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Volokh on Muslims and Civil Liberties

Eugene Volokh is one of the top First Amendment scholars in the country and he was asked to testify at a hearing for the U.S. Commission on Civil Rights about the civil liberties environment for Muslims and Arabs in America after 9/11. He has been a strong advocate for the equal rights of Muslims, strongly criticizing those who tried to stop the Park 51 mosque, for example. But he also points out that we have had problems with attempts to censor anti-Muslim speech as well. Here is the text of his testimony:

Dear Members of the Commission:

I entirely agree that the religious freedom rights and free speech rights of Muslim Americans, as well as all other Americans, should be protected. I have publicly spoken out, for instance, in favor of applying religious accommodation law to Muslim employees as well as to others. I have condemned attempts to criticize Muslim office-holders for taking their oath of office on a Koran. I have spoken in favor of extending mosques the same property rights extended to other property owners, and against attempts to exclude mosques from particular areas. And I agree that the government should take steps to make Muslim Americans, like Americans of all religions, feel welcome in America.

At the same time, attempts to make adherents of minority religions feel welcome should not end up suppressing the free speech rights of others who seek to criticize those religions. Islam, like other belief systems — Catholicism, Scientology, libertarianism, feminism, or what have you — merits evaluation and, at times, criticism. And under the First Amendment, even intemperate and wrong-headed criticism is fully constitutionally protected. Yet unfortunately attempts at suppression of criticism of Islam have been distressingly frequent.

Universities: Thus, for instance, San Francisco State University’s College Republicans held an anti-terrorism rally at which they stepped on homemade replicas of Hamas and Hezbollah flags, which contain the word “Allah” in Arabic. The students were apparently unaware of the flags’ Arabic content, but the students’ symbolic expression of contempt for Hamas and Hezbollah would be constitutionally protected even if they knew what the flags contained — Hamas and Hezbollah are not immunized from such expressions by the religious content of their flags.

Yet offended students filed charges of “attempts to incite violence and create a hostile environment” and “actions of incivility,” prompting a university “investigation” that lasted five months. The university defended the process, noting that the complaint was not “about the desecration of the flag,” but about “the desecration of Allah.” It took a federal lawsuit and an injunction by a federal judge to strike down the unconstitutional speech code under which these complaints were filed.

Likewise, at Century College, a public school in Minnesota, administrators ordered a professor to take down copies of the Mohammed cartoons that she had posted on a bulletin board outside her office. At Purdue University, Muslim students claimed that a professor’s statements criticizing Muslims on his Facebook page were “discrimination” and “harassment,” and called for his firing; it took several months for the university investigation to absolve the professor of these charges.

 

At UC Santa Barbara, the student government refused to let the College Republicans participate in a program that funds student group events, apparently because the Republicans’ proposed event was a speech by the noted conservative and critic of radical Islam, David Horowitz. This refusal likely violated the First Amendment, because the Supreme Court has held that student government groups may not discriminate based on viewpoint in such funding decisions.

At UC Berkeley, the student government likewise tried to limit the student newspaper’s funding based on its viewpoint: When the newspaper ran a cartoon, not long after the 9/11 attacks, showing “two turbaned terrorists ready to ‘meet Allah and be fed grapes,’ but finding themselves instead burning in hell,” the student government demanded that the newspaper apologize; when the newspaper refused, the student government tried to raise the newspaper’s rent, with the coauthor of the bill arguing that the cartoon “perpetuated the kind of ignorance that would lead to harassment.” And at San Diego State University, some Muslim students seized and destroyed several thousand copies of the student newspaper because they “depicted Iraqi President Saddam Hussein and Palestinian leader Yasser Arafat as camels with President Bush in the middle, thinking, ‘Definitely time for a regime change.’”

Likewise, at NYU, Muslim groups urged the school to ban the display of the Mohammed cartoons at a student group event held to discuss those cartoons. NYU ultimately prohibited the student group from displaying the cartoons, unless the group limited attendance to students only — an attendance restriction that the group was understandably unwilling to impose, given that it, like many groups, was trying to reach out to the community at large.

