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01/11/2015

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Michael Dorf

Very thoughtful post, Steve. I have a related post on my blog about self-censorship.
http://www.dorfonlaw.org/2015/01/gratuitous-offense.html
On the question you raise here, I agree with the conclusion that even in a legal system that generally bans hate speech, depictions of the prophet Mohammed would not, absent more, count as hate speech. But I think I disagree with your further point that a European country that bans racist hate speech could or should draw a different line with respect to religious hate speech. In modern times, religious hate speech very often has an ethnic/racial dimension. Antisemitism in Europe is an obvious example and Europeans on the left today worry about Islamophobia, not because they want to protect militant Islam but because they want to protect the many Muslims who do not share the ideological/religious views of militant Islamists. Thus, the sorts of reasons advanced for banning racist hate speech in Europe apply at least as strongly--and given Europe's history, perhaps more strongly--to religious hate speech. Because I take the "American" view that hate speech falling short of incitement generally shouldn't be banned, I find this question academic. But if someone agrees with racist hate speech bans, I think it doesn't make sense to distinguish religious hate speech.

Steve Shiffrin


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Mike
Thanks for the comment. I wonder what you think of the argument that discussions of religious doctrine filled with hate are different from denunciations of groups
on the basis of character traits. So there is a difference between saying the Jews were responsible for the crucifixion of Jesus (wrong-headed and harmful as that position has been) and saying that Jews are greedy etc. I also wonder what you think of the
argument that we can be more confident that stigmatizing statements about vulnerable groups on the basis of racial or ethnic background are less valuable than statements about religious doctrine however hateful. I also wonder if my post is consistent with
Matsudas view that hate speech is speech with a message of inferiority, that is directed against a historically oppressed group, and that is persecutorial, hateful and degrading
I am thinking it might be consistent with it because statements about religious doctrine are not directed against a group. For example, I passionately despise Christian fundamentalism, but I need not harbor hatred for Christian fundamentalists by that fact.
My basic intuition is that passionate, hateful statements of religious doctrine may have value, value not shared by criticism of Jews or Muslims in general.

Michael Dorf

Hi Steve. I think the distinction may be sound in principle but, as your example illustrates, difficult to maintain in practice. The ostensibly historical or theological claim that Jews were responsible for the crucifixion was a staple of antisemitic attacks for centuries. Let's take another one. Suppose someone says that the Protocols of the Elders of Zion are not a transparent Czarist forgery but genuine. That's a historical claim that falls outside of Matsuda's definition. Etc. The difficulty of suppressing hate speech that fits the Matsuda definition (or some other similar definition) while not suppressing ideas is part of why I tentatively favor the "American" approach of protecting hate speech.

Steve Shiffrin


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Mike
Thanks again. I think the examples show that the distinction I am using is under inclusive and does not cover enough speech, not that ideas worth preserving are
being suppressed (though I admit Matsudas definition could be applied in ways that would be problematic). Many Europeans would say that Matsudas approach is too narrow. For example, Matsudas approach would not reach to cover denials of the Holocaust. I
think there are some contexts in which her approach might be too narrow. One might argue in the Skokie case that Jews were historically oppressed, but are no longer oppressed though still an object of discrimination in some quarters. I have forgotten how she
handles that. In Skokie, what matters to me is the degree of offense and the potential for violence. Finally, I believe context matters. Despite what I have said, if demonstrators show up outside a Mosque parading images of the prophet, I would think an action
for intentional infliction of emotional distress should be countenanced.
By the way, I read your post at dorfonlaw. I entirely agree and will share it on facebook.

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