The Volokh Conspiracy

From Hurn v. Greenaway (Alaska Feb. 8, 2013):

Simone Greenway and her friend Carrie Randall–Evans were dancing together in a suggestive manner and teasing Jeffrey Evans, Carrie’s husband, when Jeffrey left the room, returned with a pistol, and shot everyone inside, killing Carrie. He then shot and killed himself. David Hurn, the father of Carrie’s two minor children, sued, claiming that Greenway’s participation in the dance was negligent either because it breached her duty as homeowner to control her guests or because it created a foreseeable and unreasonable risk of violence.

The court held for the defendant, “[b]ecause property owners generally have no duty to control the conduct of third parties in their homes, and because murder was not the foreseeable result of suggestive dancing,” despite the alleged signs of Jeffrey’s dangerousness:

Greenway knew that Jeffrey had threatened Carrie with physical harm in the past; Carrie was afraid that Jeffrey would kill her; Jeffrey was a jealous man; on the night of the murder Jeffrey sometimes wore a “stone cold expression” that betrayed no emotion; and prior to Greenway’s dance, he had issued a veiled threat: “What would you girls do if someone came in that door right now, after you?”

But towards the end of the opinion, the court also makes a broader point that goes beyond just whether foreseeability is present on the facts of the case (paragraph breaks added):

Hurn asks us to reduce domestic violence in this state by imposing a duty to “refrain from teasing or bullying someone known to be potentially violent.” But we refuse to give victims the duty to prevent their own abuse and then hold them liable when they fail.

The record suggests that Jeffrey was an abusive husband. And if Greenway is liable for taunting an abusive husband, it follows that victims themselves may be liable for provoking their partners if the result is harm to a third party.

Some courts have already been asked to hold a recipient of domestic abuse liable under § 302B for the crimes of her partner. The Iowa Supreme Court held that a woman was not liable for the actions of her jealous and abusive boyfriend after he assaulted another man she brought home. [Footnote: See Fiala v. Rains, 519 N.W.2d 386 (Iowa 1994); cf. Wilkins v. Siplin, 13 Cal.Rptr.2d 634 (Cal.App.1992) (holding that a wife could be liable for inviting a co-worker to a remote cabin where he was attacked by her husband) (depublished by order of the California Supreme Court).] These requests are particularly troubling where, as here, the “provocation” is an act of resistance. [Footnote: The sparring, dancing, and teasing at issue were a direct response to Jeffrey's not-so-veiled threat to Carrie and Greenway's physical safety: “[W]hat would you girls do if somebody came in that door right now, after you?” In response, Carrie and Greenway laughed, gave each other a high five, said “[W]e’d kick his ass,” and started sparring to demonstrate how they would repel the intruder. While they were sparring and dancing and laughing at Jeffrey, Greenway was [implicitly] expressing to Carrie: “[T]his is my domain, you don’t have to be afraid here.”]

We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because those actions foreseeably result in violence.

That strikes me as quite correct. For an approach that is in many ways the opposite of this one (and that I think is incorrect), see Touchette v. Ganal (Haw. 1996).

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.

Somali pirates, and the broader contexts of state failure and the maritime economy, are the subject of the new documentary film “Stolen Seas.” It has just had its first U.S. release at Cinema Village in New York. The filmmaker quite adventurously spent significant time with Somali pirates on land and at sea, to good effect. He also less adventurously interviewed me. Hopefully it will get wider release and I’ll be able to see it for myself.

Mercedes-Benz’s latest marketing ploy is to associate itself with Che Guevera. Over at the Huffington Post, Michael Gonzalez (Heritage Foundation) supplies the details.

It’s not surprising that a corporation which is currently pro-Che was pro-Hitler, far more so than many other German businesses during the Third Reich. As recounted in Cecil Adams’ “The Straight Dope”:

Daimler-Benz . . . avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. According to historian Bernard Bellon (Mercedes in Peace and War, 1990), at least eight Jews were murdered by DB managers or SS men at a plant in occupied Poland.

UPDATE: Regarding Eugene’s post, immediately above. My own view would be that a corporation is a collection of individuals (and, I agree with him, therefore entitled to free speech and other constitutional rights); in the same sense, a human body is a collection of cells. Over time, all of the individuals in a corporation may change; likewise, the collection of cells that constitute “David Kopel” is today very different from the collection that constituted “David Kopel” 45 years ago. Yet the corporate body, like the human body, has a continuing existence as the same entity. (That’s one of the benefits of incorporation.) Corporations sometimes have cultures or other enduring traits that distinguish them even while their individual members may be replaced. It would be accurate to say that Yale Law School is a corporation that places far higher value of scholarly prestige than on teaching ability, and this was true not only today, but also 40 years ago, even though the Yale faculty is now entirely different. (Yes, to be precise, Yale Law School is just a unit within the larger corporation of Yale University.) None of the original personnel at National Review magazine are still there, but one can find many similarities between the corporate culture and mission of NR in 1955 and 2011. That the various corporations of the Ivy League schools discriminated against Jews in the 1920s is, in my view, of some relevance in understanding their current discrimination against Asians. That Mercedes-Benz was, compared to other German corporations, unusually supportive to Hitler then, and is similarly unusual (compared to other German corporations) in its attitude towards Che today, suggests that the corporation may lack an internal self-regulator which recognizes the wrongfulness of extolling totalitarian thugs.

I have nothing useful to add about the awful events at Penn State, both the child molestation and the failure of various people to properly intervene to stop it. But I do want to second Jonah Goldberg’s disgust at the rioting students, rioting that just adds an extra level of nastiness and moral failure to an already horrible chain of events.

Agence France Press reported:

The offices of a French satirical newspaper that published a special Arab Spring edition with the Prophet Mohammed on the cover as “guest editor” were destroyed in a suspected firebomb attack Wednesday.

The attack came after Charlie Hebdo renamed the weekly newspaper Charia (Sharia) Hebdo for the occasion and featured a front-page cartoon of the prophet saying: “100 lashes if you don’t die of laughter!”

The newspaper’s website also appeared to have been hacked, with its regular home page replaced with a photo of the Grand Mosque in Mecca and a message reading: “No god but Allah”. The web site was later unavailable.

From The Guardian (UK):

French politicians defended the magazine. The prime minister, François Fillon, said: “Freedom of expression is an inalienable value of democracy and any incursion against press freedom must be condemned with the utmost force. No cause justified violent action.”

The interior minister, Claude Guéant, said: “You like or you don’t like Charlie Hebdo, but it’s a newspaper. Press freedom is sacrosanct for the French.” He added that all French people should feel solidarity towards the magazine.

François Hollande, the Socialist presidential candidate, told Le Monde newspaper the incident demonstrated that the struggle for press freedom and “respect of opinions” was a permanent battle, adding that “fundamentalism must be eradicated in all its forms”.

Here’s the cover, so you can see it for yourself:

The Christian Science Monitor has an obituary of M.F. Husain, said to have been one of India’s leading painters. The story goes into some detail about Husain’s having gotten physical threats and been sued based on his work:

The Hindu Janajagruti Samiti, a group whose goals include stopping the “denigration of Hindu righteousness,” protested his nude depictions of various Hindu deities. They also objected to one painting showing the borders of India formed by a nude woman’s outline.

Husain, a Muslim, faced a flood of lawsuits for “promoting enmity between groups.” Courts dismissed the initial cases, but Hindu activists have since filed some 900 cases against Husain around the country, says Geeta Seshu, head of the Free Speech Hub in Mumbai.

Sometimes the harassment turned violent. Activists from the Bajrang Dal, a Hindu youth organization, attacked Husain’s home in 1998 and have vandalized his artwork. Facing death threats, the painter moved to Dubai in 2006 and took citizenship in Qatar last year....

