The Volokh Conspiracy

Lloyd v. Hardesty (Cal. Ct. App. May 31, 2013) (nonprecedential); for more on the factual backstory, see an earlier opinion in the case:

The trial court entered a ... restraining order prohibiting Wax from harassing Lloyd or her daughter. In particular, the court’s order provided that “(1) Wax ‘shall not make direct contact with [] Lloyd under any circumstances or conditions regarding [] Lloyd’s daughter and the use of the property at [] Lloyd’s residence unless done by written instrument’; (2) Wax ‘may not water her plants so as to cause any water to spill over on to the property where [] Lloyd resides’; (3) Wax ‘may not follow [] Lloyd or her daughter to any location’; (4) Wax ‘may not use terms such as “nigger,” while in earshot of [] Lloyd’; and (5) Wax ‘shall not refer to the “KKK,” under any circumstances, whether she is speaking directly to [] Lloyd or musing to herself, when within earshot of [] Lloyd or her daughter.’” ...

Wax appeals, contending that the court’s order lacks an evaluation of the factors for the issuance of a restraining order and is not based on clear and convincing evidence. We agree, and therefore again remand the matter to the trial court to hold a hearing, to make the requisite evaluation of the evidence, provide any reasoning for its ruling including any relevant authority, and set forth any findings made on clear and convincing evidence. As section 527.6, subdivision (i) provides, “[a]t the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.” ...

In addition, we note that the ... [order] is vague and overbroad in reference to Wax’s speech. The order prohibits Wax from “us[ing] the term ‘nigger’ when referring to Plaintiff or her daughter.” A prior restraint on speech is highly disfavored and presumptively violates the First Amendment. Hence, any injunction on speech must be narrowly drafted and sufficiently precise to meet constitutional requirements.

The order is reversed and the matter is remanded for proceedings consistent with this opinion.... On our own motion and in the interests of justice, all further proceedings shall be heard before a judicial officer other than the judicial officer who issued the order we have just reversed [for the second time in this case, and based on much the same analysis both times -EV].

The court doesn’t discuss the “KKK” prohibition (which seems to have been related to defendant’s allegedly threatening “to have [the] KKK get” plaintiff), but it too has been vacated — at least for now — given that the entire order has been vacated.

The Jerusalem Post reports that the Greek Prime Minister and his party no longer oppose this bill, which I take it makes it much more likely that it will get enacted. The bill seems to be an attempt to go after the neo-Nazi Golden Dawn party, but — unsurprisingly when it comes to such speech restrictions — it sweeps much more broadly than that. “Other genocides” would, of course, cover not just the Holocaust, the history of which is unusually well-settled by historical standards, but also to debates about the Turkish killings of Armenians during World War I, Europeans’ treatment of American Indians, discussions of various modern genocides in places like Rwanda and Sudan, and more. (For an example of how some such genocide denial laws are already being used against legitimate historians of, for instance, World War I, see here.)

I think even narrow versions of such laws, focused on the Holocaust, are improper. Among other things, we can have confidence in the historians’ consensus about the past only to the extent that we know that this consensus has withstood and continues to withstand new evidence and new arguments. If it’s illegal to question the consensus, that makes the consensus less worthy of belief, not more.

But the problem with attempts to ban Holocaust denial isn’t limited to this — rather, and entirely unsurprisingly, such laws over time become broader and broader. Once the legal system and society accept the principle that historical claims (and moral judgments about the history) can be outlawed, the principle can no longer be logically limited to one unusually well-documented event. The way “to avoid these ends [is] by avoiding these beginnings.”

Thanks to Prof. Bill Poser for the pointer.

So reports the South Wales Argus (thanks to Prof. Bill Poser for the link):

A NEWPORT shopkeeper has been forced by police to remove a T-shirt from his shop window because they felt it “could be seen to be inciting racial hatred.”

Matthew Taylor, 35, the owner of Taylor’s clothes store on Emlyn Walk in the city, printed up and displayed the T-shirt with the slogan: “Obey our laws, respect our beliefs or get out of our country” after Drummer Lee Rigby, 25, was killed in near Woolwich barracks in London last week.

But following a complaint from a member of the public, police came to his store and threatened to arrest him unless he removed the Tshirt from sight....

