Slippery slopes and proposals for reinstituting group libel law
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Mar 7 13:46:52 PST 2007
Calling Jews generally "Christ-Killers" is not going to be
understood, I think, as an assertion that each individual Jew personally
killed Christ. (That assertion would be ridiculous even by the
standards of anti-Semitism.) As Greenbelt Cooperative v. Bresler
correctly holds, the meaning of a statement must be determined by how it
would likely be understood in context.
In context, calling Jews "Christ killers" means saying that all
Jews *bear the moral or theological blame* for the death of Jesus. The
claim is, as I think I suggested, that (1) some Jews at some point are
morally responsible for killing Jesus (even though Christians believe
that the actual execution was carried out by Romans), and (2) all Jews
today bear the moral responsibility stemming from the actions of Jews
2000 years ago. That's a morally repugnant claim, I think. But it is a
claim of opinion about moral responsibility, and not a claim of fact
that Eugene Volokh, among millions of others, was seen nearly 2000 years
ago killing Jesus Christ.
Eugene
> -----Original Message-----
> From: Cohen,David [mailto:dsc39 at drexel.edu]
> Sent: Wednesday, March 07, 2007 1:00 PM
> To: Lynne Henderson; Nelson Lund; Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: Slippery slopes and proposals for reinstituting
> group libel law
>
> Wandering way afield of the original topic, but just to
> address these points, Jews (at least, the non-Jews-for-Jesus
> Jews) don't believe that Jesus was the messiah, thus we don't
> call him "Jesus Christ." "Christ"
> means "messiah," so in that sense, it is a statement of
> opinion. Thus, most Jews just use "Jesus," his given name.
>
> Also, the problem people (Jews and non-Jews alike) have with
> "calling Jews 'Christ killers'" is that it sounds like the
> statement is calling "all" Jews "Christ killers." I know I
> didn't kill him, and I'm pretty sure most of the Jews who
> have ever existed didn't either. Maybe some individual ones
> did, but the statement you've referred to has a very
> different connotation than "some Jews at some point in
> history killed Jesus."
>
> David S. Cohen
> Associate Professor of Law
> Drexel University College of Law
> (215) 571-4714
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lynne
> Henderson
> Sent: Wednesday, March 07, 2007 3:27 PM
> To: Nelson Lund; Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Slippery slopes and proposals for reinstituting
> group libel law
>
> I don't see how calling Jews "Christ killers" *isn't* a
> statement of fact!
> It is a factual claim about who is responsible for the death
> of Jesus, not a "mere" opinion. Good giref, this was one
> of the bases for persecution of Jews for centuries.
> One could argue, no, it was Pontius Pilote and the Romans who
> factually crucified the man known as Jesus, but at the
> crowd's behest and urging.
> This isn't mere opinion--it is both fact and attribution of
> collective guilt.
> As for whether Jesus was the Messiah, that is belief, but
> factully in ordinary terms he is known as "Jesus Christ," no?
> Lynne Henderson
> ----- Original Message -----
> From: "Nelson Lund" <nlund at gmu.edu>
> To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> Cc: <conlawprof at lists.ucla.edu>
> Sent: Wednesday, March 07, 2007 12:08 PM
> Subject: Re: Slippery slopes and proposals for reinstituting
> group libel law
>
>
> > One more small point in support of Eugene's argument: In the opinion
> of
> > some, referring to Jesus of Nazareth as "Christ" would be implicitly
> to
> > express an opinion, not a fact.
> >
> > Nelson Lund
> > George Mason
> >
> > Volokh, Eugene wrote:
> >
> >> One striking thing I've noticed about slippery slope arguments in
> >> "hate speech" or "group defamation" contexts is how the slippery
> >> slope is often directly visible in the restriction supporters' own
> >> arguments. So Malla begins by arguing in favor of an "innocent[]
> legal
> >> change": "accept[ing] group defamation claims." She stresses that
> >> "allowing group libel claims would not get rid of most inflamatory
> >> opinions, but it would reach claims about facts."
> >>
> >> Yet now she seems to be suggesting that calling Jews
> "Christ Killers"
> >> would itself be actionable as group "libel per se." Yet
> calling Jews
> >> "Christ Killers" isn't a claim about facts: It's a
> claim
> >> about theological and moral desert, which makes it a
> quintessential
> >> claim of opinion. The theory is that the Jews of Christ's
> time were
> >> morally responsible for Christ's being crucified, and that the Jews
> of
> >> today are tainted with this moral guilt of Jews 2000 years
> ago. It's
> a
> >> morally repugnant opinion, but it's an opinion, not a claim about
> facts.
> >> It isn't even an opinion that implicitly asserts certain
> defamatory
> >> facts. (At most it asserts facts about Christ's existence and the
> >> circumstances of his death, but those factual claims are not
> themselves
> >> defamatory, and more importantly these sorts of religious
> claims must
> be
> >> treated as something much like opinion in any event.)
> >>
> >> Yet it looks like the "innocent[] legal change" of allowing "group
> >> libel claims" would not just erode the actual malice
> standard present
> >> in conventional libel law (more on that in earlier posts),
> but
> >> also erode the requirement that the false statements be facts, not
> >> opinion. So it would damage libel law broadly -- and it would
> certainly
> >> make the "group libel" exception broader than it was originally
> claimed
> >> to be. And people wonder why some people with a broad
> view of free
> >> speech protection worry about slippery slopes.
> >>
> >> Eugene
> >>
> >>
> >>>-----Original Message-----
> >>>From: Malla Pollack [mailto:mpollack at ajsl.us] Sent:
> Wednesday, March
> 07,
> >>>2007 7:10 AM
> >>>To: 'Harry Pohlman'; Volokh, Eugene
> >>>Cc: conlawprof at lists.ucla.edu
> >>>Subject: RE: Proposal for reinstituting group libel law
> >>>
> >>>Very good question, thans for raising it. Actually some assertions
> have
> >>>always been libel per se -- no need to prove actual harm. I think
> >>>claiming a group consists overwhelmingly of rapists,
> Christ Killers,
> etc
> >>>is close enough to move easily from individuals to groups. As for
> group
> >>>reputation the BBC news just published that Isreal has an extremely
> low
> >>>international reputation with people (not governments). So
> they must
> >>>consider some type of
> >>>evidence relevent to such questions. Presumably, if the
> allegedly
> >>>libelous
> >>>statement did not consitte libel per se, one could do a
> survey -- as
> a
> >>>trademark attorney I can vouch for public serveys being
> used as trial
>
> >>>evidence consistently (though some early cases did raise hearsay
> >>>problems, courts have stopped that line).
> >>
> >> _______________________________________________
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