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A New International Law "Value" -- Freedom from "Defamation of Religions"?

Washburn University law professor Liaquat Ali Khan has an interesting article in The American Muslim called Combating Defamation of Religions:

A new value is emerging in the realm of the peoples' rights. Now two years in a row, the United Nations General Assembly has passed a resolution called, Combating Defamation of Religions. Although the Defamation Resolution applies to all religions, it highlights "the negative projection of Islam in the media and the introduction and enforcement of laws that specifically discriminate against and target Muslims." ...

The General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community's views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law....

[T]he Defamation Resolution urges states to prevent political institutions and organizations from fomenting discrimination, hostility, and violence against religious groups....

The idea of combating the defamation of religions, though morally sound, is difficult from a legislative viewpoint and will pose serious drafting challenges. The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States. One key function of law is to make distinctions and draw balance between competing rights. In the complex realm of human affairs, no right is absolute, not even free speech or the dignity of religion. Accordingly, the law against defamation of religions may be constructed in a way that does not abridge legitimate speech including artistic freedom and yet protects the dignity of religion....

I appreciate the article's acknowledgment that many criticize the resolution on free speech grounds — yet it seems to me hard to read the article as anything but an endorsement of the resolution, and an endorsement of some restrictions on "[il]legitimate speech" that undermines "the dignity of religion." Unfortunately, the article doesn't explain just how the "serious drafting challenges" are to be resolved; and though I e-mailed Prof. Ali Khan on Monday to ask him for his thoughts on the subject, I haven't yet heard back from him. It's therefore hard to figure out precisely what kind of speech Prof. Ali Khan and other backers of the Resolution would like to restrict. A good place to start, though, is one of the provisions of the resolution:

The Commission on Human Rights ... Urges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence.

Prohibiting the dissemination of xenophobic ideas aimed at any religion that constitute incitement to hostility — sounds like a pretty broad proposition. It would cover many atheist criticisms of religion generally; many secularist criticisms of fundamentalist Christianity (or Islam or Judaism); condemnation of religious groups that are alleged to be cults or scams; many theological criticisms of a wide range of religions; many pro-gay-rights or pro-women's-rights condemnations of religions that are seen as hostile to gays or women; and much more.

I think American law is correct in protecting even racist speech, or speech that advocates discrimination (even when limited to illegal discrimination) or violence. But the Resolution, and the very concept of "defamation of religions," suggests the suppression of much more speech than even that.

Two more thoughts:

1. Slippery Slopes: Note how Prof. Ali Khan relies on "The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States." This is precisely what those who fear slippery slopes worry about.

A narrow exception for so-called racial or ethnic "hate speech" is adopted (often partly based on grounds that racial or ethnic hostility is illogical because it turns on irrelevant traits such as people's skin color). Then it's broadened to cover religious "hate speech," though religion is ideology and hostility to people based on their ideology is at least more sensible than hostility based on race. (Though I think that religious hostility is generally unjustified despite this, there is an important distinction between racial and religious hostility — but a distinction that many foreign hate speech laws disregard.)

Then this is used as an analogy to support proposed bans on "defamation of religion" generally, a category that's considerably broader than calls for discrimination or violence against the people who adhere to the religion. After all, almost all countries restrict "hate speech"; that broad acceptance suggests (the argument goes) that the restrictions are indeed sound; why not extend them a little further? And of course once we slip down to restrictions on defamation of religion, those restrictions in turn can be used as analogies to support further restrictions.

2. The Subtle Insinuation of International Law into Our Constitutional Law: Finally, this returns me to a Stanford Law Review article I read a few years ago. Signing treaties, the article said, may erode the Bill of Rights: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment.

Yes, 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 it turns out that 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."

These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from Treaties, International Law, and Constitutional Rights, by Prof. Peter Spiro, one of the leading American international law scholars. 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.

Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms, both those explicitly mentioned in treaties and those created by authoritative organs such as the U.N. General Assembly (which themselves derive their legitimacy from treaties that crated them). They may think the international lawmaking community — mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field — will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should be careful that none of the treaties that our elected representatives sign include language that broadly approves of "new value[s]" "in the realm of peoples' rights" such as freedom from "defamation of religions," or that authorizes international institutions to create such "new value[s]."

We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my views in this post, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

Today, as Prof. Ali Khan points out, many foreign countries do not endorse the "emerging" "peoples' rights" "value" of freedom from "defamation of religion" (though enough endorse it to get General Assembly approval). But most foreign countries have endorsed values that aren't that far off, such as freedom from racial and religious "hate speech." It's quite plausible that in a few decades, Prof. Ali Khan's perspective will indeed be adopted by the great majority of foreign countries. I'd hate to see that undermining free speech in America — yet Prof. Spiro's arguments suggest that it might, especially (but not necessarily only) if the General Assembly Resolutions are embodied in future treaties.

