Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Abiding Place Ministries v. Newsom, a California federal district court allowed a church to move ahead with its Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against San Diego County for enforcing Covid restrictions against public gatherings. However, the court held that the county’s public health officer had qualified immunity against damage claims because there was “no clear precedent” in 2020 that would have put the officer on notice that such restrictions were “clearly and definitively unconstitutional.”
  • An ex-deputy sheriff filed a lawsuit in a Washington federal district court alleging that Chelan County Sheriff’s Office employees pressured him to join the “‘alt-right’ militant” Grace City Church and to attend its twelve-week marriage counseling program. The complaint in Shepard v. Chelan County alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause.
  • Three anti-abortion protesters filed suit against the National Archives after its security officers required them to cover their pro-life t-shirts and remove pro-life buttons and hats while they were visiting the museum. The suit, Tamara R. v. National Archives and Records Administration, filed in the D.C. federal district court, was settled and a consent decree was signed which enjoined the National Archives from prohibiting visitors from wearing attire that displays religious or political speech.
  • In Grullon v. City of New York, a New York trial court held that the New York Police Department was arbitrary and capricious in its denial of a police officer’s religious objections to the Department’s Covid vaccine. The court determined that the police officer is entitled to employment with a reasonable accommodation of weekly Covid testing.
  • In New Brunswick v. His Tabernacle Family Church Inc., a trial court in New Brunswick, Canada refused to hold a church in contempt for a violation of Covid restrictions, stating that it was not unequivocally clear that the church knew it was in violation of a previous consent decree. After signing the consent decree, the church had moved its services to a commercial tent in order to avoid restrictions on gatherings in “public indoor spaces” but once the weather became colder, the church lowered the sides of the tent, which the Province contended created an enclosed space.
  • In Volokh v. James, a New York federal district court issued a preliminary injunction barring enforcement of New York’s Hateful Conduct Law against social media platforms. The court found that the social media platforms were likely to succeed in both their facial and “as applied” free speech challenges because the law both compelled “social media networks to speak about the contours of hate speech” and it chilled “the constitutionally protected speech of social media users”, without articulating a compelling governmental interest.

Pin on Hate Speech on the Web

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Andrea Pin (Padua) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind.  On behalf of the future, I ask you of the past to leave us alone . . . You claim there are problems among us that you need to solve.  You use this claim as an excuse to invade our precincts.  Many of these problems don’t exist.  Where there are real conflicts, where there are wrongs, we will identify them and address them by our means.  We are forming our own Social Contract . . . We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity . . . Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”

This is an excerpt from A Declaration of Independence of the Cyberspace.  The visionary thinker John P. Barlow proclaimed it in 1996 in Davos, Switzerland – the Sinai of globalization.  Barlow’s pride for what the cyberworld would become in the future was largely misplaced.  As many soon acknowledged, Barlow’s prophecy, that from online anarchy would almost spontaneously rise an order based on freedom, was wrong.  The cyberworld, after all, is just as much a part of our world as we are a part of it. 

Philosopher Luciano Floridi suggested we now live an onlife existence, in flux between the physical and virtual world.  Cyberspace cannot claim an independent life any more than we can claim our independence from it.  Our reputation, social relations, and political sphere take shape in an environment where cyberspace occupies a special place.  AI technologies affect how we perceive ourselves and others.

The issue is whether there is a sufficient public philosophy – or at least an intellectual framework within which our onlife sustains itself. As a recent book noted, 

“The medieval world had its imago dei, its feudal agrarian patterns, its reverence for the crown, and its orientation toward the soaring heights of the cathedral spire.  The age of reason had its cogito ergo sumand its quest for new horizons–and, with it, new assertions of agency within both individual and societal notions of destiny.  The age of AI has yet to define its organizing principles, its moral concepts, or its sense of aspirations and limitations.”[1]

Read more

Madera on Religious Hate Speech in Europe

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Adelaide Madera (University of Messina) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

In modern multicultural societies, various groups claim visibility in the public space and an equal opportunity to manifest their views, values, and convictions, even of a religious nature. In Europe, since the release of Salman Rushdie’s Satanic Verses, further events, such as the Danish cartoons controversy and the Charlie Hebdo killings, have given rise to increasing skepticism and prejudice against religious minorities and emphasized the risk of a clash between religious freedom and freedom of expression. The crucial questions are whether and to what degree freedom of expression can be subject to restrictions to protect the religious feelings of the faithful and what are frontiers of freedom of expression. Hate speech could be entangled with freedom of religious expression, which could degenerate into a dangerous religious hate speech, aimed at offending those who do not share analogous convictions. However, the difficulty of defining hate speech has given rise to a proliferation of claims of hate speech. The risk is the rise of a culture of offence where everyone can claim a right not to be offended.

Indeed, the construction of a hierarchy between the two liberties concerned would provoke a constitutional conundrum as both concern fundamental rights. So a careful case-by-case balance is required, which takes into careful consideration all the circumstances of the case. Thus, not only should the content of the message be assessed, but also the expressive waysused. Furthermore, who speaks and who the audience is can make a relevant difference.

The search for such a balance acts as a stress test for domestic legal frameworks and emphasizes their inadequacy. At the moment, the notion of hate speech is extremely fluid in Europe, due to the lack of a uniform legislative approach. Although in many European countries there is a progressive dismantling of traditional blasphemy laws, which were based on a privileged link between the State and the predominant religion, various States are experiencing some difficulties abandoning regressive patterns aimed at highly protecting religion—preventing an offence against divinity—and moving toward models of protection of religious adherents (hate speech).

