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 Continue reading

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.

Temperman on Extreme Speech

Jeroen Temperman (Erasmus University Rotterdam) has posted a new piece on SSRN, Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech. The abstact follows.

Within the European Convention system, judgments have supported legal restrictions on hate speech, but also on blasphemy or religious defamation. The universal human rights instruments, particularly the ICCPR, are increasingly geared towards eradicating hate speech (speech that threatens the rights and freedoms of others), whilst forms of extreme speech that fall short of that category are to be protected rather than countered by states. The Human Rights Committee’s recently adopted General Comment (No. 34) on freedom of expression, provides another strong indication that this is the envisaged way forward: repealing blasphemy and defamation bills, whilst simultaneously increasing the efforts to combat hate speech. This paper argues that it remains ever so important to continue taking stock of the legal justifications for restrictions that are suggested in this area and to scrutinize whether they are in fact sustainable from a human rights perspective –– not only on paper, but also in actual practice. The paper compares and contrasts the universal monitoring bodies’ approach to extreme speech with that of regional monitoring bodies, notably the European Court of Human Rights.

Norton on Using an Establishment Clause Analysis for Free Speech Claims

Helen L. Norton (University of Colorado School of Law) has posted The Equal Protection Implications of Government’s Hateful Speech. The abstract follows.

Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the equal protection clause? Government speech that communicates hostility or animus on the on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important behavior, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms potentially posed by such government expression. The recent emergence of the Court’s government speech doctrine — which to date has emphasized the value of government expression without yet fully addressing its potential costs — offers an important new opportunity to consider the situations in which government speech might offend equal protection values.
Continue reading

Facebook and Google Remove Religious Images in Response to Indian Lawsuits

Reuters reports that Facebook and Google this week removed certain religious images from their Indian websites in response to lawsuits making their way through the Indian courts. Since enactment of a law last year making companies responsible for material they post on their websites, Indian plaintiffs have sued Google and Facebook, as well as other internet companies like Microsoft and Yahoo!,  for displaying offensive images of Jesus Christ, the Prophet Muhammad, and Hindu gods and goddesses. In one case, an Indian judge warned that, “like China,” he would order sites blocked if companies did not “take steps to protect religious sensibilities.” Indian free speech advocates have decried the new law and the recent lawsuits, but supporters point to India’s history of sectarian conflict and argue that offensive religious images pose risks to public order.

Austrian Court Upholds Conviction for “Denigrating Religious Beliefs”

Eugene Volokh has a very interesting post about a recent Austrian case in which a woman was convicted of “denigrating religious beliefs” in connection with a series of lectures on Islam. Eugene puts the case in perspective by comparing it with other recent European blasphemy prosecutions and 19th century American analogues. Actually, I’m not sure that Austria was prosecuting the woman for “blasphemy,” which connotes insults to the majority religion of a state; the prosecution seems more to be about “hate speech” targeting the religion of a minority. The case is a good example of the differences between the American and European approaches to speech about religion, though, as Eugene suggests.

Kahn on the Trial of Geert Wilders

In 2009, a Dutch court decided to prosecute right-wing politician Geert Wilders for hate speech. Wilders had made several highly critical comments about Islam and had produced a film, Fitna, that explored Islamist violence in a way that some people allege incites hatred against Muslims.  In June 2011, the court acquitted Wilders of all charges. Robert Kahn (St. Thomas – Minnesota)  has posted a piece, The Acquittal of Geert Wilders and Dutch Political Culture, that discusses Wilder’s case and its implications for multiculturalism. The abstract follows. — MLM

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.

%d bloggers like this: