pageok
pageok
pageok
Censorship Envy, Speech That's Offensive to Muslims, and European Law:

One recurring argument that I've seen from Muslims who want the cartoons legally suppressed is that European laws prohibit other kinds of speech offensive to other groups — for instance, Holocaust denial, which is often restricted chiefly because it's seen as implicitly or explicitly anti-Semitic — and that Muslims should get the same treatment. In practice, those laws don't get used that often, and European speech is actually more free than the laws would suggest. Nonetheless, the laws' presence does make possible the argument I describe; and I suspect it does make many Muslims feel even more aggrieved than they would be by the cartoons themselves, since they are also now aggrieved by what they see as discriminatorily enforced laws.

Consider, just as one example among many, Norwegian Penal Code secs. 135 & 135a (noted here; thanks to Rebecca Davidson for pointing to that article, and to Jill Fukunaga of the UCLA Law Library for finding the English text of the code sections):

§ 135. Any person who endangers the general peace by publicly insulting or provoking hatred of the Constitution or any public authority or by publicly stirring up one part of the population against another, or who is accessory thereto, shall be liable to fines or to detention or imprisonment for a term not exceeding one year.

§ 135 a. Any person shall be liable to fines or imprisonment for a term not exceeding two years who by any utterance or other communication made publicly or otherwise disseminated among the public threatens, insults, or subjects to hatred, persecution or contempt any person or group of persons because of their creed, race, colour or national or ethnic origin. The same applies to any such offensive conduct towards a person or a group because of their homosexual bent, life-style, or inclination.

The same penalty shall apply to any person who incites or is otherwise accessory to any act mentioned in the first paragraph.

These belong to the family of restrictions on "hate speech" and "incitement to hostility" that Europeans (and some Americans) sometimes praise as a model "reasonable" alternative to America's speech protections. But look how broad they are: If you "endanger[] the general peace" by "publicly stirring up one part of the population against another," you can go to prison. If you disseminate a communication that "insult[s]" "any group of persons because of their creed," you can go to prison.

Of course publication of the cartoons would be covered. My providing a link to the cartoons (which I've done in many of my previous posts, since providing such a link is in my view necessary to helping people understand the controversy) would be a crime under Norwegian law: I would be an accessory to a communication that insults some Muslims because of their creed. And of course many Muslims would feel entitled to have this law enforced to protect their sensibilities.

Many Muslims are surely offended enough by the cartoons on their own; but at least in America we can tell them to join the club — American Christians have no legal protection from anti-Christian speech, American Jews have none from anti-Semitic speech, blacks have none from racist speech, Americans generally have none from anti-American speech. What can Norwegians tell them, other than (1) "Sorry, the laws don't protect you," (2) "OK, we'll enforce the laws to suppress this speech that insults you," or (3) "These are bad laws, we're glad that they've rarely been used, we're sorry they were ever enacted, and we are going to repeal them right away" (my preferred suggestion, though not one likely to be implemented, and one that would still be understandably offensive to many Muslims, since the laws' repeal would have been triggered by speech that's offensive to Muslims)?

Bruce Wilder (www):
"Holocaust denial, which is often restricted chiefly because it's seen as implicitly or explicitly anti-Semitic"

Is that why H-denial is restricted? Really?

I thought it might be because it is a lie, a lie linked to groups, which want to promote anti-social violence or subvert democratic government.

If it is restricted, because it is a lie -- a lie with broad political implications -- that has different legal policy implications from the case, in which it is restricted because it constitutes an offense against one ethnic group.

A free press and free speech can survive quite nicely a restriction placed on the expression of quite specific untruths. Restrictions on "offending" some one or some group, have quite different implications for freedom.
2.16.2006 3:03pm
JB:
The published cartoons do seem to fall under the laws you cite, but I wonder if the 3 really offensive, unpublished ones do. If they don't, then I don't think this case holds up, as the original 12 don't threaten, insult, or subject to hatred, persecution or contempt the Muslim community, and don't publicly insult or provoke hatred of the Constitution or any public authority or publicly stir up one part of the population against another.

One might argue that they insult or contemn the Muslim community, but if they do it's in a mild enough way that really oughtn't get restricted. C'mon, "We're out of virgins"?
2.16.2006 3:04pm
Fishbane (mail):
I thought it might be because it is a lie, a lie linked to groups, which want to promote anti-social violence or subvert democratic government.

I can only speak to the German understanding of this, not other countries.

