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

[Mark Tushnet]

I'm still unsure that the approach Eugene suggests is profitable.  To
begin to think about "what should happen if the same speech took place
in the U.S.," I'd want to know things like this:  What were the
circumstances that led to the adoption of a regulatory system that was
authoritatively interpreted to cover the distribution of the flyer as
described (and, if one were to think about the Corpus Christi example,
what were the circumstances that led to the adoption of an authoritative
interpretation that authorized regulation of one but not the other).
Desscribing hypothetical circumstances without giving the context in
which the regulations in question were adopted and applied seems to me
quite unprofitable.  (My intuition, for example, is that if the
circumstances were similar to the ones Eugene wanted to put aside --
serious threats to civil order -- my reaction would be different than if
the circumstances were like the ones prevailing in what I imagine the
workplace at the Department of Justice to be; but, precisely because the
circumstances are not the same, it's hard to imagine why enforcers would
move against the speech in a way that was found to be authorized by
[nonconstitutional] law.)
----- Original Message -----
From: Eugene Volokh <volokh at MAIL.LAW.UCLA.EDU>
Date: Thursday, August 23, 2001 4:23 pm
Subject: Re: Mohammed, Corpus Christi, "hate speech", and harassment law

>        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'sright 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
> theirproposal 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
> reasonablequestions, 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
> constitutionalprinciples 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.
>