A spokeswoman for Gwent police confirmed: “We did have a call from a member of the public. We visited the shop and asked him to remove it (the T-shirt) as it could be seen to be inciting racial hatred.” ...

Newport city councillor, Majid Rahman said: “I believe in freedom of speech and defend his rights to say what he wants, but once it starts offending people then it’s a police matter and it’s up to them whether they think it’s broken any laws.”

But of course — freedom of speech is all well and good, but once it starts offending people ....

So reports The Tullahoma News (Tennessee), in an article that has been heavily linked to and quoted in recent days:

A special meeting has been scheduled [for June 4] for the stated purpose of increasing awareness and understanding that American Muslims are not the terrorists some have made them out to be in social media and other circles....

Special speakers for the event will be Bill Killian, U.S. attorney for the Eastern District of Tennessee [i.e., the chief federal prosecutor for that district -EV], and Kenneth Moore, special agent in charge of the FBI’s Knoxville Division....

Killian and Moore will provide input on how civil rights can be violated by those who post inflammatory documents targeted at Muslims on social media.

“This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion,” Killian told The News Monday. “This is also to inform the public what federal laws are in effect and what the consequences are.” ...

Killian referred to a Facebook posting made by Coffee County Commissioner Barry West that showed a picture of a man pointing a double-barreled shotgun at a camera lens with the caption saying, “How to Wink at a Muslim.”

Killian said he and Moore had discussed the issue.

“If a Muslim had posted ‘How to Wink at a Christian,’ could you imagine what would have happened?” he said. “We need to educate people about Muslims and their civil rights, and as long as we’re here, they’re going to be protected.”

Killian said Internet postings that violate civil rights are subject to federal jurisdiction.

“That’s what everybody needs to understand,” he said.

Killian said slide show presentations will be made.

As a Politico post points out,

While threats directed at individuals or small groups can lead to punishment, First Amendment experts expressed doubt that the government has any power to stop offensive material about Islam from circulating.

“He’s just wrong,” said Floyd Abrams, one of the country’s most respected First Amendment attorneys. “The government may, indeed, play a useful and entirely constitutional role in urging people not to engage in speech that amounts to religious discrimination. But it may not, under the First Amendment, prevent or punish speech even if it may be viewed as hostile to a religion.”

“And what it most clearly may not do is to stifle political or social debate, however rambunctious or offensive some may think it is,” Abrams said.

My one reservation is that it’s hard from the newspaper article to tell precisely what U.S. Attorney Killian said; misparaphrases sometimes happen, even more commonly than misquotes. If his claims about the civil rights laws was limited to specific true threats of violence against particular people or particular institutions, such speech may indeed be punishable under the “true threats” exception to the First Amendment. But indeed “inflammatory documents targeted at Muslims” generally are constitutionally protected, so if Mr. Killian indeed used those words or ones that are fairly paraphrased as those words (or suggested that the “How to Wink” posting was actually illegal rather than just wrong), then Floyd Abrams’ criticism is entirely apt. If anyone has any more details about what Mr. Killian told the reporter, or has said in other venues, or will say Tuesday, I would love to hear it. (I found this 2012 speech of Mr. Killian’s about civil rights and Muslims, but it doesn’t discuss this particular issue.)

From the Mirror (UK):

A 22-year-old man has been charged on suspicion of making malicious comments on Facebook following the [brutal public murder by jihadists -EV] of British soldier Lee Rigby.

Benjamin Flatters, of Lincoln, was arrested last night [and charged] after complaints were made to Lincolnshire Police about comments made on Facebook, which were allegedly of a racist or anti-religious nature....

A second man was visited by officers and warned about his activity on social media, the spokesman added....

The charge comes after two men were earlier released on bail following their arrest for making alleged offensive comments on Twitter about the murder....

A 23-year-old and a 22-year-old, both from Bristol, were held under the Public Order Act on suspicion of inciting racial or religious hatred.

Detective Inspector Ed Yaxley, of Avon and Somerset Police, said: “On Wednesday evening, we were contacted by people concerned about comments made on social media accounts.

“We began inquiries into the comments and at around 3.20am two men, aged 23 and 22, were detained at two addresses in Bristol.