Tufts University held that a student newspaper “harassed Muslim students at Tufts, and created a hostile environment for them” by publishing a critical parody of Islamic Awareness Week. A University of Chicago student faced university discipline for posting a cartoon of Mohammed, with the caption “Mo’ Mohammed, Mo’ Problems,” referring to the then-existing controversy about the Mohammed cartoons, though the investigation was stopped when the student apologized for his speech.

The NYU, Tufts, and Chicago examples occurred at private universities, which are not themselves bound by the First Amendment. But the incidents still involved troubling violations of academic freedom principles; and, as the preceding paragraphs suggested, public universities have imposed similar restraints.

Moreover, the equation of anti-Muslim speech — including speech in a newspaper — with “harass[ment]” and creation of a “hostile environment” suggests that such speech must, by law, be restricted (since religious harassment and creation of a religiously hostile environment in education is prohibited by state antidiscrimination statutes). Protecting free speech requires a rejection of the arguments that universities such as Tufts have endorsed.

Off-the-Job Speech by Government Employees: Attempts to restrict anti-Muslim speech are not limited to universities. A New Jersey public transit employee was fired for his off-the-job burning of a Koran; it took an ACLU lawsuit for the employee to get his job back, with back pay and a $25,000 settlement.

Speech in Public Places: Likewise, Terry Jones, the anti-Muslim minister, was barred by a court from organizing a demonstration outside a Dearborn, Michigan mosque. Some time later, Dearborn also refused to issue Jones a demonstration permit unless he indemnified the city against “any and all claims, liabilities, or lawsuits, including legal costs and reasonable attorney fees, resulting from their activities on the City of Dearborn property.” A federal court held this unconstitutional, because “permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech,” and because permit recipients cannot be required “to assume legal and financial responsibility even for those activities at the event that are outside of the permittee’s control, including activities of the City.”

Also in Dearborn, Christian missionaries were prosecuted for allegedly inciting a hostile crowd by “proselytizing to Muslims at the Dearborn Arab International Festival.” And Dearborn set up rules that banned leafleting on the sidewalks near the Arab International Festival; Christian proselytizers had to sue to have those rules set aside.

In New Jersey, an atheist marcher in a Halloween parade dressed up as a “Zombie Mohammed,” shouted “I am the prophet Mohammed, zombie from the dead,” and apparently carried a sign that said “Muhammed of Islam” on one side and “only Muhammed can rape America” on the other. (A fellow marcher had dressed up as a “Zombie Pope” who “wants your boys,” apparently as a reference to the Catholic Church’s child sexual abuse scandals.) The marcher was then attacked, apparently by a man who was upset by the sign; the police concluded that the guilty party was Talaag Elbayomy, and he was prosecuted.

But the trial judge acquitted Elbayomy for lack of evidence, in the process berating the victim of the attack for his speech:

Then what you have done is you have completely trashed [Muslim observers’] essence, their being. They find it very, very, very, offensive. . . . I find it offensive. I find what’s on the other side of this [sign] very offensive. But you have that right, but you’re way outside your bounds of first amendment rights.”

This understandably made those who are critical of Islam concerned that they would not be legally protected against attacks, and the Pennsylvania Judicial Conduct Board ultimately formally rebuked the judge.

Speech in Ads on Government Property: In New York and D.C., transit agencies — which, under the Supreme Court’s precedents, may not discriminate based on viewpoint in selecting ads — refused to run an ad saying, “In any war between the civilized man and the savage, support the civilized man. / Support Israel / Defeat Jihad.”

The agencies took the view that this ad labeled all Muslims as “savages,” a view that I think is incorrect: Israel is not in a “war” with all Muslims, but only with terrorists who engage in what most American observers would view as “jihad,” which is to say armed “holy war” against Israelis, including against Israeli civilians. Such attacks are indeed “savage,” in the same sense that Secretary of State Clinton described the Libyan consulate attackers — who likely saw themselves as indeed waging “jihad,” though against America rather than Israel — as a “small and savage group.” But even if the ad was generally seen as condemning all Muslims (something that I certainly would not endorse), the exclusion of the ad was a First Amendment violation, as two federal district courts ultimately held.

