Posted on by Marc O. DeGirolami · 2 Comments

Rights and Judgment

This story reports that the Obama Administration has issued a statement questioning the “judgment” of the magazine Charlie Hebdo in publishing insulting pictures of the Prophet Mohammed (discussed by Mark immediately below).  The Administration — through its “porte-parole” Jay Carney — was careful to distinguish the issue of the magazine’s constitutional “right” to publish the pictures and its judgment in doing so because the Administration “know[s] that these images will be very shocking for many people,” and “might provoke violent reactions.”

The reaction of the Administration reminds me very much of the controversy over the construction of the so-called September 11 mosque in New York City.  I recall distinctly that the position of some at the time was that though there was and surely should be no legal barrier to the use of particular property vaguely proximate to the site of the September 11 attack on the World Trade Center, it would be unwise, or evince a lack of good judgment, for the rights-holders to exercise their rights.  I recall the cute statement, made somewhere by someone, that it is “not a question of rights, but a question of what is right.”  I also remember that the President came out at first quite strongly in support of the mosque and cultural center (as did Mayor Michael Bloomberg), but then backed off a bit when the issue was put not in terms of rights, but of judgment: ““I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there,” the President said. “I was commenting very specifically on the right people have that dates back to our founding. That’s what our country is about.” 

How about it readers?  Are the situations formally identical (with the exception that the President has commented negatively on the wisdom of publishing the cartoons, while he declined to do so with respect to the Ground Zero mosque)?  If so, are there nevertheless other salient differences between them?  Are there categorical differences, for example, between the wisdom of exercising a speech right and the wisdom of exercising the freedom of religion?

Posted on by Mark Movsesian · 1 Comment

Agent Provocateur

It’s getting hard to keep up with developments surrounding “The Innocence of Muslims,” the YouTube video that ridicules the Prophet Muhammad and has sparked violent protests throughout the Muslim world. On Tuesday, Egypt announced that it had issued arrest warrants for several Americans connected with the film’s production and distribution, including Florida Pastor Terry Jones, who promoted the film. Jones was last in the news for putting the Quran “on trial” and threatening to burn it. Egypt’s action followed Germany’s announcement that it would forbid Jones, who has been invited to speak by far-right political parties, from entering the county. The Interior Ministry argues that allowing the “hate preacher” in the country would upset public order. So that’s another country the pastor must cross off his vacation list.

Then, yesterday, the French satirical magazine, Charlie Hebdo, entered the fray over the film, running a series of cartoons mocking the Prophet. The French government, which had asked Charlie Hebdo not to run the cartoons, responded by announcing that it would close embassies in twenty countries this Friday as a precaution. The Foreign Minister, Laurent Fabuis, said the cartoons were “a provocation,” and called on “all” people — by “all,” Fabius presumably had in mind particularly Charlie Hebdo‘s editor, Stephane Charbonnier — “to behave responsibly.”

For his part, Chabonnier is unrepentant. Already under police guard as a result of an earlier episode in which his magazine ran a caricature of the Prophet, Charbonnier says he sees a double standard developing in France, according to which it is considered acceptable to mock some religions but not others. “We have the impression that it’s officially allowed for Charlie Hebdo to attack the Catholic far-right but we cannot poke fun at fundamental Islamists,” he explained. It’s an interesting point that other commentators, including in the US, as making, too. Charbonnier should be calling his lawyer. Unlike the US, France has laws that ban speech that insults a group because of its religion. In 2006, in fact, Charlie Hebdo was prosecuted when the newspaper  reprinted some of the infamous cartoons of the Prophet that had appeared in a Danish newspaper. In that case, Charlie Hebdo was acquitted on the ground that the cartoons insulted terrorists, not Muslims generally. It wouldn’t be surprising if Charlie Hebdo faced prosecution again now.