“The men were arrested under the Public Order Act on suspicion of inciting racial or religious hatred. Our inquiries into these comments continue.

“These comments were directed against a section of our community. Comments such as these are completely unacceptable and only cause more harm to our community in Bristol.

“People should stop and think about what they say on social media before making statements as the consequences could be serious.”

I couldn’t find the texts of the allegedly criminal tweets; please let me know if you know what they were. But whatever they were, I suspect the warnings from police officers — coupled with coverage that does not explain what the comments were — would deter people from engaging in a good deal of speech that’s critical of extremist Islam, critical of Islam generally, or critical of allowing further immigration from Muslim countries (though note that in this instance the murderers were apparently Muslim converts from Nigerian Christian families).

Here are the relevant details from the affidavit in support of the arrest warrant:

That, on February 25, 2013 at about 0855 an email was sent to the Student Bar Association (SBA) email account, (SBAIULAWSTUDENT@uconn.edu) which is located on the University of Connecticut School of Law, at 45 Elizabeth Street, Hartford, CT, from the account of a UConn Law Student named Anya K. Bargh (ANYA.BARGH@students.law.uconn.edu). This email stated: “Let’s celebrate diversity by having the next dean NOT be Jewish”

That, on February 25, 2013 at about 0910 hrs another email was sent to the SBA from Bargh’s UConn Law account stating: “Here’s a hint, um, getting pretty sick from our all jew cast with a nigger on top”. That, the emails were opened by a Student Bar Association Committee member, Jessica Signor. Signor said this email stated: “Let’s celebrate diversity by having the next dean NOT be Jewish” was in response to an email that the Student Bar Association had sent all the students in reference to the new Law School Dean Search Committee. The Faculty/Staff and students who viewed these emails were offended and upset by the email.

That SBA President Franklin Perry also received the emails. He said that during his experience here at UConn Law School, this is the first time in 3 years he had ever experienced anything close to bigotry. Perry said he is an African American male and was shocked and in disbelief. Perry said he doesn’t want the University of Connecticut in general to be affected by the perception of this type of person. He said he feels the University does not affiliate with these types of people. Perry said at one point he thought Bargh was aiming these comments on him, because he is African American and the President of SBA. Perry said after they forwarded the email to Dr. Brown (their advisor) he found out that the UConn Police Department was investigating the incident and feels it will be handled and taken care of.

That SBA member Matthew Loftus said he went to his apartment and opened up the SBA’s email account and found the email from Anya Bargh. Loftus said the subject line was a reply for the Dean Search Committee. Loftus said the email read: “To celebrate diversity, let’s have our next dean not be a Jew.” Loftus said he thought this was offensive and out of line. Loftus said when he closed that email, he realized Anya Bargh had sent another email and he opened it and it read: “here is a hint, I am getting pretty sick of your all jew cast with a nigger on top.” Loftus said he read it three times could not believe that anybody in law school could give voice to that kind of ignorant hate. Loftus said he is a white non-religious person and was offended by the email. Loftus said he notified the rest of the executive board of the SBA and asked them how this situation is being handled. Loftus said he does not know Anya personally nor had taken any classes with her at the law school. Loftus said if there is a crime that Anya could be charged with, he would like to see her get arrested for it. Loftus said if Anya cannot be arrested he would hope she get expelled from the law school....

That, while this affiant was investigating this incident, this affiant found some accounts under Bargh’s name registered with Yahoo!. Bargh had two Yahoo Flickr accounts under the names of: “anyabargh” and “AKBarbies.” In the AkBarbies public photo screen account, Bargh had written some disparaging remarks to Professors on the Law School Campus. That, Bargh had made some anti-semitic remarks and remarks of a sexual nature. Bargh made a remark about a Professor Peter Lindseth that said “honestly, peter, I hate you so much I would like to see you butchered and shit out like dog food” and “Mr. Lindseth will you please let me such your cock again?”, “It’s over, peter, you’re a faggot and that’s all. Not cute.” These are just a few comments, that Bargh made about Lindseth. Lindseth said when he heard about these comments, he became very upset and afraid for his safety and the safety of his family. Lindseth told this affiant that Bargh is trying to ruin his reputation with these remarks.

