doesn’t cover EVERYTHING a PERSON says.” “[T]he murder of the Ambassador and the employees is wrong, wrong. But Bacile will have to face his actions which he had freedom[.]”

Mike Barnicle: “Given this supposed minister’s role in last year’s riots in Afghanistan, where people died, and given his apparent or his alleged role in this film, where, not yet nailed down, but at least one American, perhaps the American ambassador is dead, it might be time for the Department of Justice to start viewing his role as an accessory before or after the fact.”

Donny Deutsch: “I was thinking the same thing, yeah.”

The Egyptian government: “We ask the American government to take a firm position toward this film’s producers within the framework of international charters that criminalise acts that stir strife on the basis of race, colour or religion.”

From The Jerusalem Post:

Egged [the largest bus company in Israel] and the company in charge of bus advertisements have decided that rather than be forced to put up ads with women in Jerusalem due to court action claiming discrimination against the gender, they will remove all people — both men and women — from the bus advertisements.

Starting August 1, Cnaan Advertising quietly removed all persons from their bus advertisements in the capital. The policy was clearly laid out in a letter from Egged to Cnaan obtained by The Jerusalem Post: “In the Jerusalem area there will be no images of people at all, though in other parts of the country it will be possible to use such images,” the letter from July 31 stated.

Cnaan, the company responsible for the bus ads, claims that haredi [ultra-Orthodox-Jewish -EV] extremists have defaced buses with paint and stones and even set an empty bus on fire because of ads featuring images of women they deemed “immodest.” Cnaan refused to run any advertisements with women, claiming that it will cause the company financial damage, and activists accused the company of discrimination against women. After the Transportation Ministry said it would refuse to work with any companies that discriminate based on gender on July 11, legal advisers from Egged and Cnaan decided the best course of action would be to remove any people from bus advertisements....

Whether the government was right in refusing to work with the company unless it treated ads depicting men and ads depicting women equally is a separate question. But while the company decided not to run ads depicting men because of the threat of government action, it’s clear that the company decided not to run ads depicting women because of the fear of thuggery by religious extremists. I sympathize with the company’s predicament, but the bottom line is that the thugs won: Their threat of vandalism and arson has led to the suppression of speech that they dislike.

And when thugs win, that provides more incentive for thuggery, not just by thugs of this ideological stripe but by others as well. It seems that there is serious peril for Israeli democracy and liberty here, and a serious need to do something about this sort of religious extremism that is willing to enforce its censorship schemes not just by social pressure but by criminal attack.

Thanks to Opher Banarie for the pointer.

I didn’t hear about this when the decision was handed down in 2003, and when it was apparently enforced in 2009 and 2010, but I just noticed it and thought it would be a good addition to our Blasphemy category and our Freedom of Speech Restricted by Fear of Thugs category.

From Prof. Sherry Colb, about the 2003 decision; other press accounts echo this (if any of you can point me to an English text of the opinions, please do):

Earlier this month [April 2003], the Israeli Supreme Court, in a 5-4 decision, refused to permit women to pray out loud at the Western Wall (“the Wall”) in Jerusalem. Known in Hebrew as the “Kotel Ha’Maaravi,” the Wall is all that remains of the second Jewish Temple destroyed by the Romans almost 2000 years ago. It is one of the holiest sites in existence for Jews around the world.

The plaintiffs in the case called themselves the “Women of the Wall.” They asked the Israeli Court to recognize their right to pray out loud at the Kotel, after they had repeatedly encountered physical and verbal abuse from the Ultra-Orthodox each time they tried to do so on their own.

The women had hoped and expected the Court to agree that they, as a matter of equality, should be able to assemble and pray just like men have done for as long as the Wall has stood. Besides formalizing the legal equality of women, such a ruling could help fortify the resolve of police who must invariably come to the women’s aid and repel acts of aggression.

On April 6, the women’s hopes were dashed. The Israeli High Court concluded that because of the violence that plaintiffs’ religious practice provokes on the part of Ultra-Orthodox spectators, the Women of the Wall would have to conduct their services elsewhere [at another portion of the Wall]. In the estimation of the Court, female assembly and vocal prayer at the Wall could endanger public order and lead to rioting by Ultra-Orthodox Jews.

And in 2009 and 2010, two women were indeed arrested for praying at a portion of the Wall covered by the 2003 decision: “Nofrat Frenkel was pushed into a police van and detained for the ‘crime’ of reading from a Torah scroll and wearing a tallit, and Anat Hoffman, a founder of Women of the Wall, was arrested, interrogated and fingerprinted for a similar ‘crime.’”