Proposals to Criminalize Speech: Some legal commentators have argued for even broader restrictions. In the wake of the “Innocence of Muslims” anti-Islam video, Prof. Eric Posner of the University of Chicago, Prof. Noah Feldman of Harvard, Prof. Peter Spiro of Hofstra, and the Carnegie Endowment’s Sarah Chayes, former special assistant to the chairman of the Joint Chiefs of Staff, all argued that such speech should be criminalizable. (These suggestions were all made during the weeks when many believed that the murders of our Ambassador to Libya and three other Americans developed from protests against the video; it is now known that the murders were instead preplanned terrorist attacks.) The rationale, which is that the speech could lead to murderous attacks on American interests by those offended by the speech, is formally religion-neutral. But given the events of the past decades (at least since then the riots and murders triggered by disapproval of the Satanic Verses), it’s clear that the speech suppressed under such proposals would be almost entirely speech that is offensive to Muslim extremists.

Now some of these actions have been motivated by a concern about protecting Muslims from offense, and others by a concern about violent reactions by Muslim extremists. But, either way, we are seeing attempts to restrict the First Amendment rights of those who want to express views critical of Islam and of Muslims.

Whether these attempts are motivated by respect for peaceful Muslims or fear of violent extremist Muslims does not matter. Just as the government must never suppress Muslim speech and religious practice on the grounds that such speech and religious practice might lead to violent retaliation from a few bigoted extremists, so it must never suppress anti-Islam speech on the grounds that such speech might lead to similar violent retaliation.

Implications: As I said at the outset, I firmly support the free speech, religious freedom, and property rights of Muslims. My concern is simply that all speakers and religious observers be protected, whether they are Muslim or non-Muslim, or pro-Islam or anti-Islam. Nor does this need to be difficult: The government should tell Muslims (as it tells other groups), “We respect you and your rights, and we will defend you and your rights from violence and government oppression, but if you find certain kinds of speech offensive you should respond with speech of your own; we cannot respond by trying to suppress such speech.”

But the government ought not try to define political and religious speech as “discrimination” or “harassment,” and then suppress it in the name of civil rights. Nor should the government conclude that the speech is stripped of protection because it is supposedly constitutes “hate speech”; the Supreme Court’s precedents solidly reject the view that there is a “hate speech” exception to the First Amendment. Nor should it surrender to the threat of violence, a course of action that only encourages more such threats in the future. Instead, the government should protect the civil rights of all, regardless of their religion or ideology.

Some foreign countries, to be sure, do indeed seem to prohibit speech that is perceived as blasphemy or undue criticism of religion — not just Islam but also, for instance, Christianity: Consider, just over the last two years, foreign incidents involving Jesus Christ Superstar, a parody of the venerated Greek Orthodox monk Elder Paisios, mockery of the Bible, and a painting of Jesus with a Mickey Mouse head. But in America, such speech is of course fully protected against government suppression. That must remain so, whatever religion is targeted.

Please let me know if I can elaborate further on these statements.

Sincerely Yours,

Eugene Volokh

I think this is a very important issue. I have hammered those, almost entirely on the right, who have exhibited the most appalling Islamophobia. Pam Geller, David Yerushalmi, Robert Spencer, David Horowitz, Frank Gaffney, the American Center for Law and Justice, Bryan Fischer and others have all argued that we should violate the rights of Muslims by doing things like banning Muslim immigration or preventing the building of new mosques. They are not just wrong, they are flagrantly in opposition to the very liberty they hypocritically claim to be protecting.