That, the affiant became aware that Bargh had made comments about Professor Michael Fischl. Fischl said in the course of his interview with the affiant, he learned to his dismay that he remains on Bargh’s “radar”. Fischl said the affiant showed him one Internet posting by Bargh and read a second one. In the former, Bargh referred to Fischl as a “faggot” with a “gay classroom routine” who should be fired and sent back to Florida (where he had taught before coming to Connecticut in 2006). Fischl said in the other posting, Bargh stated that she was “horny” and wanted to be “slammed” by Fischl and two other professors. Fischl said this does not strike him as a school-girl crush or just letting off steam or fantasies on the Internet. Fischl said the bizarre combination of violent sexual imagery and homophobic slurs represents a direct and vicious attack on him, and her continued fixation on wanting to see him lose his job makes her afraid of what else she would do – beyond fabricating criminal and sexual harassment charges, posting vicious slurs on the Internet – to bring harm to him, Fischl gathers he is not the only one being targeted by Bargh. Fischl said the era of Newtown, Virginia Tech and Aurora, it is extremely worrisome to him that Bargh will eventually escalate her attacks and bring physical harm to him and/or others. Fischl said he sincerely hopes Bargh can get the much-needed help, but he is desperately concerned that she be stopped in the meantime.

Professor James Stark was also mentioned under Bargh’s Flickr account comments. It stated “Fuck you James Stark. You owe me $3000 in pig fat.["]

This affiant has spoken to these three professors that Bargh mainly targeted in her Flickr account and they all have had negative encounters with Bargh, either because of the grades they gave her or she mistook their acts of kindness to help her succeed in law school as sexual advancements. Bargh has filed complaints against Professors when she receives an unacceptable grade and the Professors feel that Bargh is tarnishing their reputations, especially when she posted these negative remarks on Social Media....

Above The Law has a summary of the story, with links to news accounts; the Hartford Courant likewise reports on it. Bargh wass arrested for second degree breach of the peace [53a-181] and second degree harassment [53a-183].

Bargh seems like a foul individual, and it’s possible that she might be mentally unbalanced to some extent. (My sense is that the latter is what some of the people quoted in the warrant are worried about.) It’s also possible that one of the statements that she posted on her Flickr account — “honestly, peter, I hate you so much I would like to see you butchered and shit out like dog food” — might be a constitutionally unprotected “true threat” of violence, though I doubt it. (State v. LaFontaine (Conn. Ct. App. 2011) also suggests that the harassment statute isn’t properly used to prosecute threats, since threats are covered under “the two criminal threatening statutes, General Statutes §§ 53a-61aa and 53a-62.”) Likewise, some of the posts on her Flickr account might be libelous, if they are seen not as hyperbole or trash talk but as factual allegations, though again I doubt it, and in any event Connecticut doesn’t criminalize libel.

But the bulk of the statements, including the ones that the arrest warrant notes most prominently, are fully constitutionally protected. If a student wants to e-mail the student government to express hostility to Jews or blacks, and to urge that there be fewer Jews and blacks in the law school’s leadership, that’s her First Amendment right. (Indeed, even leaving personal racist slurs on a government official’s office voicemail is constitutionally protected; sending such opinions to an impersonal student government e-mailbox is even more clearly protected.) Likewise, what someone posts on her Flickr account, Facebook account, and the like is constitutionally protected — including if it expresses a wish to be “slammed” by a professor, or insults the professor, or expresses a wish that the professor be fired — unless it is indeed a “true threat” of criminal conduct or a punishable false statement of fact about someone.

It’s rare to see an actual American “hate speech” prosecution, largely because courts recognize that there is no “hate speech” exception to the First Amendment; but this seems to be one example. I am told that the case has been continued until May 29. If anyone has more facts on the story, I’d love to hear them.

Dr. Jogchum Vrielink (coordinator of the Centre for Discrimination Law at the University of Leuven, Belgium) passes this along:

In Belgium a man was convicted for ‘racist hate speech’ because he publicly tore up a Koran, before the eyes of a group of Muslims. The case illustrates the need to protect free speech against those seeking to criminalise ‘Islamophobia’.

