Volokh on Muslims and Civil Liberties

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.”

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