At the same time, I have also been strongly critical of blasphemy laws and attempts to ban the defamation of religion, and of many of the attempts Volokh discusses above that would censor those who criticize Islam or Muslims, even if those criticisms are sometimes wrong. Because it doesn’t matter to whether these attempts to violate the rights of individuals are aimed at Muslims (or Christians, or atheists, etc) or coming from them. What matters to me is not the viewpoint being offered or censored, it is the right to express those viewpoints — even when I strongly disagree with the content of the message.

Comments

  1. Trebuchet says

    I’m glad to see this post. Ken at Popehat (www.popehat.com) has been having conniptions about the abridgement of free speech in the UK, particularly the Mohammed Pineapple incident at Reading University. While I don’t disagree with him at all on the issue, I do disagree with the implication that this is somehow unique to the UK, and have attempted to point that out. I’ll have to see if I can post a link over there.

  2. Nick Gotts (formerly KG) says

    These suggestions were all made during the weeks when many believed that the murders of our Ambassador to Libya and three other Americans developed from protests against the video; it is now known that the murders were instead preplanned terrorist attacks.

    And of course the lives of the Pakistani police officers who died defending American property from mobs infuriated by the video, weren’t worth shit.

  3. criticaldragon1177 says

    Ed Brayton,

    Eugene Volokh is such an excellent writer, and so are you. I agree with everything both of you wrote.

  4. footface says

    Sure, but the caption for the cartoon should have been Mo’ hammed, mo’ problems.

    (“Mo’ Mohammed, Mo’ Problems”? That’s terrible.)

  5. F says

    Strange possible implication: Should we be able to run an “ad” on a bus containing, e.g., the word “fuck”? Or racist or sexist speech, containing or not containing words such as “bitch” or “nigger”? (Wow, I have an extraordinarily difficult time typing that word.)

    I’m a bit leery of the Israel/Palestine thing. Should the ad be allowed to run? Sure. I don’t much buy into the analysis/explanation of the ad, though. I think is says exactly what the agencies’ claimed it did. Without probing the original intent, I’ll still conclude this as Israel is hardly any less savage than its neighbors. (Not all individual Israelis or Islamic individuals of Palestine or neighboring countries are savages, of course. Some are, and most all governments certainly are.)

  6. Pen says

    Volokh’s position, like Ed’s, is eminently respectable, because consistent. My issue has always been whether speech, especially threatening or abusive, can have consequences that are intolerable and uncontrollable by the people who are harmed by it.

  7. says

    The students were apparently unaware of the flags’ Arabic content…

    That’s probably because they’re morons, and didn’t even have enough curiosity to ask anyone what the Arabic script actually said.

    Likewise, at Century College, a public school in Minnesota, administrators ordered a professor to take down copies of the Mohammed cartoons that she had posted on a bulletin board outside her office.

    And they were absolutely right to do so: college property is NOT a place where individual employees have a right to post their own opinions in the faces of a captive audience; and the owners of said property have every right to regulate what sort of art, decoration, information, etc. are displayed on their turf. That’s not a constitutional issue.

    And why the fuck are we still bothering with cartoons anyway? If any of these people gave a shit about valid and timely criticism of Islam, they wouldn’t be wasting time with juvenile distractions.

    At UC Berkeley, the student government likewise tried to limit the student newspaper’s funding based on its viewpoint: When the newspaper ran a cartoon, not long after the 9/11 attacks, showing “two turbaned terrorists ready to ‘meet Allah and be fed grapes,’ but finding themselves instead burning in hell,” the student government demanded that the newspaper apologize…

    Well, yeah, when a newspaper prints something that stupid and tasteless, they SHOULD be made to apologize. “Freedom of speech” does not mean “freedom from consequences.”

    In New York and D.C., transit agencies — which, under the Supreme Court’s precedents, may not discriminate based on viewpoint in selecting ads — refused to run an ad saying, “In any war between the civilized man and the savage, support the civilized man. / Support Israel / Defeat Jihad.”

    Is he actually saying that public agencies are REQUIRED to allow blatantly racist ads in places where people are both entitled and required to go? How about anti-black posters in an office where people (many of them black) are required to go to apply for government aid? Is that okay too?