On 8 June 2012 a man, identified as Arne S., participated in a demonstration organised by a radical right-wing political party, Vlaams Belang (‘Flemish Interest’), opposing the construction of a mosque in the Belgian coastal city of Ostend. In the aftermath of the demonstration S. tore up a Koran in the presence of a small group of Muslims, with whom he had exchanged words. The public prosecutor indicted S. for incitement to hatred, discrimination and violence on the basis of race and ethnic origin.

The defendant’s attorney called for an acquittal, arguing that no infraction on the anti-racism legislation had occurred. The criminal court in Bruges convicted the man, however, on 11 March 2013. Due in part to the unfavourable criminal history of the defendant, the sentence was relatively severe, consisting of an effective prison sentence of four months and a fine of 600 euros. The court held that the facts were serious and testified to “a blatant lack of tolerance and a highly questionable attitude”.

Terrorist!

The ruling fits within a wider development in the legal world in general, and in Belgium in particular, of increased sensitivity to what is often referred to as ‘Islamophobia’. Another notable example of this trend, within Belgian case law, was the conviction, a few years ago, of an individual who, while drunk, had shouted “Terrorist!” at a sun-tanned, but Caucasian (!), snack bar owner, adding that the latter should “return to his own country”. The criminal court in Ypres regarded this too as racist incitement to hatred. The Centre for Equal Opportunities – a government institution responsible for enforcing the federal Belgian discrimination and hate speech legislation – welcomed this conviction at the time. A representative was quoted saying that the defendant “had targeted a man whom he thought was of foreign descent”, and that – as such – he had had “the intention to affect this person”. “Several people have been convicted for similar statements, but it remains a strong signal by the court”, the Centre’s representative concluded.

On the political level too some are attempting to increase the legal sensitivity for ‘Islamophobia’. Senators Fauzaya Talhaoui and Bert Anciaux, for instance, introduced a draft resolution on 21 February 2013, aimed at the ‘the fight against Islamophobia’. Following the definition offered by the Runnymede Trust, the Senators understand ‘Islamophobia’ to entail the ‘strong presence’ of any of eight elements, including: ‘Islam as monolithic and static’; ‘Islam as inferior to the West and as barbaric, irrational and sexist’; and ‘Islam as violent, providing support to terrorism, and actively involved in a clash of civilisations’. Such ‘Islamophobic’ ideas, Talhaoui and Anciaux contend, “incite to discrimination and racism, and require unequivocal condemnation and judicial prosecution”. They argue that the police and that the office of the public prosecutor should be instructed to treat the issue as an absolute priority.

Continue reading ‘“Racist Hate Speech” Conviction in Belgium for Tearing up Koran in Front of a Group of Muslims’ »

The German government decided not to prosecute the speaker based on this speech, but the U.N. Committee on the Elimination of Racial Discrimination has recently stated the contrary, TBB v. Germany (Feb. 26, 2013). Here’s the speech that, according to the Committee, must lead to a criminal prosecution in countries that have ratified the International Convention on the Elimination of All Forms of Racial Discrimination. (I am pleased to say that the U.S. has not recognized the competence of the Committee to enforce the Convention, though most European countries have; the U.S. has also ratified subject to a specific reservation in favor of the freedom of speech.)

The German cultural journal Lettre International (2009 fall edition, number 86)3 published an interview with Mr. Thilo Sarrazin, the former Finance Senator of the Berlin Senate (from 2002 to April 2009, Social Democratic Party) and member of the Board of Directors of the German Central Bank (from May 2009), entitled “Class instead of Mass: from the Capital City of Social Services to the Metropolis of the Elite”. In this interview, Mr. Sarrazin expressed himself in a derogatory and discriminatory way about social “lower classes”, which are “not productive” and would have to “ disappear over time” in order to create a city of the “elite”. In this context, he stated, inter alia:

[...] The city has a productive circulation of people, who work and who are needed, be they part of the administration or of the ministries. Beside them, there is a number of people, about 20% of the population, who are economically not needed. They live off social welfare (Hartz IV) and transfer income; on a federal level this segment is only 8-10%. This part of the population needs to disappear over time. A large number of Arabs and Turks in this city, whose numbers have grown through erroneous policies, have no productive function, except for the fruit and vegetable trade, and other perspectives will probably not develop either [...].

[...] One must stop talking about “the” migrant. We must look at the different migrant groups. [...]

