You're the Judge

The Limits of Freedom of Speech

Drawing on the reading and your own considered intuitions and good judgment, argue for or againt making it "a crime" to say, write, depict and/or publish anything that is "abusive or insulting," "derogatory or demeaning" to a religious group.

Think of the arguments that might be made against your arguments, and respond to them.

In defending your position, offer what you believe are the most principled arguments you can make.

In thinking of objections to your opinion, think of the best possible objections that someone on the other side might come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest rather than at its weakest point, that can only help to strengthen your own opinion and make it that much more persuasive.

In the course of bringing what you believe is the best defense for your own position explicitly to light, provide the clearest expression of "the harm principle" that best supports your position as well as makes the best sense of your reasoning, think of some other way of construing "harm" and "the harm principle" that supports and encourages a different line of reasoning other than your own, and respond to it.

Papers should be six to seven (6-7) pages in length and double-spaced. Pages should be numbered.

Papers are now due on Wednesday, March 29th, in class.

"Free Speech and Its Limits"

Preamble: John Stuart Mill provided in On Liberty what is sometimes described as "the classic liberal answer" to the question: when and under what circumstances may a presumption in favor of the free expression of opinion be limited. He framed the issue clearly and simply: "the only purpose," he wrote in 1859, "for which power may be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." But even though Mill's "harm principle" sounds "simple" in general, in the abstract, it is far from "simple" in its application in practice. Under what conditions may this principle be overridden? What reasons, what public interests and/or public goods might possibly justify restrictions to the free expression of opinion, a category of actions subsumed under Mill's harm principle?

With this brief preamble in mind, consider the following:

. . . You could start the story in 1989, with the fatwa against Salman Rushdie, or with the murder of the filmmaker Theo van Gogh, in Holland, in the fall of 2004. . . . Or you could start the story where it officially began, in Denmark, in the summer of 2005, when a children's-book writer looking for an illustrator to collaborate on a book about Islam for Danish school children was turned down by everyone he asked, on the ground that the project was too "dangerous." By September, his problem had made its way into the liberal Copenhagen daily Politiken, and was promptly co-opted by the conservative daily Jyllands-Posten, whose arts editor-now on "indefinite leave"-asked forty artists to "test the limits of expression" by drawing pictures of Muhammad. Twelve did. The exercise was insensitive, provocative, and arguably imprudent, if for no other reason than that Denmark had spent considerable time and patience on courting Middle Eastern markets. (It stands to lose $1.6 billion in export revenues this year, and one Danish company is already losing $1.7 million a day.) But there was never much argument at home about the newspaper's right to publish the cartoons.

Nor was there any real violence on the part of the two hundred thousand Muslims who live in Denmark; a few thousand demonstrated peacefully in October to protest the cartoons, and some groups filed a criminal complaint against the paper in a local court. There was not even much of a reaction in the Muslim world, which got its first look at the cartoons in mid-October, when Al Fagr, an Egyptian paper, reprinted six of them, one on its front page. Eleven Muslim ambassadors to Denmark did request a meeting with the ordinarily outspoken, conservative Prime Minister, Anders Fogh Rasmussen, but they were turned down, and most people in Denmark, perhaps even the ambassadors, assumed that was the end of it.

Moderate Danish Muslims allowed that the cartoons were offensive to them. [And then] in December, a radical imam from one of Copenhagen's outlying mosques put together a forty-three-page scrapbook of caricatures involving the Prophet (including the twelve cartoons and a couple of images that were, by anyone's standards, vicious), and sent it off to Egypt, where it began a ... tour of the Middle East. A month later, Magazinet, a small Norwegian paper close to the Christian right, reprinted the Danish cartoons... Ten thousand Muslims demonstrated in Gaza, then twenty thousand in Lebanon, then more than a hundred thousand in Pakistan. The demonstrations became riots, and more than thirty people have died. See Jane Kramer's "Comment" in the February 27th issue of The New Yorker.

Now more than two dozen European newspapers and magazines have reprinted some or all of the Danish cartoons, although in this country most major papers and magazines, while reserving the right to publish the images, have not done so. Clearly many Muslims felt and continue to feel harmed by the publication of these images. And perhaps many in the U. S. media have resisted publication because they do not wish to cause further harm. Perhaps. Or perhaps there are other "more complicated" reasons. But surely expressions of opinion do sometimes harm others. It would be ridiculous to think otherwise.

Indeed, as Joel Feinberg argues in his essay, "Limits to the Free Expression of Opinion," pp. 379-95, in the Philosophy of Law Text, the suppression of free speech is justified in any number of clearly and legally well-defined cases, thereby making the case by implication "that the harm principle is a largely empty formula in urgent need of supplementation by tests for determining the relative importance of conflicting interests and by measures of the degree to which interests are endangered by free expressions."

So, for instance, he argues that "expressions of opinion harm others when they are: defamatory (libelous or slanderous), seditious, incitive to violence, malicious publications of damaging or embarrassing truths, or invasions of privacy."

By the same token, if the main function of the criminal law is to prohibit and punish harm that is inflicted on a person against their will and abusive and insulting expressions can inflict real harm, harm that is non-trivial and long-lasting, why not bar or limit the use of expressions that are "abusive and insulting" to members of a religious group, expressions whose primary purpose is to hurt, not to inform? Why shouldn't the harms - arising out of (1) the danger of immediate violence; (2) the psychological and emotional hurt that a person subject to abuse can suffer; (3) the general offensiveness that the use of such language can cause; and (4) the destructive long-term effects from the attitudes reinforced by such remarks - count as harms that the criminal law may reasonably prohibit and punish?

These harms can be deeply felt and can cause permanent damage. If the primary purpose of the criminal law is "to prevent harm to others," a ban on the use of expressions and non-verbal symbols that members of a particular religious group find "abusive or insulting" would appear to be entirely appropriate.

One way to puzzle one's way through the question whether a legislative ban on the publication and/or dissemination of the Danish cartoons in the United States is justified or whether it would be unconstitutional and in violation of the First Amendment, trumped, as it were, by the right of free speech is to use various readings from the Philosophy of Law book as well as a variety of high court opinions as "test cases," as models for testing your own considered intuitions in answer to this question.

The court opinions in Cohen v. California , United States Supreme Court, 1971, in Texas v. Johnson, United States Supreme Court, 1989, and in Village of Skokie v. National Socialist Party of America, Illinois Supreme Court, 1978, all in the Philosophy of LawTextbook, pp. 395-411 as well as American Booksellers v. Hudnut, United States Court of Appeals, 1985 may come in handy in this regard, i.e., as test cases, and in thinking through and constructing your own argument for or against the limitation of the publication of words and non-verbal symbols that are "abusive or insulting" to a religious group. Each opinion in each of these cases has a word or two to say about the scope and limits of freedom of expression and the First Amendment and may help you work out your own opinion, perhaps even discover it.

In the last few years a number of college campuses have experienced an alarming increase in various racial incidents, from racial graffiti in dorms to abusive racial slurs and epithets on campus. As a result, several universities have adopted policies prohibiting "discriminatory verbal harassment" or "personal vilification." Brandeis is no exception. Eight years ago a paragraph was added to a section of the Student Handbook on "Rights and Responsibilities," Section 6, Paragraph 6.4. The Paragraph reads in full as follows:

Racial Harassment: At Brandeis University, any faculty member, employee, or student who racially harasses a member of the University community shall be subject to disciplinary action, up to and including termination of employment or dismissal of a student from the University. Derogatory comments, epithets, or other behavior are considered racial harassment if the conduct:

(A) demeans the race or ethnicity of the individual or individuals; and

(B) creates an intimidating, hostile or dangerous environment for education, University related work, living, social, or other University authorized activity.

