Posted on by JCPW

Cohen-Almagor on Religious, Hateful, and Racist Speech in Israel

Raphael Cohen-Almagor (University of Hull) has posted Religious, Hateful, and Racist Speech in Israel. The abstract follows.

This essay is a study in politics and law. The first section of the paper explains Israel’s vulnerability as a Jewish, multicultural democracy in a hostile region, with significant schisms that divide the nation. Given Israel’s tenuous conditions, this paper is set to observe how Israel has coped with destabilizing expressions that aim to increase the rifts in society and to promote hatred against the other, whoever the other might be. This essay is largely concerned with Israel’s policy on hate speech and racial expressions as they have come into expression by religious authorities, and in that sense this study supplements similar studies conducted in the past. Those expressions have stemmed from the ideologically motivated religious authorities against two groups of people: those who aimed to give away parts of Israel’s territory, and Palestinian Arabs.

The paper presents the State Attorney’s stance regarding extreme statements made in the context of the disengagement from Gaza. Following that presentation, the paper continues by addressing the issue of religious incitement by Jewish and Moslem sages. What is suggested about fighting bigotry emanating from Jewish religious teaching is true also for hatred emanating from Islam. The argument is made that the State cannot sit idly by while senior officials incite racism and undermine the State’s democratic values. Such officials should be discharged of all responsibilities. The State ought to weigh the costs of allowing hate speech, as well as the risks involved, and balance these against the costs and risks to democracy and free speech associated with censorship. Israel needs to protect its citizens, both Jewish and non-Jewish, as well as to protect itself as a Jewish democracy. In doing so, Israel should not unnecessarily infringe on free expression or create discriminatory situations. It is not a small feat to achieve both. A balance needs to be struck between competing social interests. Freedom of expression is important as is the protection of vulnerable minorities.

Posted on by Marc O. DeGirolami

Podcast on “First Amendment Institutions”

Paul Horwitz and I discuss his book in this podcast, the latest in the Federalist Society’s worthwhile series of conversations on new books.

Our written exchange is here.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part II

Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday.  Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel.  Here’s a news report on the argument.  A couple of highlights.

First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.”  To which CJ Traxler responded, “How would you characterize the Book of Revelation?”  Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive.  Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive?  I wouldn’t think so, but I’m not a free speech maven.  But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) — the contingency being their (dis-)confirmation on the appointed day.  We’re still waiting on Revelation.  On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]”

Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.”  But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.”  Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine.  From Book IV, Chapter 3 of the Confessions:

There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.

Looking forward to the panel’s decision.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part I

Apropos of Trollope and Ike, here’s a neat case — courtesy of CLR Forum friend and former guest Kevin Walsh — that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit.  It concerns one Psychic Sophie, a self-described “spiritual counselor” operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email.  She offered these services from a small office within a larger office complex which included licensed mental health professionals.

Read more

Posted on by Marc O. DeGirolami · 3 Comments

On the Texas Cheerleader Religious Banner Controversy

Here is the controversy:  Some cheerleaders at a Texas public school wish to display signs and banners with religious messages on them at high school football games (e.g., “If God is for us, who can be against us?”).  Nothing about the signs involves the public school, other than that the venue in which they are displayed is at a public school football game.  The public school superintendent banned the signs.  And a state court judge in Texas has issued a temporary injunction against the government from forbidding the cheerleaders from displaying their signs.  The injunction is here, but it says nothing about the merits.

And here is the New York Times story today: It doesn’t really discuss the law much but instead paints a sort of man-of-conscience-against-a-hostile-world picture of the superintendent, just as it did for a recent story in Rhode Island involving a student who opposed the display of some religious language on a sign in a public school.  I’m sure the superintendent in the Texas case is a very nice man who is just trying to do his job.  It’s probably too much to ask of the Times that it stop the irritating practice of painting American communities as villains.  They’re probably just composed of people who are doing their best to live according to their own lights of the good life, and in ways that at least one court believes the law permits.

It’s a shame that the Times story doesn’t discuss more about the law.  From what I understand (though I could be wrong) the issue was originally that legal counsel for the superintendent believed that the banners violated the Establishment Clause as interpreted by the Supreme Court in the Santa Fe case.  But at some point that defense to the lawsuit dropped out, and now both sides agree that the signs do not violate the Establishment Clause (I find this representation at p.5 of this motion by the Texas Attorney General to intervene in the case).  It seems that the issue now turns on whether the speech here is characterized as public or private speech.  But this is confusing to me, because Santa Fe involved exactly the issue of whether the speech was public or private — the majority and the dissent disagreed on that question.  The Court in Santa Fe held that the school-instituted two-step election process, in which a student vote about whether a message would be communicated was followed by another vote about who would deliver the message, was basically the government’s impermissibly majoritarian policy and therefore government speech.  Obviously the situation is different in this case, and it would require a significant extension of Santa Fe to cover the cheerleaders’ signs.  But I do not understand why, per the representation of the Texas AG, all sides agree that Santa Fe does not apply.  Perhaps readers can offer illumination.

UPDATE: Do see Paul Horwitz’s discussion of the case here.  Paul points out that the NY Times also has an editorial out today in which it  characterizes the cheerleaders’ actions as a violation of Santa Fe (as explained above, I do not think this is accurate if the facts are as reported), and official support for the cheerleaders’ actions as follows: “These officials are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one. “

Posted on by Mark Movsesian

Pussy Riot and WEIRD Values

Last week’s post about WEIRD values (that’s “Western, Educated, Industrialized, Rich, and Democratic”) drew a number of comments over at First Thoughts, where I cross-posted. Readers focused on the implications for the West’s relations with the Muslim world. It’s worth noting, though, that the clash is not limited to Muslim-majority societies. Most of the world is non-WEIRD. Events is Russia last week demonstrate what I mean.

By now, most readers are familiar with Pussy Riot, the feminist punk band that stormed the main altar of Moscow’s Christ the Savior Cathedral to protest collusion between the Russian Orthodox Church and President Vladimir Putin. Three members of the band were convicted of “hooliganism” and sentenced to two years in prison. Last week, authorities released one of the three on appeal, in response to evidence that she had not, in fact, participated in the cathedral protest. The other two band members continue to serve their sentences.

In the West, Pussy Riot has become a cause célèbre, with human rights groups protesting the authoritarianism in Putin’s Russia. This is not surprising. From a Western perspective, the band’s punishment seems unduly harsh. Yes, Pussy Riot insulted a place of worship – one with important, and sad, historical associations – but no one was harmed. At most, the members should have been fined for a misdemeanor and let go. Within Russia, however, support for Pussy Riot is remarkably low. Although some Russians believe the band members made a valid point about church corruption and have served enough time, the large majority of Russians apparently believes the sentences were appropriate, Read more

Posted on by Mark Movsesian

WEIRD Values

At a lawyers conference I attended recently, the conversation turned to “The Innocence of Muslims,” the offensive YouTube video that has sparked riots throughout the Muslim world. “Why do they react this way?” a partner at a major law firm asked, referring to Muslim societies. The idea that people would take such offense at an inept video, and blame American society in general rather than the individuals who produced the film, was incomprehensible to this American lawyer: “We would never react that way.” The other lawyers agreed.

This conversation came back to me this week as I read Jonathan Haidt’s very worthwhile new book, The Righteous Mind. Mostly, the book explores the different moral psychologies of American conservatives and liberals.  (Haidt argues that the differences are largely innate — “pre-wired,” he says — thus confirming Iolanthe’s famous observation that “every boy and every gal/ That’s born into the world alive/Is either a little Liberal /Or else a little Conservative!”). One chapter, though, compares American moral intuitions with those of other societies. America, Haidt says, has what psychologists call a WEIRD culture — Western, Educated, Industrialized, Rich, and Democratic. WEIRD cultures have a strong “ethic of autonomy”: they hold that “people are, first and foremost, autonomous individuals with wants, needs, and preferences” which, barring direct harm to others, should be fulfilled. In such cultures, as Jean Bethke Elshtain remarked at First Things’s annual Erasmus Lecture this week, “loyalty” principally means “being true to oneself.” The First Amendment reflects this ethic: it promotes the widest possible range of individual expression and advises offended listeners to avoid harm by turning away.

Largely through American influence, WEIRD values increasingly dominate international human rights discourse. This is ironic, because WEIRD cultures are global outliers — and America is the farthest outlier of all. Most of the world does not see autonomy as the most important value and does not privilege individual expression to the extent we do. Many cultures, Haidt says, have an Read more

Posted on by Mark Movsesian · 1 Comment

Offensive Speech in NYC

Living in New York City, one develops a taste for irony. This past week, residents were treated to an unusually good display. In remarks at the UN on Tuesday, President Barack Obama gave an eloquent defense of American free speech principles, which prohibit government from restricting religiously offensive speech as long as there is no threat of imminent violence. Government may state its own views, however, and President Obama roundly condemned, on behalf of the US Government, “The Innocence of Muslims,” that “crude and disgusting video” that has “sparked outrage throughout the Muslim world.” In a widely quoted passage, the President declared,

The future must not belong to those who slander the Prophet of Islam.  But to be credible, those who condemn that slander must also condemn the hate we see in the images of Jesus Christ that are desecrated, or churches that are destroyed, or the Holocaust that is denied.

Now, as it happens, at a swanky gallery near where President Obama was speaking, an exhibition of Andres Serrano’s Piss Christ, the infamous photograph of a crucifix submerged in a glass of urine, was under way. Neither President Obama nor anyone else in his administration, as far as I know, thought that credibility required them to condemn this particular example of religiously offensive speech. Why not? Because, of course, nobody was complaining about it, much less rioting. (That’s not quite  Read more

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Movsesian on Laws Prohibiting Religiously Offensive Speech

CLR Forum Director Mark Movsesian appeared this week on Voice of America’s “International Edition with Avi Arditti and Kate Woodsome” to discuss the regulation of religiously offensive speech in the United States, Europe, and around the world. Click on the player below to listen. 

Posted on by Mark Movsesian

DeGirolami on Hate Speech in America and France

Here’s an interview with CLR’s Marc DeGirolami in France-Amérique on the differences between the legal treatment of hate speech in France and the United States. Check it out (in French).