With the core group of people from Yugoslavia, however, one sees a more “Turkish” problem, the Turkish group and the Arabs slope dramatically [in terms of success]. Even in the third generation, a lot of them lack any reasonable knowledge of German. Many of them don’t even finish school and an even smaller part makes it to the college entrance exam [...].

[...] There is another problem: the lower the class, the higher the birth rate. The birth rates of the Arabs and Turks are two to three times higher than what corresponds to their overall part in the population. Large segments are neither willing nor able to integrate. The solution to this problem can only be to stop letting people in and whoever wants to get married, should do it abroad. Brides are constantly being supplied: the Turkish girl here is married to someone from Anatolia; the young Turkish man gets a bride from an Anatolian village. It’s even worse with the Arabs. My idea would be to generally prohibit influx, except for highly qualified individuals and not provide social welfare for immigrants anymore.

[...] It is a scandal when Turkish boys don’t listen to female teachers because of their culture. Integration is an accomplishment of those who integrate. I don’t have to accept anyone who doesn’t do anything. I don’t have to accept anyone who lives off the state and rejects this very state, who doesn’t make an effort to reasonably educate their children and constantly produces new little headscarf girls. That is true for 70% of the Turkish and for 90% of the Arab population in Berlin. Many of them don’t want any integration, they want to live according to their own rules. Furthermore, they encourage a collective mentality that is aggressive and ancestral [...].

[...] The Turks are conquering Germany just like the Kosovars conquered Kosovo: through a higher birth rate. I wouldn’t mind if they were East European Jews with about a 15% higher IQ than the one of Germans.

[...] If the Turks would integrate themselves so that they would have comparable success in the school system like other groups, the topic would become moot. [...] However, it does not happen like that. Berliners always say that they have a particularly high number of foreigners. This is wrong. The percentage of foreigners in Munich, Stuttgart, Cologne or Hamburg is much higher, but the foreigners there have a smaller percentage of Turks and Arabs and they are of more diverse origin.

[...] We have to completely restructure family policies: away with payments, above all to the lower class. I remember a report in the newspaper “Die Zeit” that stated that every Monday morning, the city cleaning services clean 20 tons of left over lamb from Turkish grill parties in the Tiergarten — this is not a satire. The Neukölln Mayor Buschkowsky spoke about an Arab woman who was having her sixth child to be able to get a bigger apartment through the social welfare law (Hartz IV). We have to say farewell to these structures. One has to assume that human ability is to some extent socially contingent and to some extent hereditary. The road we are following leads to a continuous decrease of the number of intelligent high performers due to demographic reasons. One can’t build a sustainable society that way...

[...] If 1.3 million Chinese are just as intelligent as Germans, but more industrious and in the foreseeable future better educated while we Germans take on ever more of a Turkish mentality, we’ll have a bigger problem [...]

Remind me: How are German citizens to make democratic decisions about immigration policy (either German policy or European Union policy) if people can’t argue that certain immigrant groups are bad for the country? How can they make democratic decisions about whether to support any proposed EU admission of Turkey? After all, admitting Turkey might well substantially increase Turkish immigration into Germany, so citizens who want to think about the admission question might reasonably want to consider the consequences of such increased immigration.

Indeed, how can German and European citizens even criticize restrictions on these arguments — such as the restriction that the U.N. Committee says the law must impose — if they can’t explain why they think that the arguments being restricted are correct? Or is the point that these decisions are forever supposed to be out of the hands of the citizens, with political debate left to the supervision of U.N. Committees?

Marko Milanovic (EJIL: Talk!) has more; thanks to Prof. Marty Lederman for the pointer. See also the dissenting opinion of Committee Member (and Georgetown law professor) Carlos Vazquez.

Philadelphia magazine published an article called Being White in Philly, with the subtitle, “Whites, race, class, and the things that never get said.” Apparently the Mayor of Philadelphia, Michael Nutter, thinks there’s not even a constitutional right to say those things; in a letter to the Philadelphia Human Relations Commission, the mayor argues,

While I fully recognize that constitutional protections afforded the press are intended to protect the media from censorship by the government, the First Amendment, like other constitutional rights, is not an unfettered right, and notwithstanding the First Amendment, a publisher has a duty to the public to exercise its role in a responsible way. I ask the Commission to evaluate whether the “speech” employed in this essay is not the reckless equivalent of “shouting ‘fire!’ in a crowded theater,” its prejudiced, fact-challenged generalizations an incitement to extreme reaction.