The New York Times ran this ad a few days ago:

Pamela Geller responded by submitting this ad (click here for a zoomable version):

Here is the New York Times‘ response to the submission, according to Geller:

Bob Christie, Senior Vice President of Corporate Communications for the New York Times, just called me to advise me that they would be accepting my ad, but considering the situation on the ground in Afghanistan, now would not be a good time, as they did not want to enflame an already hot situation. They will be reconsidering it for publication in “a few months.”

The Times is of course entitled to choose what ads to run. But, assuming Geller’s account of the Times‘ response is correct, that response simply proves one of Geller’s points: Almost no Catholics are likely to respond violently even to harsh criticism of the Catholic Church — but enough Muslims are likely to respond violently to harsh criticism of Islam (whether the response is against the critic or against others) that the Times itself views such criticism as unsafe. There are plenty of peace-loving Muslims, but unfortunately there are also enough extremist Muslim thugs to affect what the Times is willing to publish.

Dariano v. Morgan Hill Unified School District (N.D. Cal.), decided the day before yesterday, upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)

The decision might well be correct under Tinker v. Des Moines Independent Community School Dist. (1969), which allows a “heckler’s veto” in K-12 school: Schools may indeed restrict student speech when it’s likely to cause substantial disruption, even when the disruption stems from other students’ hostility to the speech. As I mentioned in an earlier post, I think the speech restriction violates a California statute that gives students extra protection, but that claim wasn’t raised in this federal lawsuit.

Yet while the judge might have been right in his decision, the situation in the school seems very bad. When we’re at the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — on May 5 or on any other day — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech), something is badly wrong. Here’s an excerpt from the court opinion describing the facts that led the court to uphold the restriction:

On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students. This altercation involved an exchange of profanities and threats were made. A makeshift American flag was put on one of the trees on campus. A group of Caucasian students began clapping and chanting “USA” as this flag went up. This was in response to a group of Mexican students walking around with the Mexican flag. One Mexican student shouted “fuck them white boys, fuck them white boys.” Vice–Principal Rodriguez directed the minor to stop using such profanity. The minor responded by saying “But Rodriguez, they are racist. They are being racist. Fuck them white boys. Let’s fuck them up.” Vice–Principal Rodriguez removed the minor from the area....

When Plaintiff M.D. wore an American flag shirt to school on Cinco de Mayo 2009, he was approached by a male student who shoved a Mexican flag at him and said something in Spanish expressing anger at Plaintiffs’ clothing....

Continue reading ‘Not Safe to Display an American Flag in an American High School’ »

From The Advocate (Baton Rouge):

A planned American flag burning at LSU ended before it started when more than 1,000 LSU students and other protestors forced police to intervene before violence broke out.

LSU graduate student Benjamin Haas had planned to burn an American flag at noon Wednesday on the Parade Ground to promote his First Amendment rights and in support of an LSU student arrested last week for stealing and burning a flag.

Haas received a peaceful protest permit from LSU, but he had not yet received a burn permit from the parish yet, so he decided not to burn the flag, according to LSU.

Haas did have a prepared statement to read, but an angry mob mentality took over and LSU Police escorted him out in a police car for his safety before he could talk.

The “angry mob mentality” reference is obviously the author’s own opinion, and this story on a local TV news station’s site reports only that, “Several people tossed water balloons and water bottles at the man. The graduate student was then escorted away by LSU Police.” But while tossing water balloons and water bottles in order to suppress speech (or symbolic expression, whether it’s burning a flag or burning a Koran) isn’t the worst form of thuggery, it is a form of thuggery nonetheless (assuming the press accounts are correct).

Note that if there’s a content-neutral rule that requires a burn permit for open burning of things (other than very small items such as cigarettes, cake candles, and the like), that requirement might well be applicable to flag burning as well. But I’m pretty sure that the bottle-throwers weren’t trying to ensure faithful enforcement of fire codes, but were trying to use violence and the threat of more violence — possibly (depending on the facts) just petty violence, but violence nonetheless — to suppress expression they disapprove of.

I hope the thugs are prosecuted, just as I’m glad that that the earlier flag thief (a different person from Haas, who apparently didn’t steal the flag he wanted to burn) is being prosecuted. Naturally, those who were simply counterdemonstrating are expressing their own views, and have every right to do that. But the line between speaking and throwing bottles at other speakers is a pretty clear line, and it’s the line between free speech (quite possibly highly laudable free speech) and thuggery.

UPDATE: See also this LSU student newspaper article; thanks to commenter Urso for the pointer.