The Volokh Conspiracy

I blogged yesterday about whether liberal or conservative Americans are more likely to support protections for various kinds of speech, including speech arguing that blacks are genetically inferior — the General Social Survey question that’s most relevant to the debate about protection for supposed “hate speech.” It turns out that liberals are somewhat more likely than conservatives to support protection for such speech, though the gulf isn’t wide, and there’s a substantial split of opinion on both sides.

What about Supreme Court Justices? Since 1970, there have been several cases in which the Court has considered restrictions on what might be said to be “hate speech,” usually racist speech but in one instance misogynistic pornography. As I’ll note below, there are limits to how much this dataset tells us, but I pass it along for whatever it’s worth. So here is the data, with the caveats later. Each vote is classified as “+” if it supported protection for racist or misogynistic speech (or hinted substantially in that direction), “-” if it opposed such protection (or hinted substantially in that direction, and blank if the Justice didn’t express an opinion on the subject.

The bottom line result seems to be much the same as what I described for the public at large — liberals are somewhat more likely than conservatives to support protection for what is sometimes labeled “hate speech,” though the gulf isn’t vast, and there’s a substantial split of opinion on both sides. The same also remains even if we exclude Hudnut (which had to do with sex, and which might be hard to categorize for reasons I mention below) and even if we exclude both Hudnut and Collin (perhaps in trying to limit ourselves to post-1990 cases, to reflect the possibility that both conservative and liberal views on free speech have shifted in recent decades). Indeed, even excluding Hudnut and Collin, the result in terms of total votes shows 75% pro-hate-speech-protection for the liberals, 50% for the moderates, and 67% for the conservatives. If you rearrange some of the categories, the results might change slightly; but on balance, I think this probably captures the situation pretty well.

Now on to the details. First, a few general caveats that might limit the relevance of these cases to “hate speech” debates more broadly: The cases don’t generally deal with any solid attempts to outlaw bigoted advocacy generally, and often focus on very narrow restrictions, such as bans on racist “fighting words” (a subcategory of “fighting words,” which is already a recognized First Amendment exception). The cases may have had other factors in play that influence the Justices, such as broader debates about the death penalty (Dawson v. Delaware) or pornography (Hudnut v. American Booksellers Ass’n). Some of the decisions involved denials of discretionary review, so most of the Justices expressed no opinion on the merits (since the refusal to hear a case is often based on factors other than agreement or disagreement with the decision below). Some of the decisions, especially the denials of discretionary review, are somewhat ambiguous in their positions. No Justice was on the Court for all these cases.

Second, an explanation of my ideological labels for the Justices: As with my earlier posts, I combine liberals and moderate liberals into one group, and conservatives and moderate conservatives into one group. I label White and Powell as moderate because that’s how they have generally been understood as Court-watchers, and I think correctly so, if one looks at their views across a wide range of issues. I label Blackmun a moderate because he was generally seen as a conservative in the 1970s but then a liberal in the late 1980s and 1990s; given the makeup of the cases, that averages out to moderate. I label Stevens a liberal because he was generally seen as a moderate in the late 1970s and early 1980s but then a liberal in the 1990s and 2000s; given the makeup of the cases, that averages out to liberal. (I think Stevens genuinely changed his views on some topics, though not necessarily on free speech; I don’t think his labeling as liberal later in his career can be explained solely by the Court’s becoming more conservative.) I label Souter a liberal because I think he was a moderate liberal throughout his tenure on the Court; though he was seen as a conservative when he was first appointed by President Bush, I don’t think he really changed in any appreciable way, and he was quickly recognized to be a liberal. I label O’Connor and Kennedy as conservative because I think that they are on balance moderate conservatives, even though they’ve at times disappointed conservatives with their votes.

Third, a brief summary of the cases:

1. Smith v. Collin (1978), denying discretionary review, and also the earlier decision in the case denying a stay. These came from the famous litigation over the Nazi parade in Skokie, Illinois, in which the lower court upheld the Nazis’ right to march. Justices White and Rehnquist voted to deny the stay, and Justices White and Blackmun voted to rehear the case; both opinions seemed to express some openness to the continued survival of Beauharnais v. Illinois (1952), a decision that upheld bans on defamation of racial and religious groups (an early form of “hate speech” ban). Beauharnais is widely considered to no longer be good law, given New York Times Co. v. Sullivan and later cases, but I read Justices White’s, Rehnquist’s, and Blackmun’s votes and accompanying opinions as at least suggesting the view that Beauharnais should be still seen as valid.