Our Constitution is far from perfect, both as written and as interpreted. I think courts should indeed change their views on many issues, and people should try to press courts to do so. But this should be our decision as Americans. We should not cede our control over our constitutional rights to international bodies, international professional elites, or even to our own President and Senate.

josh:
Does it necessary follow from your analysis of a "bad" international law that "We should criticize judges who rely on international norms in interpreting American constitutional provisions." You seem to be taking a small problem and conflating into a umbrella rule.

I have never understood the issue with using international law to inform US decisions. I suppose it depends on how you define "rely" in your sentence. Should American judges "rely" on international law as binding precedent? Of course not. But I view the use of international law here as the use of out-of-state or out-of-district precedent when one's jurisdiction has no case law on a particular subject. Certainly those types of precedent can inform a judge as to how he or she should come down on a particular issue.

Take the death penalty against juveniles or the mentally retarded. When our court "relies" on international law to overrule prior precedent allowing the practice, does it cite the international law as binding precedent that mandates the reversal? I don't think so. I think doing so would be improper. But can our court look to the normative values of the rest of the world to inform itself of how the issue might be framed? I'm not sure there's anything wrong with that.

Of course, this treads into the realm of textualism and whether such normative values can ever have any place in the analysis n the first instance, but I'm not a textualist and that's probably fodder for another thread. But if one can even slightly contemplate that due process, for example, might have different meanings today than it did in 1776, or in the 20th century when the death penalty for juveniles was deemed constitutional, it would seem that looking at the rest of the world's view on the issue would be relevant and informative on how to approahc the issue.

Again, having finished writing this comment, I can see the counter argument that what I have just described is a matter for the Legislature, and not the courts. There's a valid argument that way. But if one thinks it might be within the court's function, then "relying" on international norms would seem appropriate.
2.7.2007 11:27am
Duncan Frissell (mail):
Luckily, the existence of the Nets provides us with a technological fix that allows us to ignore such attempted legal restrictions.

Even without the use of anonymous posting, the sheer volume of communications renders effective speech restrictions impossible because of the physical limitations of state actors.
2.7.2007 11:27am
Mark Field (mail):
I'm in complete agreement on the subject of speech prohibitions.

When it comes to the use of international law, I think it's important to distinguish between "soft" citations and "hard" citations. The former use international law as a source of ideas: if we find a good idea in the jurisprudence of another country, it makes sense to use it. It's not like Americans have a monopoly on legal analysis or good ideas. The latter treat international law as binding in some way. That's much more problematic and I support it only in cases where international law is the relevant law of decision.
2.7.2007 11:29am
ed o:
Islam does a good job of combating such speech by threatening death upon those who do so-why ruin a good thing with some governmental nonsense. self censorship based on fear of a bomb going off in your lobby and the strange sense of western guilt which mandates you can't criticize religion practiced in third world seems to do the trick with the media right now. as to international law, shouldn't we be in the forefront of following and conforming to international norms? haven't several of our S. Ct. justices said so?
2.7.2007 11:30am
ed o:
Islam does a good job of combating such speech by threatening death upon those who do so-why ruin a good thing with some governmental nonsense. self censorship based on fear of a bomb going off in your lobby and the strange sense of western guilt which mandates you can't criticize religion practiced in third world seems to do the trick with the media right now. as to international law, shouldn't we be in the forefront of following and conforming to international norms? haven't several of our S. Ct. justices said so?
2.7.2007 11:30am
Kevin P. (mail):
I believe that Ed O's remark above qualifies as a "defamation of religion" :-|
2.7.2007 11:37am
Colin (mail):
The latter treat international law as binding in some way. That's much more problematic and I support it only in cases where international law is the relevant law of decision.

Can you cite any case applying international law as binding where it isn't imputed through choice of law or other noncontroversial doctrine? I agree that it would be inappropriate to apply foreign law as binding in such circumstances, but I'm not aware that it ever happens.
2.7.2007 11:38am
Benjamin R. George (www):
Is it unreasonable to hope that we'll see some high-profile Lutheran figures (to pick one appropriate example) speaking out against this sort of foolishness?
2.7.2007 11:39am
Kevin P. (mail):
We all know that such speech suppression laws will be enforced in a selective manner. The UK has hate speech laws and little is done about stuff like this.
2.7.2007 11:41am
Prigos:
Even for those that think the UN has a place, this sort of thing can be galling. Democracies can either refuse to accept it and come under fire for that, accept it but make no effort to enshrine it in law and become the target of criticism, or accept it, change the laws and undermine basic freedoms. Then you've got the Islamic Conference, Cuba and China, that can happily use the situation, however it resolves, as a PR weapon while they ignore it completely with no consequences beyond a few reproving comments from the above democracies.
2.7.2007 11:52am
ed o:
well, it's binding if 5 member of the court think it is binding. if, to make it palatable, the jurists choose to follow it softly as opposed to hard, it practically makes no difference. do some justices want "international" norms (ie. european) followed in death penalty jurisprudence-chicken little conservatives warned about this but were tarred as jingoistic, backward and paranoid. why be shocked if these international norms start to creep into other facets of the law?
2.7.2007 11:54am
Peter H (mail):
Maybe Ali Khan is identical with this one
2.7.2007 12:24pm
ROA:
Wouldn't this article be more credible if Muslims didn't routinely run around saying Jews use the blood of Muslim children for their religious ceremonies and continue spreading "The Protocols of the Elders of Zion"?
2.7.2007 12:27pm
liberty (mail) (www):
That is truly frightening. It is pretty much international thought-crimes law or international censorship designed to re-educate.
2.7.2007 12:31pm
18 USC 1030 (mail):
Professor Volokh,

