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

[Eugene Volokh]

        Hmm, it seems profitable to me.  First, quite a few people, including I
think some on this list, have shown some sympathy for accepting a new First
Amendment exception for "hate speech," and accepting it given the
circumstances in the U.S. today, and not just assuming Israel-style threats
to civil order.  I'd like to hear how their proposals would apply to this;
in my experience, many such proposals have been fairly vague, and it would
interest me to see how this example can help flesh them out.

        Second, we already have a "regulatory system" in the form of hostile
environment harassment law that might apply here.  As discussions have
shown, it's hard to find a clear "authoritative[] interpret[ation]" of this
system, but perhaps thinking about how what the courts have said would apply
here might help us clarify our understanding of this body of law.  Seems
like a reasonable possibility, no?

        So I'm not sure why we need to be much detained about the context in which
the regulations were supposedly adopted.  Harassment law is already here
today, and people have urged restrictions on "hate speech" given the
circumstances around us today.  What else do we need to know about the
"context" before we apply these restrictions (both current and proposed) to
this hypothetical case?

        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 7:00 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Mohammed, Corpus Christi, "hate speech", and harassment law
>
>
> 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.
> >
>