2. Hudnut v. American Booksellers Ass’n (1986), affirming without opinion the Seventh Circuit decision striking down the Indianapolis anti-pornography ordinance (drafted in large part by Catharine MacKinnon), which banned even pornography that fell outside the existing “obscenity” exception, so long as that pornography presented women “as sexual objects who enjoy pain or humiliation,” “as sexual objects for domination,” “in scenarios of degradation,” “as sexual objects who experience sexual pleasure in being raped,” and so on. The Court’s affirmance was a decision on the merits, but one that set a very narrow precedent. (Such “summary affirmances” were not uncommon until the Court’s jurisdictional statute was changed in the late 1980s.) Chief Justice Burger and Justices Rehnquist and O’Connor voted to hear oral argument in the case, which I read as suggesting that the ordinance might well be constitutional.

3. Dawson v. Delaware (1992) reversed a death penalty determination that was based partly on the defendant’s membership in the Aryan Brotherhood prison gang; the Court held that the membership by itself only showed the “abstract beliefs” of the gang, and wasn’t sufficiently linked at trial to the culpability or future dangerousness of the defendant. Justice Thomas dissented, arguing that such a link was present.

4. R.A.V. v. City of St. Paul (1992) struck down an ordinance that specially punished certain kinds of insulting words that were based on race, religion, and similar categories. Chief Justice Rehnquist and Justices Scalia, Kennedy, Thomas, and Souter held that the ordinance was unconstitutional even if it was limited to so-called “fighting words,” which could generally be banned; selectively banning bigoted fighting words, the majority held, violated the First Amendment. The concurring Justices, White, Blackmun, Stevens, and O’Connor, concluded that selectively banning bigoted fighting words would be constitutional, though it voted to strike down the ordinance because the concurring Justices didn’t think it was limited to fighting words. Probably the best way of viewing the split was five Justices being more open to protecting racist speech, and four Justices being more open to some quite modest restrictions on such speech.

5. Avis Rent a Car System, Inc. v. Aguilar (2000) declined to review a lower court case that upheld an injunction against racist epithets in the workplace. As with Smith v. Collin, this decision didn’t express an opinion on the merits. Still, Justice Thomas did dissent from the denial of review, and strongly suggested that the lower court decision was wrong.

6. In Virginia v. Black (2003), the Supreme Court considered three convictions under a Virginia statute banning cross-burning; it struck down one (which I label “Black A”) by an 8-1 vote, on the grounds that that cross-burning was just a statement of racist political ideas, and upheld two others (which I label “Black B”) by a 6-3 vote, on the grounds that the single cross-burning involved in those two cases was an individually targeted threat that therefore fell within the “true threats” exception. The exact details are complicated, but I think it’s fair to say that Justice Thomas was the sole dissenter (on the more speech-restrictive side) in Black A, and Justices Kennedy, Souter, and Ginsberg were the dissenters (on the more speech-protective side) in Black B.

I do not include in this list Forsyth County v. Nationalist Movement (1992), in which the speakers happened to be racist, but in which the law did not target racist speakers as such, but rather imposed extra fees on speakers that were likely to draw a hostile audience.

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’ »

FIRE’s Speech Code of the Month, from SUNY – New Paltz:

This policy applies to all members of the campus community, individuals doing business with the
campus, any person utilizing campus facilities. This will include SUNY New Paltz’s campus, any off-site
facilities, and work-related travel....

Examples of Prohibited Conduct ...

Distribution, display or discussion of any written or graphic material that ridicules, denigrates,
insults, belittles, or shows hostility or aversion toward an individual or group because of protected
status.

“Protected status” seems to refer to “sex, sexual orientation, predisposing genetic characteristics, race, color, national origin, age, religion, creed, marital status, military status, or disability, including pregnancy.” So better not distribute, display, or discuss any material that show hostility or aversion to Scientologists, extremist Muslims, conservative Christians, gays, members of the military, or anyone over thirty. Thanks to Paul Milligan for the pointer.

A generally very good discussion, I think, from a State Department online press conference on Sept. 27. One can debate whether or not some of the condemnation of certain kinds of speech might go a bit far (though it doesn’t go as far, I think, as the general condemnation of “denigration of religion” that I had earlier criticized). But that’s much less significant in this context, I think, than the detailed, repeated, and unembarrassed reaffirmation of free speech protection:

MR. BUFFINGTON: ... As our first question, Satya Festiani from The Republika Online, her question is: What is the U.S. response over the video Innocence of Muslims? Is there any limitation to what kind of freedom of expression is allowed?

MR. BAER: Thanks very much. I – the response from – to the film itself has been made clear both by Secretary Clinton and President Obama in his speech to the UN this week where he said – repeated the statements that we’ve made numerous times now, which is that the content of that film is not something that the U.S. Government had anything to do with or that we support in any way. We reject that, the content of that film, as we reject any kind of film or other speech that would seem to be encouraging people to take hateful attitudes.

That being said, there are protections in international law and in domestic U.S. law for freedom of expression, and those protections are in place and have been in place for a long time. And they have good reasons. And the reasons are that while we certainly deplore the content of certain speech, we protect people’s right to say pretty much all manner of speech. There are some limitations. They are very, very, very limited limitations. And so the response to the film has been both to make clear that we do not in any way support the content or have any connection with it, as well as to reaffirm our commitment to freedom of expression.

I should say also that it’s not just the U.S. Government that deplores the content of this video. Many, many Americans who have no connection to the U.S. Government have made clear that they too are offended by the video. Of course, there are millions of Muslim Americans who – in our country, but also people of other faiths have made clear that they deplore the content of the video. So the response in this country has been quite, quite strong in terms of deploring the content of that video.

MR. BUFFINGTON: As a follow-up to Republika Online, do you think it’s possible the Muslim ask the government to curb Islamophobia in the same way as countries restrict anti-Semitic speech?

MR. BAER: I’m sure that there will be, and have been, requests for that. But I think one of the things that we’ve seen – and it should be clear to everybody that in the United States we do not restrict anti-Semitic speech; we don’t restrict offensive speech pertaining to any religion. Sometimes people think that we do restrict certain speech in certain ways related to religion. We don’t, across the board.

There are some countries that do. And one of the things that we’ve seen, not only do we think that that’s inconsistent with freedom of expression, but we’ve also seen that it’s not effective. Obviously the reason that people usually give for why they might restrict offensive speech is that they think that will help create a more tolerant society. And there’s been a recent study that’s come out, actually in the last month, that confirms again the reality that that’s just not the case. The Pew Foundation did a study of social attitudes around the world, and they found that where restrictions on religious expression are strongest, so is the social hostility toward minority religious groups, et cetera.

And so one of the arguments that we would make, and we have – there are countries that do restrict offensive speech about religion, and one of the arguments we would make is that the goals, the good goals that people might have in mind, aren’t met by those restrictions. And there are many, many costs to them because what ends up happening up happening, almost uniformly, invariably across the board, is that any kinds of justification for the government to punish people for speech ends up getting used for intentions that are not consistent with the original justification for such restrictions.

Continue reading ‘Daniel Baer (U.S. State Department) on Freedom of Speech and Hostility to Religions’ »

Several people have pointed me to a July 26, 2012 video excerpt of Rep. Trent Franks questioning Thomas Perez (the Assistant Attorney General for the Civil Rights Division) about whether the Justice Department would commit to “never entertain or advance a proposal that criminalizes speech against any religion”; Perez, it was claimed, refused to commit to this. A Daily Caller piece from July 27, 2012 characterizes Perez’s testimony the same way. Here’s the video excerpt:

It was pretty hard for me to figure out Mr. Perez’s views from the excerpt, though, since Rep. Franks kept interrupting him; and in any event, I thought it would be good to look at a transcript of the entire hearing. And it turns out that the transcript tells a rather different story: Later in the hearing, Mr. Perez expressly agreed that so-called “hate speech” can’t generally be criminalized, though he noted that “threats of violence” are constitutionally unprotected. (Note that federal law already generally bans threats of force intended to obstruct the free exercise of religious beliefs, see 18 U.S.C. § 247.)

I thought I’d note this, and post the relevant parts of the transcript (full video here), since I suspect that many of our readers have seen the video excerpt but not the longer transcript. First, here’s some earlier material that explains Rep. Franks’ concern; Rep. Franks is quoting an Oct. 21, 2011 Daily Caller article:

Continue reading ‘Did a Justice Department Official “Refuse to Denounce Demands for Saudi-style Blasphemy Law”?’ »

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.

So says a Coalition press release. Some excerpts:

Tomorrow the NHMC will file letters with the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA), sharing this new poll data and renewing unanswered requests that NHMC made back in 2009 for the agencies to study the impacts of hate speech in media.

At a press conference in Washington, D.C., Alex Nogales, President and CEO of NHMC, presented the poll findings alongside Congressman Raul Grijalva (D-AZ) and fellow civil rights activists from the NAACP, the Gay and Lesbian Alliance Against Defamation (GLAAD) and the National Hispanic Leadership Agenda (NHLA)....

Neither the press release nor the underlying report defines “hate speech,” but it does talk about some things it disapproves of, including, for instance (emphasis added):

People exposed to negative entertainment or news narratives about Latinos and/or immigrants hold the most unfavorable and hostile views about both groups....

In discussing those in this country without documentation, the term commonly employed by some media outlets, “illegal aliens,” elicits much more negatives feelings than the term “undocumented immigrants.”

Non-Latinos report seeing Latinos in stereotypically negative or subordinate roles (gardeners, maids, dropouts, and criminals) in television and film.

Congressman Luis Gutierrez (D-IL) was unable to attend the press conference, but issued the following statement in support of NHMC’s work: “We get calls in my office from angry and outraged talk radio listeners several times a week filled with misconceptions and negative stereotypes. The reality is that when you strip away the anger, underneath there is a lot of consensus among Democrats, Republicans, and independents on the immigration issue and how to get things back on a legal footing. Solutions are within reach. Talk radio is an obstacle to reforming immigration but not an insurmountable one.”

Now if people want to study how media affects people’s perceptions of Hispanics, Southerners, Muslims, evangelical Christians, gays, conservatives, or whomever else, that’s just fine, and can indeed be quite interesting. The media, and the formation of public opinion, are eminently reasonable topics for research.

But when (1) not just an advocacy group but Congressmen as well (2) ask the federal government entity that has the power to give and withdraw licenses, including based on media content, (3) to “study” “hate speech,” (4) with no definition but with examples broad enough to cover a vast range of commentary (express and implied), that strikes me as especially dangerous. And it ties in to leading international law scholars’ views about how restrictions on “hate speech” could be justified using international law norms (see the posts about the views of Prof. Peter Spiro and Dean Harold Koh).

Related to my post about Prof. Peter Spiro’s views on how international law could be used to diminish the force of U.S. First Amendment protection, I thought I’d note again some thoughts that I noted in 2009 from Harold Koh, former dean of Yale Law School and now Legal Adviser at the State Department, in his 2003 Stanford Law Review article On American Exceptionalism. Dean Koh, one of the most prominent and influential legal internationalists in the U.S., identifies the tactics that fellow internationalists can use to help shift American constitutional law to more closely mirror “international law” norms, including when it comes to “hate speech.” Here are some excerpts (emphasis added):

[I]n a penetrating essay, Michael Ignatieff has catalogued various kinds of American exceptionalism, in the process separating out at least three different faces of American engagement with the world: first, what he calls America’s human-rights narcissism, particularly in its embrace of the First Amendment and its nonembrace of certain rights — such as economic, social, and cultural rights — that are widely accepted throughout the rest of the world....

While this trichotomy is intriguing, I find it both under- and overinclusive. It lumps together certain distinct forms of exceptionalism and misses others. I prefer to distinguish among four somewhat different faces of American exceptionalism, which I call, in order of ascending opprobrium: distinctive rights, different labels, the “flying buttress” mentality, and double standards....

By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries’ laws of hate speech, libel, commercial speech, and publication of national security information. But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.

[Footnote: Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation discussed infra Part III.C.]

Now Part III.C doesn’t talk explicitly about “hate speech” restrictions, but, as I note, Prof. Koh makes clear that such restrictions should indeed be governed by the Part III.C analysis. And here are some excerpts from that analysis:

C. Addressing Exceptionalism Through Transnational Legal Process

... [T]he key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors — namely, nation states, corporations, international organizations, and nongovernmental organizations — interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states. ...

Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global [criminal] justice system.... [T]ransnational legal process could be used to erode the force of the novel U.S. tactic of unsigning the Rome Treaty [an unsigning that expressed the U.S. refusal to participate in the International Criminal Court -EV]. Under international law, it is unclear what the precise legal force of “unsigning” a previously signed treaty should be.... In 1994, for example, the United States attempted to modify its acceptance of the compulsory jurisdiction of the International Court of Justice to avoid a suit by Nicaragua, but the court itself eventually rejected that attempt as legally ineffective and proceeded to judgment against the United States. [FN86]

Rather than taking America’s unsignature at face value, a transnational legal process approach would recognize that the unsigning actually marks the beginning, not the end, of the United States’s relationship with an ongoing International Criminal Court. Henceforth, every act of American cooperation with the court will constitute a de facto repudiation of the categorical, but theoretical, act of unsignature. Thus, in a well-chosen case, a state party to the court could request that the United States provide evidence to support an ICC prosecution–as was done, for example, when the United States made classified evidence available to the International Criminal Tribunal for the former Yugoslavia (ICTY) to support the indictment of Slobodan Milosevic. Alternatively, another State could seek to extradite to the ICC a suspect located on U.S. soil. If the United States were to cooperate — as it well might in a case that served U.S. interests — the incident could reduce American exceptionalism, undermine the force of the May 2002 unsigning, and help shift the United States toward a new, more pragmatic long-term policy of cooperating with the court on a case-by-case basis....

To address America’s judicial exceptionalism, we can apply methods of reducing judicial dissonance, as described in Gerry Neuman’s article for this Symposium. But more fundamentally, we must recognize that two distinct approaches have emerged within our own Supreme Court’s jurisprudence toward America’s role in the world. The first is a “nationalist jurisprudence,” exemplified by opinions of Justices Scalia and Thomas, which is characterized by commitments to territoriality, national politics, deference to executive power, and resistance to comity or international law as meaningful constraints on national prerogative. The second and more venerable strand of “transnationalist jurisprudence” began with John Jay and John Marshall, was carried forward by Justice Gray in the The Paquete Habana case, and was articulated in the Warren and Burger Courts by Justices Douglas and White and in the numerous opinions of Justice Blackmun. The transnationalist banner is now being carried forward by Justices Stephen Breyer and Ruth Bader Ginsburg. Unlike the nationalist jurisprudence, which for guidance looks backward to territory and sideways toward executive power, transnational jurisprudence looks forward toward political and economic interdependence and outward toward rules of international law and comity as necessary means to coordinate international system interests and to promote the development of a well-functioning international judicial system.

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.

Fortunately, it appears that UC President Mark Yudof — a noted First Amendment scholar — is not going along with this. Here’s the relevant passage, which the Foundation for Individual Rights in Education rightly condemns:

2) UC should adopt a hate speech-free campus policy.

While many campuses have adopted hate-free campaigns or issued commitments affirming the free and open exchange of ideas while maintaining a civil and supportive community, UC does not have a hate-free policy that allows the campus to prevent well-known bigoted and hate organizations from speaking on campus (aside for time, place, and manner provisions), such as the KKK. UC should push its current harassment and nondiscrimination provisions further, clearly define hate speech in its guidelines, and seek opportunities to prohibit hate speech on campus. The President should request that General Counsel examine opportunities to develop policies that give campus administrators authority to prohibit such activities on campus. The Team recognizes that changes to UC hate speech policies may result in legal challenge, but offer that UC accept the challenge.

Now I’m pretty sure that attempts by the KKK to organize speeches on UC campuses are very rare. But of course if the KKK did show up, I’m pretty sure that the effect would be more of an outpouring of support for Jewish and non-white students, through university officials’ and student groups’ uniformly condemning the speakers, counterdemonstrating, and the like. Indeed, a university campus is a place where counterspeech is especially likely to be effective in combating such overwhelmingly condemned evil speech, both intellectually (in the sense of providing a persuasive response, if any is likely to be required) and emotionally (in the sense of making the targets of the speech feel welcome and valued on campus).

But of course this isn’t about the KKK: It’s about what the authors view as speech that is morally tantamount to the KKK’s, but that nonetheless enjoy enough support that it’s more likely to be heard on campus and less likely to be sufficiently condemned for the authors’ tastes. Indeed, one of the coauthors of the report apparently made this clear in an interview, according to the San Francisco Chronicle:

The report points to anti-Israel protests ... where activists erect “apartheid walls” to simulate the West Bank barrier, portray Palestinians being killed by Israeli soldiers, distribute flyers accusing Israel of genocide or combine a swastika with the Star of David.

Such protests hurt students because they are “devoid of context, with the unmistakable message that Israelis/Jews are carrying out a unilateral campaign of violence directed against innocent Palestinians,” the report says.

To address the problem, Barton and Huffman recommend banning hate speech, perhaps banning campus sponsorship of “unbalanced and/or biased events,” and requiring everyone to take “cultural competency training.”

“The team recognizes that changes to UC hate speech policies may result in a legal challenge, but offers that UC accept the challenge,” the report says.

In an interview, Barton likened the situation to “allowing the Klan to walk around campuses and say things about black people.”

It’s not really about the Klan — it’s about militant anti-Israel speech, with possible (though disputed) anti-Semitic overtones. And this is speech which does happen, which doesn’t generally lead to wide condemnation and counterprotests. The call for suppression by university, it seems to me, stems precisely from the fact that this speech isn’t suppressed by social pressure (since it’s not as widely condemned on campuses as KKK speech). And it’s a reminder that however narrow and extreme the poster children for calls for suppression might be, the actual suppression is targeted at a considerably broader potential category.

And that’s just the target. The actual impact of the proposal, of course, wouldn’t be limited to what groups worried about anti-Israel speech and anti-Semitic speech see as sufficiently morally similar to the Klan; it would include whatever other groups — and the administrators they persuade or pressure — see as sufficiently morally similar. The whole range of what some people (especially those on the Left, since they are the ones most likely to get the ear of UC administrators) call “hate speech” would become vulnerable to suppression. Harsh condemnation of Islam, condemnation of pro-Palestinian violence, arguments against homosexuality or same-sex marriage, calls for crackdowns on illegal immigration, condemnation of abortion, and more: All these could potentially be covered by a “prohibit[ion]” of “hate speech on campus.”