I was totally with you until your second point about International Law trumping the Constitution. Where, Pray tell, has the United States ever treated International Law above Domestic Law? Even if you are thinking about the Child death penalty, the court did not view the law of other countries as binding...persuasive, just as the High Court of NY may use a decision of the High Court of NJ. Besides, there is a difference between "Foreign Law" and "International Law". The law of other countries is Foreign Law; Customary International Law and Treaties are International Law.

I have NEVER seen a decision where the United States implemented International Law over Domestic Law, when they were in conflict. Further, I'd appreciate it if you could show one international instrument, that has any judicially enforceable requirements, whatever that the United States signed/ratified without a RUD stating that it was ratifying the treaty to the extent that it complied with the Constitution of the United States, or, redifined terms in order to protect the Constitutional rights. For example consider the following:

Reservation 1 to the ICCPR

That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.

Reservation 3 to the ICCPR

That the United States considers itself bound by article 7 to the extent that `cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

Furthermore, the United States makes declarations to show its protection of Constitutional mandates. For example:

Declaration 1 to ICCPR

That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing.

Declaration 2 to the ICCPR, which would seem to protect against this supposed new norm

That it is the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant, even when such restrictions and limitations are permissible under the terms of the Covenant. For the United States, article 5, paragraph 2, which provides that fundamental human rights existing in any State Party may not be diminished on the pretext that the Covenant recognizes them to a lesser extent, has particular relevance to article 19, paragraph 3 which would permit certain restrictions on the freedom of expression. The United States declares that it will continue to adhere to the requirements and constraints of its Constitution in respect to all such restrictions and limitations.

Even if this derogatory speech were to enter the realm of Customary International Law, the United States, by its continual refusal to support such prohibitions would be exempt from being required to make such proscriptions. This once again strikes me as fear over nothing. If the United States was willing to put forth the RUD's it did to the ICCPR, a non-self executing document--do we really think the US would accept a self executing document violating the Constitution? I think not.

Most of these instruments don't have any enforceable weight, anyway. Sure there are people that try to argue that they do. But, is this a bad thing? Sure many of us disagree with most of the arguments favoring many of the International Instruments, I am in full agreement with you that most of this stuff should not be the law of the United States. However, my disagreement with many of these instruments fades when I leave the supposed utopia of my brain and I am faced with the real world.

Suppose you are facing a client who, though wronged terribly in some way, there is little domestic law supporting a cause of action, but no domestic law prohibiting it either. Further suppose that there is a "reasonable" argument to be made on an International Instrument that may serve as a reasonably persuasive motivating argument. Are you going to throw it in to try to help you somewhat weak case? I'm not sure where circumstances like this would arise--but I think if I faced it, in the interest of my client, I'd have to try it. I guess the only thing close would be death penalty appeals or a prisoner who was harmed in prison but somehow, it was debatable whether it was to the degree necessary to support a suit.

I think the political/ethical/moral side of these instruments as a potential aid in certain types of cases. Do I really like the use of them? No, not really. Do I think they should be enforced, generally? No. But, if my client's life literally depended on it, do I think it should be argued? Probably.

I understand the obvious problem with this view. But, I think that there is a difference between our philosophical/political views and what we can rely on in the defense of a client. So long as the instrument isn't being viewed as mandatory authority, I don't see a problem with using it as a benefit in the defense of a client. Of course, I'd also say that this needs to be tempered by the judiciary's willingness to say that an argument is far-fetched and that the court is unwilling to follow it. Seems to me, though, that cases exist where the use of many instruments that I would not want as mandatory authority may have benficial uses as persuasive authority.
2.7.2007 12:34pm
Yankev (mail):
The drafting challenges are more than formidable; they are impossible. Defense of one's own religion by definition entails speech that Muslim leaders have charged with being defamatory. Recall the criminal prosecution of two protestant clergyman in New Zealand or Australia not long ago for religious defamation, based on nothing more than preaching sermons contrasting their favorable view of Christianity as compared to Islam. As former Muslims, the preachers were well acquainted with both religions. At trial, the prosecutor was urged by Muslim consultants to object to the defendants' attempt to read from the Koran in support of their critiscisms of Islam. Remarkably, the judge sustained the objection, and bought the argument that for a non-Muslim to read from the Koran was itself defamatory.

We have also seen criminal prosecutions of ministers in Canada and Pennsylvania for merely preaching that the Bible considers homosexuality a sin, even though they stressed the duty of Christians to love the sinner.