The Brandeis provision on derogatory comments and racist epithets is not an isolated statement of University policy. It is articulated as part of a number of concerns. It appears in a Section entitled "Policies on Equal Opportunity and Affirmative Action," and directly follows the University's policy on sexual harassment. It figures, therefore, as part of the University's commitment to the principles of equal protection and non-discrimination. The University is equally committed to principles of free inquiry and free expression, but that commitment is articulated elsewhere.

The provision is also an interpretation of a more fundamental standard of personal conduct required of all members of the Brandeis University community. The following statement appears in the Introduction to Rights and Responsibilities: "In a University community it is essential that safeguards be provided for each community member's freedom to teach and freedom to learn. In protection of these freedoms, the University must establish certain standards of personal conduct." Paragraph 6.4 is a specific instance of Paragraph 2.1 which states the standard in fundamental form that "A student is expected and required to respect the integrity and personal rights of others."

These forms of harassment continue to be updated and clarified and so in the 2005-2006 version of Rights and Responsibilities Paragraphs 6.4 and 6.6 further explain and clarify the fundamental standard as well as what does and does not count as "sexual and racial harassment" as well as "verbal discriminatory harassment."

So, for examples, this year (2005-2006) Paragraph 6.4 now prohibits in addition to harassment based on a person's race or ethnicity, harassment based on a person's

"color, ancestry, religious creed, gender, national or ethnic origin, sex, sexual orientation,
age, genetic information, disability, Vietnam Era veteran,
qualified special, disabled veteran or other eligible veteran status."
See also Paragraph 6.6 Examples of Other Forms of Harassment/Discrimination
There are other forms of harassment/discrimination as well that create a hostile educational or work environment on the basis of race, color, ancestry, religious creed, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified disabled veteran or other eligible veteran status or status in any group protected by federal or state law (together, "protected class status").
In addition to "slurs and epithets," cartoons that make fun of, demean or denigrate a person's "protected class status" are now also mentioned as "examples of behaviors that may constitute harassment/discrimination under [the Brandeis speech" policy."

See (again) Paragraph 6.6 Examples of Other Forms of Harassment/Discrimination where the policy reads:

This is not an exhaustive list:

Since incidents in recent years on college campuses throughout the country have revealed some doubt and disagreement about what this fundamental standard might entail for members of the University community in the sensitive area where the right of free expression can conflict with the right to be free from "discriminatory verbal harassment". Paragraphs 6.4 and 6.6 are intended to provide students, administrators, faculty, and staff with some guidance in this area.

But does that guidance - on its face - constitute an appropriate (and constitutional) limitation of free expression? If the Brandeis provision was adopted by the U. S. House and Senate and passed into law, it would - in its most recent revision - appear to bar the publication of words and non-verbal symbols such as those published in Denmark by Jyllands-Posten on September 30, 2005? Would you support or oppose such a law? If so, why? If not, why not?

The narrow focus of the Brandeis provision drafted more than eight years ago would seem to have pleased many civil libertarians. In the areas it did not touch, it would seem to favor what civil libertarians most want: more speech. On the other hand, by virtue of its original, narrow focus, the provision appeared to lack neutrality. What do you think? Since eight years ago the Brandeis "speech code" barring certain forms of expression on campus limited only speech bearing on matters of race and ethnicity while neglecting other speech that might have been just as demeaning: insults and epithets directed at a person's gender, national origin, sexual orientation, handicap, religion or social class.

The Brandeis provision, as it has now been revised, that is, in its 2005-2006 version, tracks the form of injury dealt with by a civil rights approach, i.e., speech creating a hostile environment that denies equal educational opportunity. Talk of "hostile environments" may appear overly broad but the principles of equal treatment, including Title IX of the Civil Rights Act, not only allows but requires universities to punish discriminatory conduct, at least if it becomes sufficiently widespread to create a pervasively hostile environment.