It isn't that it is a lie. Lying is legal (subject to the normal western legal caveats, with a German twist, of course). What is not legal is a particular content-specific public utterance, which has proven in the past to be harmful to Germany as a nation (oh, and to some people, too).

I'm not defending it. In fact, I have very mixed feelings about it. I lived there and have close relations to native Germans, and across generations, one sees an interesting split in opinion. I suppose a realist view is "well, it worked...", even though I prefer realist views that are also attached to a positive freedom related norm.

Of course, using such a law to target cartoons that muslims find offensive is a category error, but that's not to say it wouldn't happen in Germany (putting aside the average German's feelings about muslims; already pretty low...). Like any nation, a lot of silly things happen.
2.16.2006 3:31pm
TC (mail):

"Holocaust denial, which is often restricted chiefly because it's seen as implicitly or explicitly anti-Semitic"

Is that why H-denial is restricted? Really?


Good question. While I've never understood the exact legal rationale for Holocaust-denial laws (see, for instance, David Irving's current case in Austria), I thought these laws were linked to specific groups and specific historical actions.

Are general anti-Semitic statements illegal also? Or is it just Holocaust-denial?
2.16.2006 3:34pm
TangoMan (mail) (www):
Along similar lines Emeritus Professor Tatu Vanhanen, the father of Finland's Prime Minister, was the subject of a police investigation on whether his book, which investigated the correlation between GDP and IQ, was hate speech.
2.16.2006 4:09pm
JSinger (mail):
I think there's a faulty assumption made, both here and in general, that the radical Muslims perceive the Holocaust denial issue the way Westerners do. When Westerners note the disparity between free speech for cartoons of Mohammed and restriction of Holocaust denial, whether to argue that both should be banned or neither, they're talking about Holocaust denial as a clear-cut case of obnoxious, distasteful speech.

What should have become clear in the last few weeks is that the Islamicist groups don't bring up the Holocaust as a Godwinist prop -- they want to engage in Holocaust denial, have been frustrated by being prevented from doing so and are responding to the hypocrisy they see with the cartoons because the European laws are in practice a burden for them.
2.16.2006 4:20pm
Marcus1 (mail) (www):
Are you sure your actions would be illegal, Eugene? Seems the big question is what is meant by "insult." Is there perhaps an element of intent in the Norwegian law?

If so, you could only be convicted if it were proved that you intended to insult Muslims. The mere fact that a Muslim took offense, I would think, would not be enough.

In the abstract, it doesn't seem too stupid of a distinction. If a person says something negative that incidentally insults somebody, it seems quite clear that this must be protected speech. I bet Norwegians would agree.

If the intent is to insult a group of people, though, to incite anger and such, then does that kind of speech fall in the same boat? I'd say not necessarily.

As far as the Holocaust, I don't think the laws are justified simply to criminalize racism. I'm not sure which countries exactly outlaw denial, and to what extent, but I would think it would be very much related to the fact that Germany committed a holocaust 60 years ago. To allow the denial would be to risk the recapture of power of those who might do the same thing again.

Not that I necessarily support the laws. Claiming a double-standard between that single instance, though, and the failure to crack down on satirical cartoonists, strikes me as rather baseless. Really, I think people just enjoy ranting about double-standards.
2.16.2006 4:51pm
TheProudDuck (www):
I wonder if one could analogize a legal ban on denying the Holocaust with the law of fraud. Specifically, such a law might establish a presumption of (1) the falsity of the statement that there was no Holocaust, and (2) given the overwhelming evidence that it happened, knowledge by the speaker of the statement's falsity and intent to deceive others.

Such a law might allow an accused party to avoid liability by rebutting one of these presumptions (in practice, the latter) by showing that he had evidence from which a reasonable person could conclude that the Holocaust didn't happen as history records. (It would probably be a tough burden to carry to rebut that presumption.)

This wouldn't require too great a modification on the law of fraud, I wouldn't think. This would be different from a mere statement of (possibly bigoted) opinion, like "Moravians are greedy." Free speech doesn't protect fraudulent statements of fact.