The implication — which I think is very strong — that the “speech” is indeed unprotected by the First Amendment under the “incitement” exception is absolutely wrong: Under Brandenburg v. Ohio and Hess v. Indiana, the speech in the article is clearly protected. (It’s true that a narrow range of speech that is intended and likely to produce imminent illegal conduct, with imminent meaning within hours or at most a few days, rather than at some unspecified future time, is unprotected, but the magazine article definitely does not fit within that.) And it’s quite troubling, I think, when a mayor (who has power over, among others, the Police Department) suggests that the expression of opinions that he disapproves of about race is constitutionally unprotected.

The specific call in the mayor’s letter, which is for the Commission to “conduct an inquiry into the state of racial issues, biases, and attitudes within and among the many communities and neighborhoods in the City of Philadelphia,” and to “consider specifically whether Philadelphia Magazine and the writer, Bob Huber are appropriate for rebuke by the Commission,” is not as troubling — both the mayor and the Commission have the right to express their own views, and indeed it is commonly argued that the proper alternative to suppression of speech is counterspeech. But the Mayor’s rationale wasn’t just, “this speech is constitutionally protected but so is our response.” Rather, the Mayor expressly suggested that the speech in the article was unprotected, and therefore punishable outright and not just worthy of public disapproval.

Thanks to John Bennett for the pointer.

I haven’t posted much in the last few days, because I’ve been working on yet another cert petition. (“[T]he burnt Fool’s bandaged finger goes wabbling back to the Fire.”) But I thought I’d pass along a link to a post on this subject by Prof. Howard Friedman (Religion Clause).

Fortunately the target, Lars Hedegaard, was not injured. The BBC reported Feb. 5:

Mr Hedegaard heads Denmark’s Free Press Society, which argues that religious and ideological interests are threatening freedom of expression.

He also heads the International Free Press Society, founded in 2009, which launched an international campaign to support the Dutch anti-Islam politician Geert Wilders’s right to criticise Islam.

Mr Hedegaard was fined in 2011 for making insulting statements about Muslims but Denmark’s supreme court dismissed the judgment the following year.

This is apparently the third such incident in Denmark in a bit over 3 years:

Somali refugee Mohamed Geele was jailed for trying to kill cartoonist Kurt Westergaard [the author of the Mohammed-turban-bomb cartoon -EV] with an axe in January 2010.

Lors Dukayev, a Chechen asylum seeker, was jailed for terrorism over an attempted letter bombing of Jyllands-Posten [which first published the Mohammed cartoons -EV] in September 2010.

That’s what this New Mexico bill would provide:

BULLYING.–

A. Bullying consists of a pattern of intentional conduct, including physical, verbal, written or electronic communication, that creates a hostile environment and substantially interferes with another person’s physical or psychological well-being and that is:

(1) motivated by an actual or perceived personal characteristic, including race, national origin, marital status, sex, sexual orientation, gender identity, religion, ancestry, physical attribute, socioeconomic status, familial status or a physical or mental ability or disability; or

(2) threatening or seriously intimidating.

B. Whoever commits bullying is guilty of a petty misdemeanor. Whoever commits bullying that results in bodily harm or substantial emotional distress is guilty of a misdemeanor.

Note that this is not limited to speech said to a person, but could cover speech about a person — for instance, harsh attacks on a politician, community leader, academic, journalist, and the like based on the person’s religion, wealth, sexual orientation, and the like. And though the bill is being marketed as protecting children, it is not at all limited to speech about children. Indeed, the speech is not on its face limited to speech about any particular individual, and might cover offensive speech about groups as well, though it would be bad enough even if it were limited to speech about a particular person.

Such restrictions are troubling enough (and, I’ve long argued, unconstitutional when not limited to unwanted speech said to the person), when it comes to “hostile work environment harassment” law. But this bill would broaden this to cover speech everywhere, and make it a crime as well.