The analogy is with an employer's obligations to deal with sexual and racial harassment by workers in the workplace. When female or black employees must endure a barrage of demeaning sex- or race-based insults from co-workers, an employer who ignores the situation may be guilty of unlawful sex or race discrimination. In Bohen v. East Chicago Judge Richard Posner put the workplace equivalent this way: "By taking no steps to prevent sexual harassment, the city created a worse working environment for women than for men . . . . That is discrimination. It is as if the city decided to provide restrooms for male but not female employees, and when pressed for a reason said it simply didn't care whether its female employees were comfortable or not." To avoid liability, an employer must take reasonable steps to keep verbal as well as physical or otherwise coercive abuse below the level of a "sustained pattern of harassment."

A civil rights approach to verbal abuse and hate speech simply applies the doctrine of hostile environment discrimination to the university. Most educators like most employers are required by law to provide equal opportunity to women and students of color. Campus harassment can make the educational environment hostile, just as workplace harassment makes the employment environment hostile. Brandeis first recognized this with respect to sexual harassment and adopted disciplinary restrictions accordingly. Why not treat racial and/or anti-gay and anti-handicap harassment or slurs and epithets that are "abusive or insulting" to members of a particular religion in the same way? As a legal matter, an unremedied "sustained pattern of harassment" might make the university itself vulnerable to charges of unlawful discrimination. Prudent educators will want to prohibit acts of harassment before the point at which the conduct becomes a sustained pattern and thus produces a legally actionable hostile environment.

The Brandeis "civil rights" approach may vitiate the Brandeis policy and in particular Paragraphs 6.4 and 6.6 from certain sorts of constitutional objections, but the University of Michigan's Policy on Discriminatory Harassment which appears to adopt this same approach was struck down in 1989. See Doe v. Michigan (721 F. Supp 852) 1989. Does the Brandeis standard escape the criticisms made by the Court of the University of Michigan's Policy?

Doe v. University of Michigan, 721 F. Supp 852 (1989)

The Brandeis provision of eight years ago also did not appear to make a distinction between slurs and epithets directed at individuals and those same slurs and epithets addressed generally to a campus audience. Is this a distinction the policy should make or is it a difference that ought to make no difference? The current wording speaks of slurs and epithets that "make fun of, denigrate or are based on an individual or groups protected class status."

A committee at the University of Texas has proposed a regulation of "racial harassment" that tracks the Restatement of Torts definition of intentional infliction of emotional distress, with the addition of the element of intent to "harass, intimidate, or humiliate . . . on account of race, color, or national origin." Establishing a violation requires an actual showing of "severe emotional distress" on the part of the victim. Does any part of the Texas proposal improve upon the Brandeis policy? Or is it too narrow? Too focused on harm to particular individuals?

The University of California has adopted a prohibition on student harassment by "fighting words," defined as "those personally abusive epithets which, when directly addressed to any ordinary person are, in the context used and as a matter of common knowledge, inherently likely to provoke a violent reaction whether or not they actually do so." See Chaplinsky v. New Hampshire (1942). Do you think that the publication of the Danish cartoons in the United States might come under scrutiny as a non-verbal form of "fighting words," thereby allowing a ban on their publication to pass Constitutional muster?

Chaplinsky v. New Hampshire, Supreme Court of the United States, 315 U.S. 568

Stanford's "Discriminatory Harassment Provision" is slightly different from the Brandeis policy, although the current wording of the Brandeis "speech code" seems to have borrowed some of the language from codes such as Stanford's. Does the Stanford statement of its policy include words or phrases that you would like to see in a legislative regulation of the use of words and non-verbal symbols "abusive or insulting" to a religious group? The first two sections of the Stanford policy are devoted to restatements of the university's commitment to principles of free expression and equal opportunity. The Preamble states a Fundamental Standard requiring students to act with "such respect for ... the rights of others as is demanded of good citizens."

The Stanford Discriminatory Harassment Provision:

1. Stanford is committed to the principles of free inquiry and expression. Students have the right to hold and vigorously defend and promote their opinions, thus entering into the life of the University, there to flourish or wither according to their merits. Respect for this right requires that students tolerate even expression of opinion which they find abhorrent. Intimidation of students by other students in their exercise of this right, by violence or threat of violence, is therefore considered to be a violation of the Fundamental Standard.