Naturally, just what will or will not be covered depends on how the famously vague term “hate speech” is defined — or not defined. Unsurprisingly, the proposed report relies on this amorphous term without offering a definition. But all the definitions I’ve seen before are either so narrow that they simply track existing prohibitions (such as on threats), so broad that they could easily cover much of the speech I mention, or, most commonly, so vague that they leave the decision of which viewpoints will be suppressed up to the ideological predispositions of administrators (or the political pressure put on administrators).

So I’m sorry that “fact-finding team” members — the National Education Chair of the Anti-Defamation League (Richard D. Barton) and the head of the California NAACP (Alice Huffman) — suggested such an improper and unconstitutional speech restriction, and I’m glad that President Yudof appears to be resisting it.

Local10.com (South Florida) reported several days ago:

The Miami-Dade County school district is looking to evict a pastor who rents space in a public school to preach. ...

[Pastor Jack] Hakimian preaches and teaches inside North Miami Senior High School every Sunday.In a recent sermon, he compared homosexuality to drug abuse and witchcraft.

Other sermons are titled: “Gays and Sex Addicts Can Change and Should Change” and “Pedophiles Use the Same Argument as Homosexuals and the Weed Smoking Community.”

In a statement to Local 10, Superintendent Alberto Carvalho said Hakimian’s teachings “appear to be contrary to school board policy, as well as the basic principles of humanity, and I have asked for immediate legal review to seek the termination of the contract that is involved. ... I am making this decision not on the basis of policy or politics but as a rejection of prejudice and intolerance.” ...

Now a school can certainly refuse to rent space altogether, or rent it only to a few favored groups. But School Board policy provides that, “District grounds and facilities should be made available for community purposes, provided the use does not infringe on the original and necessary purpose of the property or interfere with the educational program”; and indeed, according to Local10.com, “90 different religious organizations rent space in a Miami-Dade school buildings.” Many nonreligious organizations seem to do the same: “Religious rent generates $630,000 a year. Add all organizations, and $3 million a year is generated in rent.”

And this means that the government may not discriminate based on viewpoint in its program, see, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist. (1993). That’s so even if the school district concludes that the pastor’s teachings somehow “interfere with the educational program.” When the school district opens up its property to speech other than its own, or that of a few groups that it endorses, it is barred from discriminating based on viewpoint.

The district seems to justify its position by saying that, “A district spokesman said it appears Hakimian’s words contradict a nondiscrimination policy, which includes sexual orientation.” And the school can probably bar discrimination on school property, for reasons given in Justice Stevens’ concurrence in Christian Legal Society v. Martinez (2010) (and also here), for instance if a speaker wanted to exclude gay audience members, or black or white or male or female audience members. But the majority in the Christian Legal Society case defended its decision — which I think ends up pointing in the same direction as the Stevens concurrence — precisely on the ground that,

Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers, they may express any viewpoint they wish — including a discriminatory one. Today’s decision thus continues this Court’s tradition of “protect[ing] the freedom to express ‘the thought that we hate.’”

Speech thus doesn’t lose its constitutional protection simply because the government labels it “discrimination” on the grounds that the speech is hostile to particular sexual orientations, religions, races, or what have you. Viewpoint discrimination is impermissible, even when it comes to access to government property (once that’s been opened to groups beyond just the government and a few government-selected speakers) — and that fully includes anti-homosexuality (or pro-homosexuality) viewpoints.

The policy banned exterior bus ads that supposedly “demean an individual or group on account of ‘race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation,’” and the New York Metropolitan Transportation Authority cited the policy in refusing to run this ad:

“Elaborating on the basis for rejecting the AFDI Ad, [the MTA official] stated that the use of ‘savage’ and ‘Jihad’ to identify those who fail to support Israel ‘demeans a group (or groups) of individuals on account of their religion, national origin, or ancestry, including Palestinians or other Arabs or Muslims who do not share AFDI’s views on Israel.’”

Today’s American Freedom Defense Initiative v. Metropolitan Transportation Authority (S.D.N.Y. July 20, 2012) holds that the policy violates the First Amendment. Following New York Magazine v. Metropolitan Transportation Authority (2d Cir. 1998), the court concludes that the advertising space is a so-called “designated public forum”:

[In New York Magazine,] the Second Circuit held that the advertising space on the exteriors of public buses was a designated public forum. In so holding, the Court emphasized that MTA “accepts both political and commercial advertising” in that space, with the knowledge that “clashes of opinion and controversy” in political advertising could have adverse commercial effect. Opening up its ad space up to potentially controversial political speech, a practice “inconsistent with sound commercial practice,” was the action of a regulator, not a commercial proprietor. The Second Circuit found further support for this conclusion in the specific advertising standard at issue in the case, which prohibited ads which “violate[] New York Civil Rights Law § 50.” Because MTA’s articulated interest in applying that standard was to assure compliance with law, MTA was properly held to be acting in a regulatory, not a commercial, role.

