Posted on by Marc O. DeGirolami

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).

Posted on by Mark Movsesian

“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.

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

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).

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 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

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

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.

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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.
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Posted on by Mark Movsesian

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.