This standard could outlaw parts of the Koran itself, the Gospel of John, other parts of the Christian Bible, the writings of Luther (both on the subject of Jews and of the Roman Catholic Church), John Calvin, as well as (l'havdil) the Tanakh and the Talmud.

The proposed norms are irreconbilably opposed to Englightment notions of freedom of speech and conscience that are embodied in our Bill of Rights. With all due respect to Prof. Spiro, Josh, and certain justices of our Supreme Court, had international law and norms been taken into account at the time, we never would have had a Bill of Rights to begin with.
2.7.2007 12:35pm
guest (mail):
How would the Quran fare under this proposed law? The Quran contains some positive comments about Judaism and Christianity, but it also contains dozens of withering condemnations of Judaism, Christianity, and polytheism. Would reading those passages of the Quran aloud in prayer services constitute a legal violation?
2.7.2007 12:36pm
Thorley Winston (mail) (www):

Take the death penalty against juveniles or the mentally retarded. When our court "relies" on international law to overrule prior precedent allowing the practice, does it cite the international law as binding precedent that mandates the reversal?


Well being that the Supreme Court is pretty much the final arbiter, there really isn't for practical purposes any such thing as "binding precedent that mandates [] reversal" of any previous decision it made. They can follow previous decisions they've made, reverse them, or distinguish them to their heart's content without regard to any previous decision that was made or why.

But as far as the case you mention, the problem that a lot of us have is that the Eight Amendment's jurisprudence on what constitutes constitutionally-prohibited "cruel and unusual punishment" now turns on the nebulous "evolving standards of decency" which (despite the assurance of the proponents of this doctrine) really does seem to be "whether five of us personally agree with the punishment." We've seen attempts to justify what constitutes "evolving standards of decency" based on things like how States have changed their laws to justify a shift in opinion about what is now "decent" in our society. Whether one agrees with the Court using that to justify its opinion, it is entirely different for the Court to refer to how other countries do things and in effect saying that it is going to require that we follow the examples of others and that it is our own Constitution which commands it.
2.7.2007 12:39pm
AppSocRes (mail):
If real nation-states, e.g., the US, most European nations, Israel, et al., were to adopt this standard and forcefully impose sanctions on those countries whose governments defy it (predominantly but not solely countries with majority muslim populations); I suspect there would be a steadily diminishing level of international support for the standard: A vast amount of Sharia law. the Koran, and Haditha are in obvious violation of the standard.
2.7.2007 12:47pm
Respondent (mail):
One way in which international norms have already undermined the bill of rights is the Supreme Court's reliance on international norms to accept arguments that allow extradition of American citizens (a far bigger deprivation of liberty than being exposed to a six month jail sentence for an American crime, for which pretty serious constitutional requirements are insisted upon)with almost no process- hook line and sinker. To me this is the most serious "international norm" infringement upon the constitution to date.
2.7.2007 12:50pm
Prigos:

We have also seen criminal prosecutions of ministers in Canada and Pennsylvania for merely preaching that the Bible considers homosexuality a sin, even though they stressed the duty of Christians to love the sinner.

There have been no criminal prosecutions of ministers in Canada for such. It's a popular myth among certain woe-is-me elements, but it's false.

First, assuming you're talking about the Owens newspaper ad, it was a human rights tribunal with very limited powers. Second, the ad did not stress the duy of Christians to love the sinner, but quoted bible passages condemning homosexuality and showing two stick men holding hands in a circle with a line through it. Finally, and more centrally to your claim, the human rights tribunal decision in the Owens case, and the subsequent QB decision supporting it have been overturned by the Saskatchewan Court of Appeal.

For the record, I'm personally of the opinion that the legislation in question is fatally flawed.
2.7.2007 1:01pm
Mark Field (mail):

Can you cite any case applying international law as binding where it isn't imputed through choice of law or other noncontroversial doctrine? I agree that it would be inappropriate to apply foreign law as binding in such circumstances, but I'm not aware that it ever happens.


As far as I know, there is no such case. I'm aware only of the "soft" citations and think the screams about the use of international law in SCOTUS opinions are overwrought, to say the least.
2.7.2007 1:03pm
Yankev (mail):
Prigos,

I am happy to learn that the reports of criminal prosecution in Canada were exaggerated. On the other hand, even the prospect of a civil penalty is deeply troubling.

I used to get handed a lot of tracts telling me that I was going to burn forever in Hell for not believing that a certain man was in fact G-d. Many of these tracts were laughable; the more offenseive of them claimed to be based on my religion, and were replete with mis-translated, distorted, dishonest and out-of-context quotes from my religion's scriptures, purporting to prove the tract's point.

Should the people who handed me those tracts be dragged forced to defend themselves before a human rights tribunal, even one with "very limited powers"? Would their supposed offense be worse if their mistatements were published in an ad? Am I equally subject to sanction for saying that their quotations are mis-translated, distorted, dishonest and out of context?

