Around the Web

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.

Shiffrin on Progressive Preference for Speech Over Religion

Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve’s even as his politics and my own differ in various ways.

Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause–that is, its arguably indefensible modern scope. He writes:

Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.

Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).

It’s an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).

“We are not against modernity, but we are against westernization”

Earlier this month, Penguin Books India agreed to recall and destroy copies of a book by American scholar Wendy Doniger, The Hindus: An Alternative History. Penguin did so in order to settle a four-year old lawsuit by a Hindu activist group, Shiksha Bashao Andolan, alleging that publication violated Indian law, which forbids insulting the religious beliefs of a class of citizens. In a statement, Penguin maintained that it had an obligation “to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be.” Doniger concurred, stating that Indian law is “the true villain of this piece.”

The main complaint seems to be that Doniger’s book presents a hypersexualized, distorted version of Hinduism. Here’s Shiksha Bashao Andolan’s president, Dinanath Batra, in a Time magazine interview, describing what his group finds objectionable:

Doniger says [in the book] that when Sanskrit scriptures were written, Indian society favored open sexuality. The jacket of her book shows Lord Krishna sitting on the buttocks of nude women. She equates the shivlingam, worshipped all over India by millions, with sex and calls it an erect penis. She calls Gandhiji strange and says he used to sleep with young girls.

What I find most interesting in this controversy is the incomprehension each side has for the other. The activists, with Indian law on their side, think they are striking a blow for cultural and religious freedom. They are standing up to tactless outsiders who mock sacred things. Most Western observers, by contrast, are simultaneously repulsed and amused at the notion that people would find Doniger’s book off-putting and actually try to stop its publication. The activists must be rubes and obscurantists. The condescension comes through very clearly in the questions Time put to Batra, including the last one: “Don’t you worry that your objections might seem outdated in today’s modern world?” Batra’s answer is revealing, too: “We are not against modernity, but we are against westernization.”

Once again, we see the conflict between the values of WEIRD cultures–Western, Educated, Industrialized, Rich, and Democratic–and those of more traditional societies. WEIRD cultures stress individual expression and fulfillment; traditional cultures value authority, community, and sacredness. To someone from a WEIRD perspective, it’s impossible to believe that serious people could be morally outraged by Doniger’s book, or think destroying the book a proper response. By contrast, people embedded in a traditional Hindu culture find Doniger’s interpretation disgraceful and foreign–an insult that should not be borne.

Of course, cultures aren’t uniform. Some Indians have WEIRD values; some Westerners are traditionalists. Some well-known Indian writers objected to Batra’s lawsuit; here in the US, the Hindu American Foundation issued a statement basically endorsing Penguin’s decision. But, on the whole, the WEIRD/Traditionalist divide is a useful way to understand our world. It explains many current controversies, like blasphemy prosecutions in Pakistan, proposals to ban circumcision in Scandinavia, anti-homosexuality laws in Africa, and the dispute over Doniger’s book.

As I’ve written before, it seems to me that three possibilities exist. First, WEIRD values will come to dominate worldwide. WEIRD culture has many benefits, and America projects it around the world relentlessly, through movies, advertising, the Internet, and so on. Second, Western culture will become less WEIRD. This could happen, too, especially if large numbers of people from traditional societies immigrate to the West. Third, and most likely, WEIRD and non-WEIRD cultures will continue to face off against one another for the foreseeable future, with inevitable clashes and occasional compromises. Buckle your seat belts.

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  Continue reading

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).

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.

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