The court then concludes that content-based speech restrictions in a designated public forum are unconstitutional unless they pass “strict scrutiny” — i.e., unless they are narrowly tailored to a compelling government interest — and this restriction can’t satisfy that very demanding test. And this restriction, the court says, is content-based, because it leaves people free to demean other people based on other attributes, such as political affiliation, place of residence, occupation, and so forth, but not based on the prohibited attributes, such as religion and race. A broader restriction on “demeaning” anyone, the court says, might be permissible:

Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary on the exteriors of buses to a standard of civility. See, e.g., Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 90 (1st Cir. 2004) (upholding transit authority’s regulation that prohibited, without further limitation, “advertisements that ‘demean[] or disparage[] individual or group of individuals’”). [Footnote: The First Circuit so ruled in Ridley after holding, based on a close examination of the history, usage, and close regulation of the advertising space in question, that the government had not created a designated public forum.]

Or maybe not: Later the court notes that it is not deciding whether “even an across-the-board ban on demeaning speech is itself content-based and subject to strict scrutiny, because such a ban draws a line between demeaning and non-demeaning content” and whether “a ban on demeaning speech is impermissibly viewpoint-based, because it uniquely prohibits a form of harsh condemnation.” But in any event, a ban on demeaning individuals or groups based on a particular set of attributes is content-based, thus triggers strict scrutiny, and is unconstitutional in a designated public forum such as this one.

A few thoughts:

1. 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 indeed held that viewpoint-based restrictions, even on government property that isn’t a “traditional public forum,” are unconstitutional; and this also 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). Under this doctrine, I think a ban on “demean[ing]” speech about religions, races, and the like is unconstitutionally viewpoint-based, given that positive speech about various groups — or about tolerance, equality, and so on — is allowed.

2. I’m not sure that advertising space should be consider a “designated public forum,” in which strict scrutiny applies to all content-based restrictions, as opposed to a “limited public forum,” in which the government can impose content-based but viewpoint-neutral restrictions. This having been said, the district court points out that Second Circuit precedent (which is binding on federal district courts in New York) treats this very program as a designated public forum.

3. If the space is indeed a designated public forum, then I think even a ban on all disparaging speech would be content-based — when we say that speech is disparaging, we are making a statement about the content of its message, and its communicative impact. What’s more, I think such a ban would even be viewpoint-based, since it targets negative viewpoints about people or groups and not positive viewpoints. So while I think a ban on particular vulgarities would be content-based but viewpoint-neutral, so the government could ban them in a limited public forum, a ban on disparaging speech would be viewpoint-based. (That’s true even of a courthouse, where Cohen wore his famous “Fuck the Draft” jacket; the Court in Cohen v. California made clear that it wasn’t passing on the constitutionality of bans on vulgarities in courthouses, since the law in Cohen was read by the state as banning vulgarity in public generally.) I therefore think that, both under the district court’s view that the ad program was a designated public forum, and under the view that the ad program was a limited public forum, even the broad ban on demeaning speech about anyone would be unconstitutional.

So I think the court reached the right result given the Supreme Court’s caselaw, and did so for what is, given Second Circuit caselaw, the right reason.

From a U.N. document describing the response of the Iceland delegation to the U.N. Human Rights Committee (paragraph break added):

Iceland had two gender-equality Action Plans, a first that provided for structures within Government and local authorities, and a second on domestic and sexual violence. Research had been conducted within the framework of those plans, which would be used in the elaboration of the third Action Plan.

The negative gender stereotypes that existed in Icelandic society were the typical ones, a delegate said, for example a belief that a builder could only be a man and a nurse could only be a woman. Research had shown that such stereotypes were grounds for gender-based violence and discrimination. Iceland shared the concern about ineffective anti-hate speech legislation and would do its utmost to address the issue.

AB 2100, which passed an Assembly subcommittee last month by a 5-3 party-line vote, provides,

To ensure that individuals and entities licensed under this act observe common standards of decency, the commission shall, in consultation with the Association of Boxing Commissioners, establish a professional code of ethical conduct for mixed martial arts promoters and fighters. Notwithstanding any other provision of this code, upon receiving a complaint, the commission shall enforce the code of ethical conduct and may suspend, revoke, or refuse to issue or renew the license of any mixed martial arts promoter or fighter that it finds has violated this code of conduct. Violations of this code shall include, but not be limited to, the following:

(a) Engaging in actions or activities such as acts resulting in felony convictions or convictions for crimes involving moral turpitude, sexual assault, ethnic or religious slurs, hate speech, or obscene language, failing to respond to a subpoena, or incurring sanctions imposed by a judge or court of law.