Welcome to retreat from the enlightenment, all in the name of protecting human rights -- as long as you don't exercise the human right to think critically and to speak about your conclusions.
2.7.2007 1:20pm
logicnazi (mail) (www):
Certainly no one can be claiming that as some sort of fundamental moral matter religious beliefs require more protection. I mean the very idea that their is some difference of essential difference between religious beliefs and other beliefs is just ridiculous. As an abstract belief there is no difference between the belief that Jesus rose from the dead and that napoleon did not.

Instead the justification for these laws has to be more pragmatic, based on the strong emotions kicked up when people find their religion criticized and the threat to social order that religious conflict poses. Already though I am very disturbed that we are letting people avoid criticism because they throw a big enough tantrum when the get criticized. I mean if I thought it would work I would create a secular group that would throw huge tantrums whenever it heard a public figure mention god just to counter the unfairness.

Now I watched enough of the debates in England over the religious hate speech bill to know that the proponents of these laws believe they will only apply to truly hateful rhetoric, the type that urges violence or discrimination but not to valid criticism. However, the very fact that they want restrict this law to religious criticism gives the lie to this claim. If the supporters really believed it was possible to draw the line between unacceptable hate and valid criticism then they should support a general law against any sort of hateful speech. Limiting the law to religion shows that they really are outlawing certain criticisms they think are valid in other subjects.

Moreover, as we have seen with hate speech it is doubtful that these intentions will prevent the law from being applied much more broadly. In particular I fear that what counts as 'hateful' will be determined from the perspective of the offended party (in Islam depictions of the prophet are a great insult) rather than the intentions and context of the offending party. Worse, with the offended party taking up the mantle of the victim media will be loath to question their word about what they find offensive. For instance during the cartoon controversy much of the media continued to repeat the claim that muslims were offended by depictions of their prophet despite the many examples in architecture and culture which showed many of them were merely offended by unflattering or unserious depositions.

So as a practical matter these laws are completely bankrupt as well. Just like the laws suppressing Mein Kampf and other Nazi related propaganda in Germany has probably given Nazism a certain anti-establishment draw there it would not surprise me if this encouraged the most extreme anti-social rejection of muslims in europe while suppressing the moderate criticism that might have provided a safety valve.

So in short the net effect of these laws is to push the angry anti-immigrant mobs in europe towards even more extremism while suppressing free speech and encouraging religious groups to become every more touchy to fend off criticism.
2.7.2007 1:21pm
B. Williams (mail):
It is clear that the freedom of expression and opinion is a fundamental right, the mother of all rights.

-- Abid Hussain, UN Special Report on the Freedom of Information, 1999


If the fires of freedom and civil liberties burn low in other lands, they must be made brighter in our own. If in other lands the press and books and literature of all kinds are censored, we must redouble our efforts here to keep them free. If in other lands the eternal truths of the past are threatened by intolerance, we must provide a safe place for their perpetuation.

-- Franklin Delano Roosevelt, 1938


Freedom of speech means the right to express one's ideas without danger of physical coercion from anyone. This freedom includes the right to make movies, write books, draw pictures, voice political opinions -- and satirize religion. This right flows from the right to think: the right to observe, to follow the evidence, to reach the conclusions you judge the facts warrant -- and then to convey your thoughts to others.

In a free society, anyone angered by someone else's ideas has a simple and powerful recourse: don't buy his books, watch his movies, or read his newspapers. If one judges his ideas dangerous, argue against them. The purveyor of evil ideas is no threat to those who remain free to counter them with rational ones.

But the moment someone decides to answer those he finds offensive with a knife or a homemade explosive, not an argument, he removes himself from civilized society.

-- Onkar Ghate, Ayn Rand Institute
2.7.2007 1:31pm
Owen Hutchins (mail):
While I think this would not be a good thing, what gets me is how many of the same people defended the anti-Islamic cartoons as free expression and condemned protest (even peaceful) against them turned right around and condemned the anti-Jewish cartoon contest Iran had.
2.7.2007 1:35pm
Owen Hutchins (mail):

We have also seen criminal prosecutions of ministers in Canada and Pennsylvania for merely preaching that the Bible considers homosexuality a sin, even though they stressed the duty of Christians to love the sinner.



Assuming the PA case is the one involving picketing at a gay pride parade in Philadelphia, you'll also be happy to know that the charges were dismissed. With the help of the PAACLU, btw.
2.7.2007 1:40pm
logicnazi (mail) (www):
If you hadn't noticed these sort of laws make me really mad. I already gave my arguments against them but I thought I would share what makes me so steamed about them.

Basically it seems to me that laws like this carry an implicit message that religious belief is important, valuable and thus deserving of protection. They create a two tier system that puts religious beliefs on one level and secular beliefs on a lower one. The message to the atheist is that your beliefs aren't as good as religious beliefs.

I feel as strongly about the thesis that religious belief is nothing special and deserves to be treated like any other claim as many religious people do about their beliefs. So for a law in one feel swoop to both set the opposite into law and tell me that my beliefs are less valuable than religious beliefs is a pretty intense slap in the face.

--

guest,

I think looking at these laws in England provides a good guide to what would happen. Yes, Muslim extremists who call for violent jihad against Christians would be prosecuted but just the statements in the Koran or other books would not get one prosecuted.