I blogged about this Thursday, under the heading Indian State Government Temporarily Blocks Release of Spy Thriller, Citing Fear of Riots by Muslims. I thought I’d note two follow-ups: First, director Kamal Haasan has “agreed to seven demands of Muslim leaders, mostly muting of the audio of portions objected to by them,” and it now looks like the movie can indeed be released in Tamil Nadu (the state that had blocked it) — and, presumably, will not face potential violent reprisals.

Second, I’ve been trying to figure out just what what supposedly so offensive to some Muslims that it led the Tamil Nadu government to ban it, claiming fears of rioting. I couldn’t find an objective analysis, but I did see a critical opinion column in an Indian political magazine, Tehelka — notwithstanding its likely biases, I thought I’d excerpt it, though I’d be glad to replace or supplement the excerpt from a more objective source, if readers can pass it along. The column begins by suggesting that there were various behind-the-scenes political consideration behind the Tamil Nadu move, and then briefly summarizes the objections:

Those who have watched the film (including this writer) in states other than Tamil Nadu, have found nothing in the film that should offend the sensibilities of Indian Muslims. Vishwaroopam has been running to packed houses in Andhra Pradesh and Kerala, both states with a significant Muslim population, and there has been no breakdown of law and order....

Vishwaroopam is the story of a Muslim RAW agent, who was once a covert operative in the al Qaeda and later saves New York City from a possible terror attack. The story is quite clear that the villainous Muslims are those who are in the al Qaeda, while the Indian Muslim (played by Kamal) is the hero of the film. The ­entire film is set in Afghanistan and New York.

Muslim groups, however, feel that the al Qaeda terrorists shown reading the Holy Quran would make people at large believe that all Muslims are terrorists. Another objection is to the name ‘Umar’, which the top terrorist (played by actor Rahul Bose) goes by. Muslim organisations say Umar bin-al-Khattab is the name of the second Khalifa in Islam, a revered figure, and the terrorist’s name should be changed. But then the Taliban head is Mullah Omar and no one asked him to change his name....

A PIL [Public Interest Litigation, I think -EV] has also been admitted in the Andhra Pradesh High Court against Vishwaroopam and one of the petitioners, Amjedullah Khan of a political party called Majlis Bachao Tehreek in Hyderabad, says, “It is a calculated move by the fascist ­Hindutva forces through their agents like Kamal Haasan to influence innocent non-Muslims and mislead them about Islam. It is an age-old strategy of anti-Muslim forces to portray Islam in a bad light by ­indulging in blasphemy.”

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.

So holds Bujno v. Commonwealth (Va. Cir. Nov. 2, 2012), which was just posted on Westlaw. The court concluded that the license plate program was a “nonpublic forum” in which the government could restrict speech based on subject matter but not based on viewpoint (a view adopted by other courts as well), and held that the Virginia prohibition on plates that “may be reasonably seen by a person viewing a license plate as socially, racially, or ethnically offensive or disparaging” was unconstitutionally viewpoint-based:

[Under the Virginia DMV rule], plate holders expressing a viewpoint honorific of a particular ethnicity or race may make that expression, but others wishing to express a racially or ethnically disparaging viewpoint may not.

To illustrate, assume that “spud” is a derogatory term for the Irish. According to the Guidelines, a Virginia driver could display an “IRSHPRD” or “LUVIRSH,” tag, but not a “DUMSPUD” or “H8IRSH” tag. One can venerate the Irish, but one cannot disparage the Irish. Thus, the Guidelines impose an impermissible viewpoint restriction.

In this case, Petitioner asserts that “Haji” is an honorific term. Conversely, the DMV asserts that the term “Haji” disparages people of Middle-Eastern descent. Regardless of what Petitioner actually intended, the fact is that the DMV revoked his plates because it believed they could be viewed as offensive. Because the Guidelines would allow Petitioner to praise Middle Easterners, but prohibits him from denigrating them, the Guidelines are unconstitutionally viewpoint discriminatory.

The court also ruled that the Department of Motor Vehicles’ own guidelines barred it from considering the bumper stickers on the car — “God Bless Our Troops / Especially Our Snipers” — in deciding whether the license plate would be seen as offensive or disparaging. But given the court’s constitutional decision, the license plate couldn’t be restricted on the grounds of its social, racial, or ethnic offensiveness in any event.