This is the kind of stuff that's hard to invent and a pleasure to see (for a Conlawprof, at least): a real life example of the basic conflict in our heads that makes Constitutional law so interesting, and maddening, to some people, at least.
Of course we're all for freedom of speech. It's the American way. We like motherhood and apple pie, too, but we don't want our daughters becoming mothers until, well, you get the picture.
Here's an example out of the Mother Country, Britain, the folks who gave us freedom of speech, so to speak.
From the New York Times on Saturday, December 25, 2004, Christmas, this day brightener.
The furor begins when the Birmingham Repertory Theater stages a production of a play called "Behzti" by Gurpreet Kaur Bhatti, a British-born Sikh, one of some 400,000 Sikhs in Britain.
The play includes a scene where a woman is raped in a Sikh temple and then beaten by her own mother and other women. The rapist claims to have had a homosexual relationship with the woman's father. It sounds more like San Francisco than Birmingham, but there you go.
Hundreds of Sikhs began attacking the theater, throwing bricks, smashing windows, and fighting with police. Definitely San Francisco.
Ms. Bhatti, who must be by now, goes into hiding, fearing for her life, a la Salman Rushdie, the subject of a notable fatwa for allegedly insulting the entire religion of Islam for his Satanic Verses in 1989.
Okay, so the yokels become exercised, the authorities step in, the matter is calmed down, and no constitutional problem, right?
Wrong.
Britain has a law, a new one, that makes incitement to religious hatred a crime. It extends an old law that outlawed incitement to racial hatred.
We're all against those, aren't we? Burning crosses and that sort of thing? We're quite familiar with it. See Virginia v. Black, No. 01-1107. Argued December 11, 2002--Decided April 7, 2003.
Harminder Singh, a spokesman for the advocacy group Sikhs in England said that the play would be less offensive if the setting were changed from a temple to a community center, a suggestion that was rejected. And Mark Twain would have been better advised had he put Huckleberry Finn and Jim at the local gym instead of on a silly raft. The fact that the play took place in a temple was at the center of Sikh objections, according to NYT reporter Alan Cowell.
"It's nothing to do with the contents; it's the context," Singh said. "We are not against freedom of speech, but there's no right to offend."
In the Independent, reports Cowell, the British playwright Arnold Wesker argued that offending others was
"an inescapable hazard of living and must be considered a sign of intellect and emotional maturity when accepted."
By contrast, Wesker attacked zealots of all eras, reports Cowell, from the tormentors of Joan of Arc to the perpetrators of the Holocaust and those who "flew planes into the twin towers and most recently in Birmingham censored a play."
In San Francisco recently, a small North Beach art dealership was forced permanently to close when a presumed neighbor entered and beat the owner, after harassing her repeatedly. She was a mother who brought her kids to the store to look after them. The barbarian's objection was that the proprietor displayed in the store window oil paintings depicting the notorious mistreatment of Iraqi prisoners at Abu Ghraib, based on the shocking photographs, particularly the one of the Iraqi prisoner standing, in a black hood and cape, on a crate, arms stretched wide, hooked to an electric charge.
Interesting that the objected-to work of art was not fictitious, created out of the imagination, but a near-literal rendition of a photograph showing the truth of our activity at Abu Ghraib. See Robert Scheer's column today, 12/29/04, advocating invading Cuba to get rid of a tyrannous government espousing torture of prisoners in a place called Guantanamo.
Apparently the more truthful the work of art, the more objectionable it is. That is the old law of libel, the one at issue in John Peter Zenger's trial for seditious (criminal) libel in New York Colony around 1732, when he nailed the colonial governor once too often in his newspaper.
Casting the governor into disrepute and making the people lose confidence in their governors was bad enough, but when the nasty things you said about him were true, that made it far worse, for then he had no defense except to shut you up, you devil.
Nicholas Hytner, the artistic director of the National Theater, told the BBC that theater's role was to provoke powerful feelings.
"The giving of offense, the causing of offense, is part of our business," he said.
It might have been Justice Holmes who observed that words are incitements to action.
If we are to ban incitement, we must then ban words.
That sounds like a wonderful idea.
Just ban words and you'll have no more upset people.
We'll all be happy.
Perhaps you recall the scene in Amadeus where the Emperor repeats a criticism to the effect that the problem with Mozart's music is that it has "too many notes," which it does. There are so many of them.
