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

Eugene Volokh volokh at MAIL.LAW.UCLA.EDU
Fri Aug 24 16:28:08 PDT 2001

        I appreciate Mark's thoughts on this, though I still disagree with his
analysis; but I think I've probably taxed the list's patience enough on this
thread, so I'll leave at least the harassment law part of it lie for now.  I
would, however, be delighted to hear others' views on the Mohammed cartoon
and the hate speech debate, if anyone would care to chime in on that.


> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at]On Behalf Of Mark Tushnet
> Sent: Friday, August 24, 2001 3:10 PM
> Subject: Re: Mohammed, Corpus Christi, "hate speech", and harassment law
> Hmm -- Eugene asserts that the following is "pretty clear, even
> uncontroversial":  "Most people don't burn flags for reasons quite
> unrelated to flagburning laws; but though flagburning law punishes, or
> even deters, even a few people, it's unconstitutional."  Now, obviously,
> if the government *invokes* a flag-burning law, a court would hold it
> unconstitutional.  This is the structure of *that* problem:  "Person A
> has several reasons to do X [burn flags].  A statute gives person A a
> reason not do do X.  It is beyond the government's power to give person
> A a reason [or, 'that reason' -- cf. Matt Adler's 'rights against rules'
> argument] not to do X."  That may be pretty clear, even uncontroversial,
> although I do wonder whether the claim would elicit universal agreement
> if the reason the government gives is so weak as not to affect anyone's
> behavior, that is, not to deter anyone who would otherwise do X from
> doing so.
> But, that aside, if I understand the purported analogy correctly, it is
> this:  "Person A has several reasons to do X.  A statute gives person A
> another reason to do X.  It is, however, beyond the government's power
> to give person A that additional reason."  Now, that's an interesting
> theory about the nature of constitutional restrictions on government
> power, but it does not strike me as an uncontroversial one.  (A stray,
> and perhaps irrelevant, thought:  Is a subsidy for flag-burners
> unconstitutional? A subsidy for institutions that adopt -- or
> demonstrate that they do not have -- speech codes?)
> Finally, I notice that even Eugene can't avoid making a claim about the
> numbers of people affected, in writing, "When the government makes X
> liable for failing to suppress speech A on X's property, the government
> is indirectly trying -- ***and often succeeding*** -- in suppressing A"
> (emphasis added).  Again, if the government actually imposes liability,
> we have one problem, but -- to return to the methodological question in
> which I am primarily interested -- one that simply cannot be analyzed by
> posing hypothetical cases.  Otherwise, in the absence of actual
> enforcement, one of the things at issue is whether, when one observes
> the implementation of a speech code, one is observing the success of a
> government effort or rather behavior engaged in for business/decency
> reasons.  I've expressed my skepticism about the claim that the (it
> seems to me remote) possibility of liability plays a role that is not
> dominated by business/decency reasons.  But, in the end, that is an
> empirical question, again not amenable to analysis by positing
> hypotheticals.

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