Mohammed, Corpus Christi, "hate speech", and harassment law

[Eugene Volokh]

        Hmm -- I'm sorry if I was unclear in my original post, but I was using the
Israeli example simply as an inspiration.  I'm *not* trying to say what's
right or wrong for Israel, or suggesting that U.S. constitutional law should
follow Israeli constitutional law.

        Rather, I'm asking what should happen if the same speech took place in the
U.S., both under a "hate speech" exception that some have proposed, and
under hostile environment harassment law.  I'm also incidentally asking how
proponents of a "hate speech" exception, who have often supported their
proposal by pointing out that other democracies endorse such an exception,
would react to this speech in the U.S.  Those seem to me to be reasonable
questions, even when asked by someone who does not advocate that U.S. courts
self-consciously follow the constitutional rules of other countries (or vice
versa).  I'd love to hear people's answers to them.

        Eugene


-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Mark Tushnet
Sent: Thursday, August 23, 2001 3:57 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Mohammed, Corpus Christi, "hate speech", and harassment law


Wait a minute.  I seem to recall a discussion on this list a while ago
in which our moderator took the position that, in principle, it was
unsound to attempt to invoke comparative constitutional experience in
developing U.S. constitutional law.  I disagree, but put that aside.  If
it's unsound in principle to move from there to here, why isn't it
unsound in principle to test our understanding of our own Constitution
against examples drawn from other constitutional cultures?

Is it at all "inconsistent" to say that (a) in *our* constitutional
culture it would be a constitutionally impermissible (or permissible)
thing to punish display of the depiction, and (b) in *their*
constitutional culture it would be a constitutionally permissible (or
impermissible) thing to do so?  And, incidentally, how can one
coherently think in comparative terms "set[ting] aside .  .  . the
special circumstances of Israel"?  In even more general methodological
terms, how can one coherently test one's intuitions about constitutional
principles by posing entirely decontextualized hypotheticals?  In my
view, the largest benefit of comparative inquiry is not direct
importation of doctrine (a la the "hate speech is banned by lots of
non-totalitarian regimes" example), but in alerting us to the cultural
context within which our intuitions arise.