This is part of what I mean about the two tier system. Traditional statements in a recognized religion are given great leeway and the law will defer to the religion to explain the statements in their own holy book and sermons (letting them explain away apparent violations). However, secularists and others who don't come to court with the mantle of religion don't get the same benefits.

In short if I'm in a religion I can give a long fiery sermon about how all non-believers will not be saved and how prophet X said anyone who follows the false prophet is less than dirt will burn for eternity and get away with it. On the other hand if I merely say as a secular matter that Mohammad/Jesus/whoever was a paranoid schizophrenic who spewed obvious bullshit and anyone who follows them is an idiot I risk running afoul of the laws.
2.7.2007 1:42pm
exhelodrvr:
I'm assuming the Professor is Muslim; curious what he thinks would happen to the anti-Semitic textbooks/instruction at so many of the schools in Islamic countries?
2.7.2007 1:52pm
Bill S:
Great - another example of the totalitarian philosophy enforced by Muslim society.

In Muslim countries, a Muslim who converts to Christianity is an apostate and faces the death penalty. Under the UN mandate, the punishment would probably be viewed as appropriate given the Christian "defamed" Islam by converting.
2.7.2007 1:53pm
Hoosier:
Oh wise VCers--Help Me:

What laws is the author speaking of in this passage: 'the introduction and enforcement of laws that specifically discriminate against and target Muslims'.

What country or countires are meant here? Are American laws included in this? If so, any idea which ones?
2.7.2007 2:00pm
Peter H (mail):
I'm assuming the Professor is Muslim; curious what he thinks would happen to the anti-Semitic textbooks/instruction at so many of the schools in Islamic
countries?


Yes, he is a Muslim. Professor Ali Khan wrote an article 'Islam as intellectual property' for Cumberland Law Review

available on SSRN analogizing Islam to intellectual property, and
that a Muslim who proposes or makes any changes to Islam is like a corporate insider breaching his fiduciary obligation.


The case embodies the principle that every Muslim, as a trustee, is under a
fiduciary obligation to protect the integrity of protected knowledge. Islam
prohibits its followers from making or proposing any innovations in the
fundamental structure, design, and ingredients of the protected knowledge. In
contemporary society, this prohibition is perhaps best understood by an
analogy to the computer world. For example, no secular state will protect a
person who makes unauthorized alterations in proprietary software, [FN158] and
it may even criminally punish or impose punitive damages if a hacker
introduces a computer virus that infects the system. [FN159] This offense will
be even more punishable if the person subverting the source code of a software
program is a trusted insider. The prohibition in Islam is similar, but much
stricter. [FN160] Islam forbids Muslims from making any innovations in the
essentials of protected knowledge.
2.7.2007 2:26pm
Elliot Reed:
Then it's broadened to cover religious "hate speech," though religion is ideology and hostility to people based on their ideology is at least more sensible than hostility based on race.
This is not really relevant to the broad point, but I think your conception of religion is excessively narrow. Religion is much more than ideology: it's also culture, tradition, and ritual. Ideology plays a large role in some religions (evangelical Protestantism) but not in all. To take an extreme example, if you tried to understand Reform Judaism by studying only (or principally) Jewish theology you would completely miss the point.
2.7.2007 2:30pm
steve lubet (mail):
Owen Hutchins said:


While I think this would not be a good thing, what gets me is how many of the same people defended the anti-Islamic cartoons as free expression and condemned protest (even peaceful) against them turned right around and condemned the anti-Jewish cartoon contest Iran had.


There is no contradiction between defending the Danish cartoons as free expression, and criticizing the Iranian anti-Jewish cartoon contest as vile. No one burned any embassies in protest of the Iranian contest.

Also, I am unaware of any serious objection to peaceful protests against the Danish cartoons. Can you provide a single example of someone who "condemned" such a peaceful protest and then "turned right around" and protested the Iranian contest?
2.7.2007 2:32pm
Harry Eagar (mail):
Duncan sez: 'the sheer volume of communications renders effective speech restrictions impossible because of the physical limitations of state actors'

Yeah, that's working great in Saudi Arabia and China, ain't it?
2.7.2007 2:57pm
David M. Nieporent (www):
While I think this would not be a good thing, what gets me is how many of the same people defended the anti-Islamic cartoons as free expression and condemned protest (even peaceful) against them turned right around and condemned the anti-Jewish cartoon contest Iran had.
There is no contradiction between those. Defending X as free expression and yet condemning X are not in conflict.

And can we please skip the red herring that the cartoons were opposed because they were "anti-Islamic"? The cartoons were opposed because according to Muslim belief, one should not depict Mohammed at all, positively or negatively.
2.7.2007 2:59pm
MnZ (mail):

Oh wise VCers--Help Me:

What laws is the author speaking of in this passage: 'the introduction and enforcement of laws that specifically discriminate against and target Muslims'.

What country or countires are meant here? Are American laws included in this? If so, any idea which ones?


