How free should hate speech be?

Should a homeowner annoyed about the lights of a neighboring mosque be allowed to post a sign in his yard saying “Bomb making next driveway?” I’d say no.

A homeowner complains that the lights from a new building on an adjacent property shine into his house. He asks the neighbor to build a fence. The neighbor says that a fence would cost too much, and plants a hedge instead. The hedge will provide the required privacy once it is full grown, but not now. The homeowner, naturally, is annoyed.

So he does what any sensible person would do. Since the uncooperative neighboring landowner is a mosque, he posts a sign.

 

Harry Scull Jr. / BUFFALO NEWS
[Photo credit: Harry Scull Jr. / BUFFALO NEWS]

Seems to me this would make a nice law-school hypothetical.

1.  Is the sign protected free speech?

2. Does it constitute incitement?

3. If so, is it subject to prior restraint?

4. Either way, is it actionably defamatory?

5. Does the homeowners’s assertion that the sign doesn’t actually specify the mosque by name have any weight?

Seems to me that the people who use the mosque shouldn’t have to put up with being called terrorists, with the attendant risk that someone might try to do something about it. But I’d be interested in expert views on the law* [see update below], and in everyone’s views on the policy question.

What’s shocking is not that the homeowner was annoyed enough to try this stunt; it’s that he thinks he can get away with it: not legally, but socially. If it had been a Catholic church, and the sign had said “Child molesting next driveway” I would have been concerned about violence against the homeowner rather than the church. And at the very least I would expect him to be shunned by everyone else in town. Is he right to think that the people who live in his Buffalo suburb won’t give him a hard time? I sure hope not. But he knows them better than I do.

*UPDATE

Expert opinion requested, expert opinion received. (Gotta love blogging!) Eugene Volokh writes:

Seems to me pretty clearly constitutionally protected. The only possible basis for a lawsuit would be that the sign is libelous, but in context it’s pretty clearly likely not to be seen as a statement of fact about what actually goes on in the mosque next door.

Note the subtlety: a false accusation of terrorism would be actionable, but simply throwing around “terrorist” as an insult is protected speech. It would be interesting – and perhaps legally relevant – to interview a random sample of people driving by to see how many are willing to believe that a mosque makes bombs. I wish I shared Eugene’s confidence that few would see “bomb making” as a statement of fact. (See, for example, “Obama, Barack, birth certificate of.”)

SECOND UPDATE Eugene follows up:

Just to clarify the reason I assume that people wouldn’t see that sign as a statement of fact about this particular mosque: If someone really thinks that a mosque made bombs, he probably wouldn’t put up a sign to warn passersby, but would instead call the police. Bomb-making by a neighbor is just not the sort of thing people try to warn the public about. So even people who suspect that some mosques do harbor bomb-making on their very own grounds probably wouldn’t interpret that sign as an allegation that this particular mosque does precisely that.

I agree that the proverbial “reasonable man” would think that way. But would a drunken Glenn Beck fan? Seems to me that the sign constitutes more than a mere insult to the people in the mosque. To this argument Eugene replies:

Speech can’t be punished on the theory that it advocates crime unless it’s (1) intended to and (2) likely to produce (3) imminent criminal conduct, i.e., conduct in the immediate future and not at some unspecified time in the future.

Another good reason to handle this socially rather than legally: the other neighbors ought to make it clear to the homeowner that he’s being a jerk, and ostracize him if he keeps it up. The good news and the bad news about that is that he’s not entitled to due process of law.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

29 thoughts on “How free should hate speech be?”

  1. 1. No, because it is defamatory.

    2. No.

    3. After a final judgment finding it to be defamatory, then a court might issue an injunction against it.

    4. Yes.

    5. No.

  2. Agree with Henry. This is defamation law, not constitutional law.

    (Ob-disclaimer: IAAL, but NTKoL.)

  3. I think you could argue that number 2 should be yes. Labeling your local Mosque as “bomb makers” certainly seems to me like it’s intended to incite some kind of violent reaction.

    Otherwise, I think Henry’s answers are correct.

  4. Chuchundra, there is no possible grounds upon which the government could prohibit the sign, apart from defamation. It does not constitute “fighting words,” because those are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” It also does not constitute “advocacy of the use of force or of law violation” that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The sign, unlike speech covered by those two exceptions to the First Amendment, would not prompt immediate or imminent violence.