In Recommendation 1805 (2007), the European Parliamentary Assembly urged national law and practice to “permit open debate on matters relating to religion and beliefs” and not “privilege a particular religion in this respect, which would be incompatible with Articles 10 and 14 of the Convention,” and to “penalise statements that call for a person or a group of persons to be subjected to hatred, discrimination or violence on the grounds of their religion as on any other grounds.” Finally, a decriminalization of blasphemy is solicited. Despite these guidelines, states have struck disparate balances between free speech and freedom of religion, due to their various historical, political, and social background, exacerbating the political debate and giving rise to litigation.

Read more

A Writeup on This Month’s Conference in Rome

Here’s a writeup (with photos!) on our conference this month in Rome, co-hosted with LUMSA University, on liberalism, religious exemptions, and hate speech regulations. We’ll post papers from the conference in due course. Meanwhile, thanks to the participants: keynoters Cesare Mirabile and Chantal Delsol, and Professors Stephanie Barclay (Notre Dame); Paolo Cavana (LUMSA); Gayane Davidyan (Lomonosov); Richard Ekins (Oxford); Monica Lugato (LUMSA); Adelaide Madera (Messina); Javier Martínez-Torrón (Complutense); Marco Olivetti (LUMSA); Andrea Pin (Padua); Jeffrey Pojanowski (Notre Dame); Angelo Rinella (LUMSA); Steven Smith (San Diego); and Kevin Walsh (Catholic University of America).

Next Month in Rome: “Liberalism’s Limits”

Next month in Rome, we’ll celebrate 10 years of cooperation with our colleagues at Universita LUMSA with the latest in our conference series on comparative law and religion: “Liberalism’s Limits: Religious Exemption and Hate Speech.” (Hard to believe we’ve been doing this for 10 years)! The conference description is below and details are here: If you’re in Rome, please stop by and say hello!

Liberal democracies historically have prized autonomy and freedom as fundamental political commitments. In doing so, they also have emphasized the individual’s freedom of religion and freedom of speech as sitting at the core of their political systems. Yet in religious exemption — the right of individuals to receive an accommodation from complying with generally applicable law on the basis of religious scruple — and in what some in these polities call “hate speech” – speech conveying deeply insulting, vilifying, discriminatory views against a target group – liberal regimes face serious challenges to their own core principles. This conference will examine the problems posed by these issues for the continuing viability of liberalism in Western democracies.

Around the Web

Here are some important law-and-religion news stories from around the web:

Legal Spirits Episode 008: Religious Hate Speech (Part II)

In this second episode of a two-part podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss the private dimension of the control of “religious hate speech.” What, if anything, can public authorities do to intervene in the private arena? They focus on speech on private university campuses and discuss two basic constitutional rules: first, the rule governing the freedom of speech and associational freedom protecting private universities from government regulation; and second, the doctrine of “unconstitutional conditions” that affects the way in which the government can condition the granting of money dependent upon private universities’ compliance with government policies and interests. They also consider the social and cultural effects of the existing legal framework, discussing along the way some of the recent controversies on campuses involving disinvitations and exclusions of certain points of view and perspectives because of their allegedly “hateful” qualities. Listen in!

Legal Spirits Episode 007: Religious Hate Speech (Part 1)

In this first episode of a two-part podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss government regulation of “religious hate speech.” They break down the concept into three categories–speech that denigrates religion as such; speech that threatens imminent violence against believers; and speech that insults or denigrates believers on the basis of religion–and explain how our law currently addresses each of them. They explore the possibility that American courts will abandon their traditional hostility to hate-speech regulation and the line-drawing problems that would follow. Listen in!

Around the Web

Here are some important law-and-religion news stories from around the web:

Gordon, “Atrocity Speech Law”

In May, Oxford University Press will release Atrocity Speech Law: Foundation, Fragmentation, Fruition by Gregory S. Gordon (Chinese University of Hong Kong). The publisher’s description follows:

Atrocity Speech Law.pngHate speech is widely considered a precondition for mass atrocity. Since the rise of international criminal tribunals after World War II and the development of international criminal law, defendants have been prosecuted for individual speech acts connected to gross human rights violations under charges that have coalesced into direct and public incitement to commit genocide; persecution as a crime against humanity; and instigation. The resulting jurisprudence has been fragmented and confused, and existing scholarship has been focused on particular tribunals or situations. The splintered rulings give inadequate notice to would-be hate speakers as to what speech is prohibited, which weakens prevention efforts and leads to inconsistent results. This is especially problematic considering ongoing atrocity speech prosecutions across the International Criminal Tribunal for Rwanda.

This book is the first comprehensive study of the international law encompassing hate speech. Prof. Gordon provides a broad analysis of the entire jurisprudential output related to speech and gross human rights violations for courts, government officials, and scholars. The book is organized into three parts. The first part covers the foundation: a brief history of atrocity speech and the modern treatment of hate speech in international human rights treaties and judgments under international criminal tribunals. The second part focuses on fragmentation: detailing the inconsistent application of the charges and previous prosecutions, including certain categories of inflammatory speech and a growing doctrinal rift between the ICTR and ICTY. The last part covers fruition: recommendations on how the law should be developed going forward, with proposals to fix the problems with individual speech offenses to coalesce into three categories of offense: incitement, speech-abetting, and instigation.