I suspect that he means "statistically" target Muslims. In other words, laws that have disproportionate effects on Muslims would need to be adjusted.

How I wish I could say that I am being sarcastic!
2.7.2007 3:00pm
BVBigBro:
The most disturbing part of the whole thing is "The idea of combating the defamation of religions, though morally sound ...". Aside from the fact that Mr. Ali Khan believes in the moral superiority of his viewpoint, is he advocating that speech be regulated on its' moral soundness?

I think his ideas, the suppression of speech they would entail and the resulting consequences of that supression are as morally unsound an idea as I have heard in at least a week.
2.7.2007 3:02pm
Barry P. (mail):
I live in an Islamic country, albeit a fairly progressive one, and have had a few discussions with moslems about these sort of topics, especially the Danish cartoon controversy. A lot of moslems will say, honestly, that they (and the Koran) revere Jesus as a prophet, but deny his divine birth. I tell them that Jesus's divinity is the central, fundamental tenet of Christianity; that the belief that Jesus is the son of God is the singular foundation of Christianity, and to deny it is to defame Christianity in a way that is much more severe than defaming a mere prophet, such as Mohamed.

The point being that these moslems argue for laws against defaming other religions, but are closed off to the argument that being a moslem implicitly defames Christianity - that they are, by their simple existence, breaking the laws they strive to enact.

The same, of course, is true of every true believer of every religion - the idea that there is The One Truth that the believer knows, and that all non-believers are wrong.

Many such true believers are surprisingly insecure about the ability of their beliefs to withstand a few insults. I've always found that to be deeply paradoxical.
2.7.2007 3:09pm
Elliot Reed:
The same, of course, is true of every true believer of every religion - the idea that there is The One Truth that the believer knows, and that all non-believers are wrong.
There's certainly no such doctrine in Buddhism. Many religions have such a doctrine, but not all by any means. Unless you're defining "true believer" in a way that makes your claim circular.
2.7.2007 3:12pm
CrosbyBird:
There is no contradiction between those. Defending X as free expression and yet condemning X are not in conflict.

A perfect example would be the Nazi marches in Skokie. One can find their position to be repulsive, yet not favor government interaction prohibiting its expression. The Supreme Court's position (even if just 5-4) agrees with the proposition; few would attribute acceptance of the Nazi philosophical positions to the voting Justices, or the ACLU which interceded on the Nazi's behalf.

Those who advocated censoring Iran's cartoons and not the Danish ones (I have heard of no such people, but they may very well exist) are either hypocrites, bigots, or both.
2.7.2007 3:24pm
Barry P. (mail):
Elliot:

I was thinking about the point you made as I was composing my previous post, but the truth is that I know at least a couple of Buddhists who are pretty dogmatic about the superiority of their belief set. I've read The Teachings of Buddha, and I know that these folks are probably not "good" Buddhists, but the existence of the gap between theory and practice is what makes me an empiricist at heart. In other words, talk is cheap.
2.7.2007 3:25pm
Elliot123 (mail):
Ali Khan: "In the complex realm of human affairs, no right is absolute, not even free speech or the dignity of religion."

I agree no right is absolute, but I fail to see where the "dignity of religion" is a right. I have the right to attribute dignity to religion, but I am under no obligation to do so.

I would also ask Ali Khan to define religion. Must it deal with god(s)? Is athiesm a religion? How about humanism? Buddhism? Deism? What is the test to recognize religion?
2.7.2007 4:06pm
whit:
freedom of speech means little to nothing if it doesn't protect people who say mean things

it's that simple

we are the last country on earth (that i am aware of) that still respects this principle.
2.7.2007 5:43pm
Seamus (mail):
What is "this post by David Bernstein" which is referred to in the main post, but for which there is no link?
2.7.2007 6:14pm
Jon Rowe (mail) (www):
Religion qua religion has NO "right to dignity" to serve as any kind of legal protection against people saying things about it. These are just blasphemy laws in new clothes. Meet the new boss, same as the old boss.
2.7.2007 6:57pm
Eugene Volokh (www):
Seamus: Whoops, accidentally omitted the links at first; just put them in. Thanks for alerting me to this.
2.7.2007 7:10pm
randal (mail):
When you have a word like "unusual", the situation may be different than when you have a word like "abridged". To be meaningful, "unusual" requires a scope, and it's not unreasonable to take that scope to be something other than "within the United States". There may be arguments around what the proper scope is, but they are different arguments than whether we should look internationally for the direct meaning of words such as "abridged".

I've seen little if any evidence that the latter is at risk of happening in the U.S., and I don't think the slope is as slippery as others seem to. I see no reason to affirmatively ignore the rest of the world when there is a reasonable basis not to do so, such as when interpreting "unusual punishment", and find it easy to distinguish such cases from the "displacement of constitutional hegemony".
2.7.2007 8:48pm
Malvolio:

The same, of course, is true of every true believer of every religion - the idea that there is The One Truth that the believer knows, and that all non-believers are wrong.
There's certainly no such doctrine in Buddhism. Many religions have such a doctrine, but not all by any means. Unless you're defining "true believer" in a way that makes your claim circular.
Isn't that the default meaning of "believer"? Someone who believes some particular assertion is true -- which necessarily implies that contradictory assertions are false.