A religiously diverse country, India occasionally witnesses outbreaks of communal rioting. To keep the peace, the Indian government has at times prioritized religious sentiment over freedom of expression, banning Salman Rushdie’s “The Satanic Verses” after Muslim protests, for example....

The Des Moines Register reports:

An anti-terrorism drill based on a fictional scenario involving white supremacists angry over an influx of minorities and illegal immigrants was canceled Friday after officials of the school that was hosting the training exercise said they received threatening phone calls and emails....

“During the last 24 hours, the Treynor school system has received threats to their employees and buildings due to the planned ‘active shooter’ exercise,” county officials said in a statement.

“After consultation with the Treynor school district and the Pottawattamie County Sheriff’s Office, we have jointly decided to cancel the exercise due to these threats which we must consider viable. The Pottawattamie County Sheriff’s Department is now actively investigating the threats.” ...

As I’ve argued before, behavior that gets rewarded gets repeated — both by thugs that have similar political views, and by thugs that have other views. And while giving the thugs what they want, by cancelling drills, ad campaigns, speeches, and the like may seem like the responsible and prudent thing to do, in the long run (and not even in such a long run) it tends to breed more thuggery.

Thanks to Michael Lorton for the pointer.

Some of the comments to the Thugs Win Again post point out that there might not have been any specific threats that led to the Mansfield officials’ decision to kick out the an anti-radical-Islam / possibly anti-Islam and anti-Muslim speech. (The speech was on government property, but in a limited public forum that had generally been deliberately opened by the government to a wide range of political speech.) I suggested as much in my original post, in noting that the fear of violence may have stemmed either “from specific threats related to this talk, or from threats made about other events in the past.”

Yet if anything, this possibility makes matters even more troubling. Here’s the problem: Thuggery, which is to say violence or threats of violence, can be fairly expensive for the thugs. They might get arrested, imprisoned, perhaps even killed. If an event is cancelled because someone shows up shouting threats, that’s a heckler’s veto, and it’s bad for free speech (and often unconstitutional). But at least the person making the threats can be prosecuted, and maybe future thugs would be a bit deterred, or at least less encouraged. Behavior that gets rewarded gets repeated, but behavior that gets rewarded (the thug gets what he wants in getting the event stopped) but heavily punished (the thug goes to jail) is much less likely to get repeated.

But what if all it takes to restrict speech is some anonymous e-mails that don’t lead to a prosecution, and aren’t even referred to the police? That was what happened in the Seattle Thugs Win Again incident (that one, as it happens, involving thugs disrupting an anti-Israel advertising campaign). As I said then, “The message is clear: If you want to stop speech that you dislike, just send a few threatening messages and you’ll win. You don’t actually need to act violently, and risk punishment for that. You could send the threats anonymously, in a way that makes it quite unlikely that you’ll be punished. In fact, it might well be that — as in this case — the agency will not even try to get you punished. (‘[N]one of the threatening communications were referred to law enforcement.’) The very fact that the speech suppressors here weren’t that awful just makes the speech suppression itself even more dangerous.”

The most cost-effective thuggery of all, though, is when your thuggery keeps on giving: When some violence or threats of violence lead government officials (and perhaps university administrators, bookstores, and the like) to suppress speech even without any specific threat, just because they know that this is the sort of speech that could lead to violence (after all, it did somewhere else). Once the original investment of risk has been made, and the climate of menace has been created, no-one even has to e-mail in a threat. Now that’s a high return on the initial investment — a high reward, which leads to a high likelihood of repetition. (Of course, repetition might not be quite as necessary for these particular thugs, but there’ll still be some need to keep the climate menacing, plus of course one can make more threats about more kinds of things, and of course inspire still others in other political movements who will see that a little bit of violence can go a long way.)

Now of course I sympathize with the officials who have a duty to protect the public. I understand why they are so willing to try to prevent violence — even a small risk of violence — that they suppress the speech that the violent people want suppressed. My point is simply that this is a strategy that provides some short-term gain but creates a great deal of long-term damage, as thuggery becomes more profitable and therefore more common.