Posted on by Marc O. DeGirolami · 3 Comments

Confusion About the Freedom of Speech and Incitement to Violence

I’m having a hard time understanding the claim — if it is a claim, or perhaps it’s just the suggestion of a claim — by some in the media that the video, “The Innocence of Muslims” (discussed by my colleague Mark) is not protected by the freedom of speech.  But I’m not a speech scholar, and the byways of speech law are as byzantine as any in the law.

What is it about the video that would not warrant free speech protection?  I have not watched it, but I believe that the speech here relates to criticism — crude, ignorant, and thoughtless criticism, to be sure — of Islam, Muslim countries, and Muslim people.  I will also assume that it is offensive to Muslims. 

Offensiveness to particular constituencies, including religious constituencies, is not the test for speech protection.  How could it be?  One only has to read the newspaper to see offensive and ignorant commentary about religion and religious people produced all the time.  That speech is clearly protected, and nobody — certainly not the LA Times — would ever suggest otherwise. 

The claim in the LA Times piece seems to be that speech which is intended to incite violence is unprotected.  The author of the op-ed is relying on the exception set out in the Brandenburg case, which permits regulation of speech where (1) the violence or illegal activity is imminent; (2) the speaker intends to cause the violence or illegal activity; and (3) the speech is likely to cause the violence or illegal activity.  But I have questions about this. 

First, what is the evidence that the video’s makers actually did intend to incite violence, as opposed to intending to say something provocative?  In fact, I doubt that anybody intended to incite a violent mob to murder our diplomatic personnel in Libya, but before doing away with speech protections here, I’d like to see the evidence that they did.  Second, what is the evidence of “imminence”?  The best that the op-ed writer can come up with is that the video was published around September 11, and that “the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks.”  I had not thought that “imminence” is as context-dependent as this author suggests.  In the law of self-defense, imminent means imminent, as in right now, immediate, not two weeks later, or perhaps even later than that.  Third, I’ve always been curious about the third leg of the Brandenburg test.  Why should a greater likelihood that a particular constituency will rise up in violence in response to provocative speech mean that the speech itself is less deserving of protection than speech which targets a constituency which is not likely to react violently to the offense?  Does the third leg of the test not reward the sort of behavior that we have been witnessing?  Does it not stimulate similar behavior?  Perhaps a free speech expert can help me out.

Posted on by Mark Movsesian

Egypt Issues Arrest Warrants for American Filmmaker and Others

According to the AP, Egyptian prosecutors have issued arrest warrants for several American citizens connected with the production and distribution of the YouTube video, “The Innocence of Muslims,” that has sparked violent protests in that country and throughout the Muslim world.  Egypt charges the defendants — who include the video’s maker and publicist, assorted Coptic Orthodox Christians, and Florida pastor Terry Jones — with “harming national unity, insulting and publicly attacking Islam, and spreading false information.” Some of the charges carry the death penalty.

What happens now? Some reports indicate that Egypt has contacted Interpol, the  international police cooperation organization in Lyon, France, for help in executing the warrants. In a press release, however, Interpol says  it has  not received any such request and that, in any case, its Constitution forbids it from undertakings “of a political, military, religious or racial character.” The strong implication: don’t expect us to help. The US and Egypt have an extradition treaty that dates back to Ottoman times, but, according to this unofficial version on the web, the treaty doesn’t cover offenses of the sort Egypt alleges here. Anyway, it’s inconceivable that the State Department would assist Egypt any more than Interpol, or that American courts would ever allow these defendants to be transferred to Cairo. Observers expect Egypt will end up trying them in absentia.

Posted on by Mark Movsesian

Hate Speech and Foreign Relations

At Opinio Juris, my friend and former colleague Peter Spiro has an interesting post on recent events in Egypt and Libya. Peter argues that there is a foreign relations rationale for banning hate speech. In a world where obscure YouTube videos like “The Innocence of Muslims” can result in the murder of one of our ambassadors, he says, the US should consider banning such material. He notes that European countries have stricter limits on religious hate speech than we and still manage to have functioning democracies.