    Volokh is indiscriminately lumping cases together that are NOT similar. Either he doesn’t know what he’s talking about, or he doesn’t care. I’m all in favor of free speech, but we don’t need the kind of free-speech absolutism that mindlessly ignores all other rights. There’s more than one amendment in the Bill of Rights, remember?

    Volokh’s position, like Ed’s, is eminently respectable, because consistent.

    And that’s how simplemindedness gets portrayed as a virtue. Who else brags about being “consistent?” Every stupid hateful ideologue who cares more about his easy worldview than real people in a complex world. “Consistency” is not “respectable” when it refuses to acknowledge a complex reality. If a Nazi wants his Jewish friends killed along with all other Jews, does that make him “respectable because consistent?”

  8. says

    The government should tell Muslims (as it tells other groups), “We respect you and your rights, and we will defend you and your rights from violence and government oppression, but if you find certain kinds of speech offensive you should respond with speech of your own; we cannot respond by trying to suppress such speech.”

    Yeah, and if black people can’t go out in public without having onscenities and racial epithets shouted in their faces, they should respond with speech of their own, and not expect anyone in authority to impose any spirit-crushing restrictions on public behavior, right?

    I am fucking tired of simpleminded libertarians using the “free speech” dogwhistle to justify inflicting ever cruder expressions of ugly hatred into our public spaces and discourse. If Volokh can’t understand how blatantly he’s being played by bigoted attention-whores like Terry Jones, then he doesn’t deserve to have his praises sung in grownup forums like this.

  9. says

    At UC Santa Barbara, the student government refused to let the College Republicans participate in a program that funds student group events, apparently because the Republicans’ proposed event was a speech by the noted conservative and critic of radical Islam, David Horowitz.

    Horowitz is “noted” for being a fucking idiot.Apart from “free speech” issues, Horowitz is simply not fit to talk about anything in an academic setting. If the College Republicans can’t find a better speaker than Horowitz, then they got nothing.

    And if Volokh actually thinks that Horowitz has any sort of authority as a “noted conservative,” then it’s time to re-evaluate Volokh’s “First Amendment scholar” credentials.

  10. criticaldragon1177 says

    #9 Raging Bee,

    We didn’t outlaw racist hate speech and we still got rid of all of our segregation laws, and now its legal for people of two different “races” to marry in all fifty states. Those battle were all one without outlawing the speech of people who support segregation or laws outlawing marriage between the “races.”

    Also the gay rights movement has made tremendous strides without laws banning homophobic speech.

    Banning hate speech is unnecessary and counter productive. For one thing it will serve to further convince the bigots that they’re correct, and it won’t make the problem go away. Not to mention that if the state can ban bigoted forms of speech, whats to stop them from banning other types of speech that they don’t like, especially legitimate criticism of the state? Its a dangerous road that you’re suggesting we head down.

    Volokh isn’t being played by people like Terry Jones. I don’t think he cares what they think. However, he understands that if the government can take away his right to speak his mind, they can take away everyone’s right to speak their minds.

  11. says

    Who said anything about outlawing hate speech? I’m talking about the kind of reasonable time-and-place restrictions that have existed, with little or no controversy, for decades, if not longer. Did you even read any of this before commenting?

    Volokh isn’t being played by people like Terry Jones.

    Yes, he is: the bigoted scumbags spout whatever vile hateful crap they can pull out of their asses, then play the victims of tyrannical repression when people get pissed at them…and people like Volokh just mindlessly jump to the “free speech”/”I’m a victim” dogwhistle, and give the bigots unlimited free publicity, helping them to monopolize attention, keep the public discourse down to their level, and brand their more decent critics as hateful tyrants whenever they respond to the hateful feedback-loops.

    Just because you automatically jump up in response to canned “free speech” talking-points, doesn’t mean you’re actually doing anything to protect free speech.

  12. criticaldragon1177 says

    #12 Raging Bee

    I have to disagree with you, and yes I did read your comments before I wrote mine.

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