The Mansfield North Central Ohio Tea Party Association was planning to have a meeting featuring an anti-Islam (and, by some accounts, anti-Muslim) speaker. As usual, the meeting would be at the Mansfield High School in Mansfield, Ohio: The high school opens its meeting rooms to “any recognized political party or organization for the purpose of conducting discussions of public questions and issues,” and the Tea Party Association was taking advantage of this limited public forum.

But today’s event was kicked out of the high school, and had to be moved to another venue. The Mansfield News Journal reports that this move happened because of the school district’s “safety concerns.” “Mansfield City Schools Superintendent Dan Freund ... said that, after consulting with Mansfield City Police, the school decided it could not guarantee public safety at a Mansfield North Central Ohio Tea Party Association event scheduled for 7 p.m.” And Freund made clear that the reason for the cancellation was “safety concerns and not ... the presumed content of the scheduled speaker’s message.”

Fortunately, it looks like the Tea Party Association managed to line up a new meeting place, even at this short notice; and it may be that the speech won’t be much disrupted, though this sort of change of location often causes some loss of audience. But the broader point is much more troubling: Yet again, a talk that’s critical of radical Islam — and perhaps of Islam generally — has been kicked out of a location because of a fear of violence (whether stemming from specific threats related to this talk, or from threats made about other events in the past). Next time, the exclusion might interfere considerably more with the speech, especially if other government and private organizations follow suit.

Plus a powerful symbolic message is sent to those who are happy whenever such speech is interfered with: Threats of violence get results. Behavior that gets rewarded gets repeated.

The Cleveland chapter of the Council on American-Islamic Relations had also asked that the speech be canceled, and the NAACP asked “for a ‘rigorous review’ of the school’s facilities use guidelines and policies before an event scheduled for Mansfield Senior High School community room at 7 p.m. today.” But, short of closing the forum altogether, the school district can’t just exclude speakers on the grounds that they express anti-radical-Islam, anti-Islam, or anti-Muslim viewpoints, even when it comes to speech on government property: In a limited public forum such as this one, any limits on speech must be viewpoint-neutral. (Even exclusion based on fear of violent reaction might well be unconstitutional, even in a limited public forum, see Sonnier v. Crain (5th Cir. 2010); but CAIR and NAACP, it seems to me, spoke out before the cancellation of fear-of-violence grounds.) [UPDATE: I had thought this clear from the original post, but just to make it extra clear: CAIR and NAACP aren't the thugs here, though I think that to the extent they are asking for a viewpoint-based exclusion of the group, that is inconsistent with the First Amendment limited public forum caselaw. The thugs are the people whose past violence and threats of violence -- whether any specific threats were made in this case, or whether the government officials were simply extrapolating from past cases -- leads to restriction on speech that they oppose, because government officials and others come to fear a violent response.]

Note that the Mansfield policy starts out by saying that “The Board of Education believes that the grounds and facilities of this District should be made available for community purposes, provided that such use does not infringe on the original and necessary purpose of the property or interfere with the educational program of the schools and is harmonious with the purposes of this District.” But this doesn’t appear to be a limitation on the openness of the facilities to political groups; the statement of “belie[f]” is followed by an express command that “Facilities shall ... be made available to ... any recognized political party or organization for the purpose of conducting public discussions of public questions and issues.” And the board of education doesn’t seem to see the policy as authorizing the exclusion of viewpoints merely because the board disagrees with them. The board stressed that the exclusion was based not on the content of the speech as such, but because of “safety concerns” (albeit ones that flow from the content). Note also that the policy forbids “rais[ing] funds for political purposes,” and the event flyer apparently said that people were encouraged to donate; but that was not the basis for the board of education’s decision (and presumably if the board had insisted that no fundraising take place, the Tea Party Association might well have agreed).