If I say "I believe Eugene Volokh's first name starts with an 'E'", I am asserting that the statement "Eugene Volokh's first name starts with an 'Y'" is (in my opinion) false. If I say, "Credo en unum deum", I am denying polytheism and atheism.

What other meaning for "belief" is there?

There have been no criminal prosecutions of ministers in Canada for [preaching that the Bible considers homosexuality a sin].
Except in Canada .
2.7.2007 8:51pm
nevins (mail):

Many such true believers are surprisingly insecure about the ability of their beliefs to withstand a few insults. I've always found that to be deeply paradoxical.


The problem is that they tend to take out their insecurity by killing the messenger. If the divine one would just buy some infomercial time he could clear up so much confusion the various 'believers' have, like does he really want any group to exterminate another.
2.8.2007 12:51am
NotJosh (mail):
Josh, your post implies that you know what "the normative values of the rest of the world" are. If you don't know what "the normative values of the rest of the world" are then I must read your comment as, "But can our court look to the normative values of the rest of the world, oh gosh, I don't know what, to inform itself of how the issue might be framed? I'm not sure there's anything wrong with that." So, for everyone's education can you please provide us with a list of these "normative values of the rest of the world"? I'll even get you started, here's a short list of topics, please tell us what "the normative values of the rest of the world" are for the following issues:

Abortion, Possession of drugs, Possession of a firearm, Prostitution, A woman driving a motor vehicle, Capital punishment, Corporal punishment, Presumption of innocence, Double jeopardy, Ex Post Facto Laws, Right to counsel, Right to remain silent, Right to a speedy trial, Freedom of religion, Freedom of communication (via speech, press, etc.), Voting.

A quick review of "the rest of the world" will show that laws for the above vary widely country by country. Some things which are completely legal (and legally protected) in some countries are punishable by death in other countries! Which means THERE IS NO SUCH THING as "the normative values of the rest of the world." And if there's not, then there's really not much there to base judicial decisions on, is there? The problem with using "international law" or "the normative values of the rest of the world" in judicial opinions is that it's carte blanche for any judge to pick and choose which "normative values of the rest of the world" they want to use and which ones they don't. Why were "the European Court of Human Rights" and "other nations" cited favorably in Lawrence et la v. Texas but not the laws of some of these countries? Answer - because the judges who overturned Lawrence just didn't like the law in question. That's not interpreting the Constitution, that's making one up on a whim.
2.8.2007 3:23am
NotJosh (mail):
Sorry, the "these countries" link didn't work. Here it is,

http://www.sodomylaws.org/world/world.htm
2.8.2007 3:44am
Colin (mail):

There have been no criminal prosecutions of ministers in Canada for [preaching that the Bible considers homosexuality a sin].

Except in Canada .


No, not in Canada. The article you link to explicity explains that those were not criminal convictions. And I think that at least one of the civil fines was overturned on appeal, but I'm not positive.
2.8.2007 10:17am
Benjamin Davis (mail):
Some countries have constitutions; some don't. Those with constitutions have different approaches to how to organize themselves. As a matter of international law that is just domestic law and of only passing interest. The question on the international plane is whether that state is complying with its international law obligations or not - and if not, why not. That is the interesting point.

If that state does not want to comply with an international treaty to which it is a party or does not want to comply with a customary international law rule (and thus try to have emerge a new customary international law rule) it is in breach of its obligation.

Some states may be seeking this kind of hate speech stuff that is repugnant to us. But so what - apology for the Holocaust is a crime in France based on its history - see the Yahoo versus LICRA dance on Nazi memorabilia in the USDC in San Francisco and the Paris Courts.

The issue that seemed to miss the US judge is - what about the international norm - the US judge did not respond stuck in a Constitutional First Amendment structure and not at least addressing the relevant international norms that were discussed in France (going from memory here).

The French judge did not miss this lack of analysis on the international plane. For that, was it the lawyers arguing or was it the judge's fault?

Best,
Ben
2.8.2007 2:36pm
Toby:
Does all this mean that I can no longer deprecate D&Ders to my teenager?
2.8.2007 4:25pm
Malvolio:

There have been no criminal prosecutions of ministers in Canada for [preaching that the Bible considers homosexuality a sin].
Except in Canada.

No, not in Canada. The article you link to explicity explains that those were not criminal convictions.
That's a nice distinction! They had to pay a fine and publish an apology, under threat of prison. Yes, the Human Rights Commission may not constitute a criminal court, but nonetheless, the government of Canada is unashamedly prosecuting people for express their religious beliefs.
2.8.2007 5:39pm
Colin (mail):
The distinction between criminal and civil penalties is not "nice," in either sense of the word. And Prigos, above, asserted that the case you're referring to was "overturned by the Saskatchewan Court of Appeal." Was he wrong?
2.8.2007 6:17pm