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Sunday, March 11, 2012

Criminalizing Speech

Law professors Jonathan Turley (George Washington University) and Eugene Volokh (UCLA) note recent challenges to freedom of speech.

At the Los Angeles Times, Turley writes of a Pennsylvania judge who dismissed harassment charges against a Muslim who attacked an atheist.  The latter had worn a costume mocking Muslims, and the judge criticized him for it.  Turley reflects on a broader trend:
Western countries are on a slippery slope where more and more speech is cited by citizens as insulting and thus criminal. Last year, on the Isle of Wight, musician Simon Ledger was arrested on suspicion of racially aggravated harassment after a passing person of Chinese descent was offended by Ledger's singing "Kung Fu Fighting." Although the charges were eventually dropped, the arrest sends a chilling message that such songs are voiced at one's own risk.

Some historical debates have now become hate speech. After World War II, Germany criminalized not just Nazi symbols but questioning the Holocaust. Although many have objected that the laws only force such ignorance and intolerance underground, the police have continued the quixotic fight to prevent barred utterances, such as the arrest in 2010 of a man in Hamburg caught using a Hitler speech as a ring tone.

In January, the French parliament passed a law making it a crime to question the Armenian genocide. The law was struck down by the Constitutional Council, but supporters have vowed to introduce a new law to punish deniers. When accused of pandering to Armenian voters, the bill's author responded, "That's democracy."

Perhaps, but it is not liberty. Most democratic constitutions strive not to allow the majority to simply dictate conditions and speech for everyone — the very definition of what the framers of the U.S. Constitution called tyranny of the majority. It was this tendency that led John Adams to warn: "Democracy … soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.''

Legislators in the United States have shown the same taste for speech prosecutions. In June, Tennessee legislators passed a law making it a crime to "transmit or display an image" online that is likely to "frighten, intimidate or cause emotional distress" to someone who sees it. The law leaves free speech dependent not only on the changing attitudes of what constitutes a disturbing image but whether others believe it was sent for a "legitimate purpose." This applies even to postings on Facebook or social media.
Rush Limbaugh recently made vile and demeaning comments about a woman who sought to testify about contraception. Volokh writes:
Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:
Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree ….
Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.
1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort). But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.
 2. Beyond this, the Florida criminal statute, which explicitly applies only to accusations about women and not men, almost certainly violates the Equal Protection Clause doctrine that bans most forms of sex discrimination. (See, e.g., Mississippi Univ. for Women v. Hogan (1982).)