To which Mozart replies, "Which of them would you have me eliminate, Sire?"
Or words to that effect. Memorizing the literal correctness of screen lines is not one of my fortes.
Well, which is it that we're going to have, a ban on words? Or a ban on hurting people's feelings?
Okay, you only want to ban some words?
How about nigger?
That's the granddaddy bad word in all of American.
Only if you ban it, you don't get to read about Huckleberry Finn and Nigger Jim, to give him the appellation by which he happens to be known in Mark Twain's little book. What do you think about that book, anyway. You have read it, haven't you? Recently? Good.
Why not give me your list of ban-words.
George Carlin has his list of seven that you can't say on the radio or TV, so you might just as well have yours. Ask Michael Powell at the FCC if he can help you compile your list, and while you're at it, ask him if he got a charge out of viewing the clips of Janet Jackson's lovely bared breast during the half-time show at last year's Super Bowl between...damned if I can remember who was playing...much less who won.
Surely you must have the answer to the question as to whether we should ban inciting words or words that hurt people's feelings off the top of your head!
However, if you don't, and would care for a lead into the subject area of "incitement," see Brandenburg v. Ohio (1969) 395 US 444.
The Oxford Guide to U.S. Supreme Court Decisions, edited by Kermit L. Hall, has the following to say about the Brandenburg decision, which was both unanimous and per curiam (meaning the opinion is credited to all of the justices who join, not just one; there may be dissents, and the resolution was probably fairly clear cut) has the following to say, by Donald Downs:
Brandenburg is "significanty more protective of dangerous speech than the previous "clear and present danger" test [of Holmes] employed in previous cases."
Downs explains that the clear and present danger test had permitted the punishment of speech
if it had a "tendency" to encourage or cause lawlessness (Schenck, 1919) or if the speech was part of a broader dangerous political movement, like the Communist Party (Dennis, 1951).
The Brandenburg test allowed government to punish the advocacy of illegal action only if "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. (p. 447)
By requiring the finding of an actual empirical finding of imminent harm, this test protects the advocacy of lawlessness except in unusual instances. But government may still punish speech that is demonstrably dangerous. The test is also distinctly more objective than the old danger test. Brandenburg is the lynchpin of the modern doctrine of free speech, which seeks to give special protection to politically relevant speech and to distinguish speech from action.
Armed with that, how do you think the British statute prohibiting incitement of racial or religious hatred would fare if it were an American statute and challenged before the U.S. Supreme Court?
Suppose that the Sikhs, again assuming the entire situation were transplanted to the U.S., sought to enjoin the play based on the anti-incitement statute? Do you think a federal court would or should grant the injunction?
As the constitutional lawyer for the theatrical production company, charged with resisting the request to enjoin further performances of the offending play, what would you have to say about the statute that prohibits incitement based on race or religion?
Do you think that it should be legal to put on a play where offended minority groups throw bricks at the play-house windows, or threaten customers lined up to buy tickets.
As theater owner, when you call the police and they tell you simply to cancel tonight's sold out performance, on which your ability to meet the payroll depends, what should you say to the police?
Have you ever heard of a "heckler's veto?"
What do you think that might be, and where would you go to look it up?
Google is a good place to start, these days, so here goes:
See Ronald Standlers outline of cases on the heckler's veto, here, in which he observes:
The phrase "heckler's veto" occurs in passing in the
Supreme Court decision that declared the Communications Decency
Act unconstitutional. Reno v. ACLU, 117 S.Ct. 2329, 2349 (1997)(The statute
"would confer broad powers of censorship, in the form of a 'heckler's veto,'
upon any opponent of indecent speech who might simply log on and inform
the would-be discoursers that his 17-year-old child ... would be present.")
In a case involving removal of a painting from public display, because of the "very faint" possibility of riots, Judge Posner tersely put the whole issue in perspective when he said:
The rioters are the culpable parties, not the artist whose work unintentionally provoked them to violence.
Nelson v. Streeter, 16 F.3d 145, 150 (7thCir. 1994).
And for the icing on the cake, see Dahlia Lithwick's account, in Slate, of the oral argument in Good News Club v. Milford Central School District in which Justice Rehnquist asks about a heckler's veto and Ms. Lithwick, in her column, suggests that the entire Establishment Clause is a gigantic heckler's veto.