I don’t think mixed martial arts fighters should be denied the right to compete — and denied it by law, not just by a private organization’s decision — simply because they have a criminal record. That’s especially so when the criminal record can involve relatively less significant offenses, such as contempt of court, or “crimes involving” “obscene language.”

But it seems to me especially wrong, and unconstitutional, to strip people of their livelihood based on viewpoint-based criteria such as whether their crimes involved “ethnic or religious slurs” or “hate speech.” To be sure, such conduct has to be independently a crime (e.g., disturbing the peace through trying to provoke a fight, or making loud noise, or what have you); ethnic slurs, religious slurs, and “hate speech” — whatever that vague term might mean — aren’t themselves crimes. But as R.A.V. v. City of St. Paul (1992) held, even if the government may outlaw certain kinds of speech (such as “fighting words”), it may not outlaw in ways that are viewpoint-based (or otherwise impermissibly content-based). Just as R.A.V. barred the imposition of greater penalties on bigoted fighting words than other fighting words, so it bars the loss of a license for crimes that involve “ethnic or religious slurs” or “hate speech” but not for comparable crimes that don’t involve such speech.

I recognize that hate crimes laws that increase the penalty for crimes based on the defendant’s discriminatory selection of a victim are constitutional, see the unanimous Wisconsin v. Mitchell (1993), and I think that decision is correct: The law has long allowed punishments to turn partly on the defendant’s motivation, and the selection of a victim based on particular criteria may indeed be a permissible basis for such distinctions (just as employment law may permissibly distinguish firing someone based on that person’s race or sex from firing the person based on something else). But R.A.V. makes clear that the law may not make the viewpoint of a person’s speech — as opposed to his victim selection decision — a basis for enhanced punishment.

And the same, I think, would apply to disqualification from the occupation of mixed martial arts fighting. Assemblyman Luis Alejo, the sponsor of the bill, and Assembly members Nora Campos, Betsy Butler, Mike Gatto, Tony Mendoza, and Bill Monning ought to know better, or at least seek out better counsel.

Karen Lugo (National Review Online) has the most thorough English-language account that I’ve seen:

While deciding to acquit Lars Hedegaard [on April 20], president of the Danish Free Press Society, of intending to speak hatefully for public dissemination, the [Danish Supreme Court] emphatically affirmed a statute according to which anyone who “publicly or with the intent of public dissemination issues a pronouncement or other communication by which a group of persons are threatened, insulted or denigrated due to their race, skin colour, national or ethnic origin, religion or sexual orientation is liable to a fine or incarceration for up to two years.”

The prosecution of Hedegaard resulted from remarks that he made during an interview and contends were electronically distributed without his permission. Although Hedegaard explained that he did not intend to accuse the majority of Muslim men of abusive behavior, Denmark’s Office of Public Prosecutions deemed his reflections on the incidence of family rape and the commonness of misogyny in Muslim-dominated areas to be criminally insulting.

The trial-court judge did not find that the prosecution met its burden to demonstrate that Hedegaard meant his comments for public distribution. But the Office of Public Prosecutions appealed to the Copenhagen Eastern Superior Court, in which Hedegaard was convicted. This reversal was based upon the elastic legal standard that Hedegaard “ought to have known” of the potential for dissemination of his remarks....

[T]he seven-member supreme court declined to apply the lower court’s “ought to know” standard, but affirmed the statute under which Hedegaard had been prosecuted, with its many ambiguities and invitations to abuse. As Hedegaard has said, the result still logically means that one can be criminally liable for speech deemed racist or offensive if one does not “demand written guarantees that nothing be passed on without express approval.” ... [Among other things,] truth is not a defense. In fact, sociological data that would substantiate his observations were not admissible in court. As Hedegaard complained, “the defendant is not allowed to present evidence or call witnesses who might confirm his contention that the Islamic treatment of women is incompatible with the norms of a civilised society.”

[Also], the highly general categories of legal offense do not merely seek to protect races of people — hard enough to define — but now cover beliefs, dogmas, and doctrines. Destructive ideologies that cry out for inspection are thus invited to propagate behind a veil....

I’d be glad to quote more from a straight news account, rather than an opinion piece, but I couldn’t find any. The opinion is here in Danish; if any Danish speakers can translate the key material (from Google Translate, it appears that the Court’s legal analysis is all on just one page, page 3), I’d love to see it. Thanks to Walter Olson (Secular Right) for the pointer.