As I say, it’s an interesting post. Actually, though, this doesn’t seem a workable solution for the US, legally or politically. First, I don’t think Peter means “hate speech,” which typically connotes speech likely to incite violence against minorities. A ban on “hate speech” wouldn’t have applied to “The Innocence of Muslims,” which was not likely to incite violence against anyone, except perhaps the film’s producers.  I think the category Peter is looking for is “offensive” speech, specifically, speech that would offend listeners’ religious sensibilities. It’s true that European countries are more comfortable than the US with Read more

Posted on by Mark Movsesian · 1 Comment

Copycats

Here’s an interesting comparative law item. In a gesture of solidarity with Pussy Riot, the Russian punk band currently serving a two-year prison term for staging a “punk prayer” in Moscow’s Christ the Savior Cathedral, three masked protesters stormed Cologne Cathedral in Germany last Sunday during Mass. The protesters shouted “Free Pussy Riot” and threw leaflets at the worshipers until church guards escorted them outside. Authorities in Cologne now say they will prosecute the protesters for “disrupting the free practice of religion,” an offense with a three-year prison term under German law. “The right to demonstration cannot be set above the right to religious freedom and above the religious feelings of the congregation,” the dean of Cologne Cathedral remarked.

A couple of observations. First, as this episode demonstrates, one can’t simply dismiss the Pussy Riot trial as a symptom of dictatorship. Even in Western democracies, it is illegal to trespass on religious sites, and potential prison terms can be surprisingly harsh. To be sure, it’s unlikely the German protesters will actually serve three years; in the US, as I’ve explained, they probably wouldn’t serve time at all. And the German case differs from the Russian in that the German protesters actually interrupted a religious service. But the basic point is that trespassing on religious sites is a crime, even if one is trying to send a message about a great wrong.

Which leads to the second observation. What, exactly, was the message the German activists were sending? What was the point of disrupting Mass in Cologne Cathedral? Cologne Cathedral is not Russian Orthodox. It’s not even Orthodox. It’s Catholic. However bad the corruption in the Russian Orthodox Church, the Catholic Church bears no responsibility for the Pussy Riot prosecution. It’s not like the Vatican called for throwing Pussy Riot in prison. So, really, it makes no sense to disrupt Mass in a Catholic cathedral because of what the Russian Church hierarchy allegedly did to Pussy Riot. Unless, perhaps, the message is that traditional Christianity anywhere, in any form, should be attacked. 

Posted on by Mark Movsesian

Censoring the Internet in India

I wrote in February about India’s crackdown on religiously offensive speech on the internet. In response to lawsuits in Indian courts, Facebook and Google have removed images that allegedly cause offense to Hindus, Muslims, and other religious communities. In The Atlantic this week, Max Fisher writes that the censorship issue is again getting attention, with the US State Department calling on India to respect the “full freedom of the internet.” Fisher wonders, though, whether India doesn’t have reason to clamp down. A long-standing dispute between Hindus and Muslims in Assam has recently reignited, fueled by rumors on the internet that each side was planning to massacre the other. Eighty people have already been killed, and 300,000 displaced. Religious hate speech on  the internet hasn’t caused this crisis, of course, but it has contributed to it. What is the Indian government to do? Fisher writes:

Walter Russel Mead, writing on the ongoing crisis, called India’s long-running communal tensions “the powder keg in the basement.” With the already-dangerous risk of ethnic combustion heightened by a population with easy access to rumors and an apparent predisposition to believing them, maybe that powder keg justifies Indian censorship. Or maybe it doesn’t; free speech is its own public good and public right, and, in any case, censoring discussion of such sensitive national issues could make it more difficult for India to actually confront them. This is just one of the many difficult questions that Indian leaders will grapple with as hundreds of thousands of their citizens flee their homes, chased out by “a swirl of unfounded rumors.” I don’t envy them.