I know Eugene teaches at the wrong LA law school, but how's that for an argument?
2.16.2006 5:05pm
davod (mail):
Europe is slowly slipping into a totatitarian form of government. The EU was always to the left of most governments but now you see governments setting up laws which will be used to stifle all forms of speech.
2.16.2006 5:21pm
davod (mail):
PS:

I neglected to mention the UK, which, for a long time represented the sane voice of the EU. The Blair government is now pushing forward a bill which, if enacted, would allow ministers to change accepted bills (laws) without the input of Parliament.
2.16.2006 5:23pm
DRS:
FYI Prof Volokh &Justice Brandeis, wherever you may be: Israeli publisher/artist launches a contest for the best anti-Semitic cartoon -- drawn by a Jew.
SOURCE: NPR/National Public Radio
"Stealing Thunder from Satirists in the Mideast"
by Terry Gross

Fresh Air from WHYY, February 16, 2006 · A new tactic has emerged in the angry debate over cartoons depicting religious figures, as an Israeli artist launches a contest for the best anti-Semitic cartoon -- drawn by a Jew. Amitai Sandy says the Israeli Anti-Semitic Cartoons Contest is a response to an Iranian newspaper's competition for cartoons on the Holocaust.
Sandy, who is also the publisher of Dimona Comix, describes the issue as a matter of pride. He insists that Jews can offer sharper, more offensive satire of themselves than anyone. After the contest's deadline of March 5, 2006, the winners will be displayed in Tel Aviv.
http://www.npr.org/templates/story/story.php?storyId=5219479
Justice Brandeis oft cited writing in Whitney bears repeating:

"It is the function of speech to free men from the bondage of irrational fears....Those who won our independence.... did not exalt order at the cost of liberty....They believed liberty to be the secret of happiness and courage to be the secret of liberty.....If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

DRS.
2.16.2006 5:48pm
Joe Y (mail):
Holocaust denial is the European equivalent of the "yelling 'fire' in a crowded theater" trope. In Europe, the Holocaust was the culmination of centuries of hideous crimes and grinding oppression, all actively incited, abated, and aggravated by vicious lies of the most outrageous and bigoted type.

I do not see any advantage that banning Holocaust denial brings, as long as it remains acceptable to delete "Jew" from the most vicious Nazi propagana, paste in the word "Zionist," and attain instant intellectual respectability, even admiration.

Still, context is everything. However, if Muslim sensibilities are so tortured by the sight of--of--of...well, of everything, perhaps they can find 6,000,000 shahids seeking their 72 virgins. In exchange, we'll give them their law.
2.16.2006 6:04pm
coe (mail):
FWIW, a number of EU countries signed onto the additional protocol to the Council of Europe Cybercrime Convention, which deals with "racist and xenophobic materials," and related issues, including Holocaust denial (and denial of acts of genocide generally) on computer networks.

http://conventions.coe.int/Treaty/en/Treaties/Html/189.htm
2.17.2006 1:09am
Raj (mail):
I have to agree with Eugene here.
There is no doubt that in the UK the presence of the Blasphemy laws against Christianity have led peole to believe that there can be a logical argument to extend this to other religions.
Equally, the fact that there are state funded Catholic schools here have also led to the idea that there should also be state funded Muslim (or Hindu, Sikh etc) schools.
2.17.2006 4:17am
Mark F. (mail):
Well, monotheism is a big lie, so why isn't promoting it illegal?
2.17.2006 12:49pm
jgshapiro (mail):
Is there perhaps an element of intent in the Norwegian law? . . . If so, you could only be convicted if it were proved that you intended to insult Muslims. The mere fact that a Muslim took offense, I would think, would not be enough.
Can't intent be inferred from actions? If he knew (as he surely does by now) that at least some Muslims found the cartoons offensive and he linked to them regardless (whatever his true motive), I can see a prosecutor saying that he must have been motivated, at least in part, by a desire to insult.

Or at the very least, he was indifferent to the insulting nature of the content to which he linked. So you have a charge of 'reckless indifference' to insult, the manslaughter equivalent to intentional murder.
2.18.2006 4:45am
dweeb:
The post describes as "restrictions on "hate speech" and "incitement to hostility" that Europeans (and some Americans) sometimes praise as a model "reasonable" alternative to America's speech protections."

the law excerpted here:

"Any person who endangers the general peace by publicly insulting or provoking hatred of the Constitution or any public authority"

a good example of the conduct prohibited should be familiar to readers of "The Wizard of Id" comic strip:

kloppity kloppity kloppity "The King is a fink!" kloppity kloppity kloppity

Reasonable, yeah.
Is there any more important reason for free speech than the right to publicly criticize the government and its leaders? Isn't it great that we fought WWII to keep Europe 'free?'
2.20.2006 9:43am