2. Stanford is also committed to principles of equal opportunity and non-discrimination. Each student has the right of equal access to a Stanford education, without discrimination on the basis of sex, race, color, handicap, religion, sexual orientation, or national or ethnic origin. Harassment of students on the basis of any of these characteristics contributes to a hostile environment that makes access to education for those subjected to it less than equal. Such discriminatory harassment is therefore considered to be a violation of the Fundamental Standard.

3. This interpretation of the Fundamental Standard is intended to clarify the point at which protected free expression ends and prohibited discriminatory harassment begins. Prohibited harassment includes discriminatory intimidation by threats of violence, and also includes personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin

4. Speech or other expression constitutes harassment by personal vilification if it: (a) is intended to insult or stigmatize an individual or a small group of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; and (b) is addressed directly to the individual or individuals whom it insults, intimidates or stigmatizes; and (c) makes use of insulting or 'fighting words' or non-verbal symbols. In the context of discriminatory harassment, insulting or "fighting" words or non-verbal symbols are those 'which by their very utterance inflict injury or tend to incite to an immediate breach of the peace,' and which are commonly understood to convey direct and visceral hatred or contempt for human beings on the basis of sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.

Several of the readings may come in handy here, too, in both setting the stage for your own thinking on this issue as well as providing a "model" for how you might approach the very topic itself. The two essays by Feinberg are especially useful, both in the Philosophy of Law book. One on "Offensive Nuisances," pp. 278-93. From your reading of this essay, would the publication of the Danish cartoons be considered an "offensive nuisance" open to being made a crime by Feinberg? What do you think? Were (are) the cartoons "offensive" and if so, "offensive" to an extent that they would not succeed as protected free speech?

And what about the harm they caused and continue to cause? Feinberg discusses harms that certain forms of speech can and do cause in his other essay in the Philosophy of Law book, an essay already mentioned, on the "Limits to the Free Expression of Opinion," pp. 379-95, Would Feinberg claim that the harm was beyond the reach of the criminal law or that it fell (falls) within its very point and purpose? What is your view?

Then, too, there is the excerpt from John Stuart Mill from On Liberty: What would he conclude about the Danish cartoons? Protected forms of the free expression of opinion or subject to regulation?

In this regard, too, Henry Louis Gates, Jr.'s "War of Words," albeit lengthy, also in the Philosophy of Law book, pp. 412-33, has several useful things to say to both sides of the argument, to those who are for and to those who are against regulating racist slurs and epithets. Gates discusses and tries to weave into his own set of concerns the rulings in a number of "free speech" cases, including Hudnut (1985), Skokie (1978) and Chaplinsky v. New Hampshire (1942).

The chapters by Alan Dershowitz, "Defending Pornography" and "Nudity on a Cape Cod Beach," in THE BEST DEFENSE, pp. 155-205, may also prove useful as might Gerald Dworkin's "Paternalism", in the Philosophy of Law book, pp. 293-303.

So, too, will several of the handouts, in particular, "How Nasty Are We Free to Be" which rehearses some of the matters raised here in the paper topic.

Make a case for or against making it "a crime" to say, write, depict and/or publish anything that is "abusive or insulting," "derogatory or demeaning" to a religious group, think of several strong arguments that might be made against your case, and respond to them.

Consider three of the readings and three court cases as models and/or test cases for your own position for or against a ban on or regulation of the widespread dissemination of images such as the Danish cartoons in this country.

In the course of bringing what you believe is the best defense for your own position explicitly to light, provide the clearest expression of "the harm principle" that best supports your position as well as makes the best sense of your reasoning, think of some other way of construing "harm" and "the harm principle" that supports and encourages a different line of reasoning other than your own, and respond to it.




Prepared: March 14, 2006 - 5:02:29 PM
Edited and Updated, March 17, 2006

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