Posted on by Mark Movsesian

John O’Sullivan’s Defense of Pussy Riot

We try to give both sides of the story at CLR Forum, so here’s a link to thoughtful defense of the Russian feminist punk band Pussy Riot by National Review‘s John O’Sullivan. O’Sullivan writes that he initially had no sympathy for the members of the band, but that he has changed his mind on reading their in-court statements. In his view, the Pussy Riot protest has been misunderstood by critics as an anti-Christian act. (It’s a misunderstanding the band’s supporters apparently share: activists cut down a memorial cross in Kiev, and Madonna stomped on a cross at a recent concert, to express their solidarity). If you read the statements, O’Sullivan argues, Pussy Riot comes across as a group of sincere and thoughtful Christians who are protesting the corruption of the Orthodox Church and its subservience to Putin.

O’Sullivan’s defense is interesting, but I don’t really buy it. The members of Pussy Riot, who have been known to stage public orgies in museums, haven’t shown a lot of interest in Christianity before. The translations of the statements I’ve seen on Rod Dreher’s site throw in a lot of stuff besides Christianity and seem, well, adolescent in their insistence on the speakers’ authenticity and intellectual importance. (Anytime speakers compare themselves to Socrates drinking the hemlock, you’ve got to be a little skeptical).  Being juvenile is no reason to be in prison, of course; the authorities should have fined the members of Pussy Riot and let them go. It’s a stretch to see them as Christian martyrs, though.

Posted on by Mark Movsesian

Philip Jenkins on Why He Won’t Be Donating for Pussy Riot

Over at Real Clear Religion, Baylor historian Philip Jenkins has a powerful essay on the Pussy Riot trial and the Western media’s failure to take seriously the religious provocation the stunt represented:

Putin may be a thug, and Pussy Riot might be feminist warriors for human rights, but the particular act for which they faced trial is much more controversial than is commonly reported in the West. A good case can be made that it was a grievous act of religious hate crime, of a kind that would be roundly condemned if it happened in a country that the West happened to like.

Jenkins recounts the long history of Christian persecution under the Soviets, which involved intimidation and murder on a massive scale, often accompanied by anti-Christian agitprop in sacred places. Jenkins writes:

Russia’s new religious freedom is a very tender shoot, and the prospect of future turmoil has to agonize those believers who recall bygone horrors. These fears are all the more pressing when modern-day activists seem to reproduce exactly the blasphemous deeds of the past, and even in the precise places. When modern-day Orthodox look at Pussy Riot, they see the ghosts of Alexandra Kollontai and her militiamen, or the old Soviet League of Militant Godless. Are they wrong to do so? . . .

So no, I won’t be giving to any Pussy Riot support groups.

I’ve written before that Pussy Riot has been in prison for long enough; a two-year sentence for what they did seems very disproportionate.  I’d have fined them for trespassing and let them go. But it is striking that so few in the West see the other side of the story.

Posted on by Mark Movsesian · 2 Comments

Update: Pussy Riot Gets Two Years

An update on a story we’ve been following. A Russian court today convicted  three members of Pussy Riot, a punk band that stormed the altar of Moscow’s Christ the Saviour Cathedral last winter to perform a “punk prayer” to protest Prime Minister Vladimir Putin, of criminal hooliganism and sentenced them to two years in prison. By Western standards, it’s a harsh and disproportionate sentence. By way of comparison, when members of a group called ACT-UP disrupted a Mass at New York’s St. Patrick’s Cathedral in 1989, they received only misdemeanor convictions and no jail time. Similarly, in June, a New York court convicted Occupy Wall Street protesters of trespassing on property owned by Trinity Church; again, only misdemeanor convictions and no jail time.

But Russia is different. Before we get all sanctimonious about how much better we are in the West, though, it’s worth reflecting on a couple of things. First, as I’ve written before, the Cathedral of Christ the Saviour has a sad history. The Communists dynamited the first version of the cathedral as part of an anti-Christian campaign in the 1930s, and Christians remain very sensitive about it. Notwithstanding the politicization and corruption in the Russian Orthodox Read more