  5. “Note the subtlety: a false accusation of terrorism would be actionable, but simply throwing around ‘terrorist’ as an insult is protected speech.”

    That makes perfect sense. A false accusation can injure the reputation of the accused, whereas throwing around “terrorist” as an insult reflects on the speaker more than it does on the accused.

    By the way, although I said above that the sign is defamatory, I now agree with Eugene’s take on it, unless Mark’s random sampling proved Eugene and me wrong.

  6. I’m a bit taken aback by the people saying this is purely a matter free speech and nothing is to be done, or that it is in some vague way defamation but is not incitement and little remedy is available. I can assure you that if my neighbor put up a sign alleging that I was plotting to murder others of my neighbors, or alleging that I inculcate in people the desire and instruct in them the ability to do murder my nighbors, I would take that sign as being a very real threat against my safety. I would take it as being both a slander and an incitement to violence, and I would seek to have it removed, to obtain an apology, to recuperate my costs in the matter, and to get some sort of binding agreement or restraining order preventing future similar incitement.
    Now, I’m not a lawyer. Maybe I’m off-base about the legal issues; quite likely I’m ignorant about possible outcome and remedies. But the basic meaning of the sign and the rough outline of the desired outcome don’t seem to me to be anything but obvious.

    Mind you, if the neighbor is troubled by bright lights today, the eventual growth of a hedge is not a solution, and some sort of temporary fence should be erected to be later engulfed or replaced by the hedge. Assuming the lights are obnoxious, he would have a very real complaint on that matter. Doesn’t justify his sign, though.

  7. The guy is over-reacting for sure, but he shouldn’t have to put up with lights shining into his home. When I was staying in a DC suburb last year there was one of those stupid old-fashioned-looking electric streetlights that give off an enormous amount of light pollution instead of just lighting the ground like they are supposed to do, and you can bet I hated it shining right into my window every night.

  8. Warren, a small point first: “slander” is oral defamation; “libel” is written defamation; that’s why Eugene’s use of the term “libelous” is correct, whereas your use of “slander” is not. Defamation is false speech that injures reputation, and, if Eugene is correct that people who read the sign would not likely take it as a statement of fact, then it would not injure anyone’s reputation.

    You would also take the sign as an incitement to violence, and it might be that in fact, but it is not that for purposes of the First Amendment. See my comment at 3:57 p.m.

    You add that, putting the legal issues aside, “the basic meaning of the sign and the rough outline of the desired outcome don’t seem to me to be anything but obvious.” That might be the case, but that’s not enough to deny the sign First Amendment protection. And that’s a good thing. If this sign could be banned, then a lot of less harmful speech could be banned. We should put the First Amendment aside only when harm is likely and imminent, as when one falsely shouts fire in a theater. Granted, that protects some pretty nasty speech, but better that than allowing the government to ban too much speech.

    You also say that you would consider the sign to be a threat against your safety. The Supreme Court has held that “true threats” are not subject to First Amendment protection, but, although the sign may seem threatening, it does not literally threaten at all.

  9. Henry, I am, as I conceded earlier, ignorant of the law. The whole slander/libel distinction is one I always get wrong, when I remember it exists, and whether this distinction has any function other than to empower lawyers and pedants is quite beyond me.

    Still, I’m not in the slightest convinced by your reply. If I put up signs around your neighborhood with your picture and the caption “This man is coming to murder your children in the night” surely the existence of these (factually inaccurate) signs would be not merely “threatening” but an active threat to your safety? There’s a gradation here, of course – if those signs instead were captioned “This man is not nearly so nice as he ought to be” there would be no threat at all, and there’s a continuum between those two points. But it does seem clear to me where on that continuum the “Bomb making” sign falls.

    Separately from my belief that the sign constitutes a threat, I believe bomb making even for peaceful purposes is a regulated activity (teenagers caught with pipe bombs are charged for having made and for possessing those bombs), such that he is accusing his neighbors of criminal activity.

  10. Warren, “threatening” does not mean the same thing as to make a threat; it is generally only the latter that the First Amendment does not protect. But you are right to think in terms of gradations; these are not clear lines, and there are close cases. In a case in 2002, the Ninth Circuit, by a 6 to 5 vote, upheld a damage award in favor of four physicians and two health clinics that provide medical services, including abortions, to women. The plaintiffs had sued under a federal statute that gives aggrieved persons a right of action against whoever by ‘‘threat of force . . . intentionally … intimidates any person because the person is or has been … providing reproductive health services.’’ The defendants had published ‘‘WANTED,’’ ‘‘unWANTED,’’ and ‘‘GUILTY’’ posters with the names, photographs, addresses, and other personal information
    about abortion doctors, three of whom were subsequently murdered by abortion opponents. The defendants also operated a ‘‘Nuremberg Files’’ website that listed approximately 200 people under the label ‘‘ABORTIONIST,’’ with the legend: ‘‘Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).’’ The posters and the website contained no language that literally constituted a threat, but, the court found, ‘‘they connote something they do not literally say,’’ namely ‘‘You’re Wanted or You’re Guilty; You’ll be shot or killed,’’ and the defendants knew that the posters caused abortion doctors to ‘‘quit out of fear for their lives.’’ The Ninth Circuit concluded that a ‘‘true threat’’ is ‘‘a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person.’’ ‘‘It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally
    or knowingly communicate the threat.’’

    Judge Alex Kozinski, in one of three dissenting opinions, agreed with the majority’s definition of a true threat, but believed that the majority had failed to apply it, because the speech in this case had not been ‘‘communicated as a serious expression of intent to inflict bodily harm….’’ ‘‘The difference between a true threat and protected expression,’’ Judge Kozinski wrote, ‘‘is this: A true threat warns of violence or other harm that the speaker controls…. Yet the opinion points to no evidence that defendants who prepared the posters would have been understood by a reasonable listener as saying that they will cause the harm…. Given this lack of evidence, the posters can be viewed, at most, as a call to arms for other abortion protesters to harm plaintiffs.”

  11. Henry, you quote Kozinski’s minority opinion – but you don’t take a position on whether you agree with him. Moreover, even accepting the characterization made within the passage you quote, is “a call to arms for other abortion protesters to harm plaintiffs” permissible?

  12. Warren Terra:
    “If I put up signs around your neighborhood with your picture and the caption “This man is coming to murder your children in the night” surely the existence of these (factually inaccurate) signs would be not merely “threatening” but an active threat to your safety?”

    Only if it’s likely or actually true that people believed the signs. If no-one believes the statement it doesn’t harm you and so isn’t defamation. “This man poisoned my lawn” may be more likely to be defamation than “This man poisoned my whole family”, even though it’s a much less serious accusation.

    Mark says “I wish I shared Eugene’s confidence that few would see “bomb making” as a statement of fact.”
    Would it be enough that people believed that mosques, in general, were the sorts of places where bomb-making happened, or would it be necessary that the sign made people more likely to believe that this particular mosque was guilty?

    The analogous “Child molesting next door” I think would be interpreted as an accusation against the particular priest — ie, people believe that some priests molest children and others don’t, and they would take the sign to be a claim that this particular priest is guilty, which would be libellous if the claim was false. But Mark seems to think it would be interpreted as a general insult to the Catholic church, if it would attract attacks on the person posting the sign. In that case it’s not clear to me that it would be defamation under the law.

  13. Because the sign is directed at a “group” (i.e. those who attend the mosque or Moslems in general), it would be libelous if and only if a plaintiff could prove that the statement was directed at him or her. Under the Restatement 2nd,

    “One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

    (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or

    (b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member”

    “The proposition that ‘general statements about a large class of people are not actionable by individual members of the class’ has been frequently echoed and routinely applied.” Stern, “The Certainty Principle as Justification for the Group Defamation Rule,” 40 Ariz. St. L.J. 951, at p.959

    The statement itself can be interpreted as a statement against 1. All Moslems or 2. Moslems who attend the Mosque next door. If interpreted as a statement against all Moslems, it clearly would not be actionable by individual Moslem. If the statement is interpreted as a statement against only those who attend the Mosque, it will still be difficult to bring an action for liable because there is no particular reference to any particular attendee.

  14. Warren, whether I agree with Kozinski is a tough question. In general, yes; I believe that threatening statements that do not make a threat should be protected by the First Amendment. In this particular case, however, where doctors had already been murdered as a result of the website, I might have voted with the majority, despite my general agreement with Kozinski. I’m not a “Let justice be done though the heavens may fall” type of guy. And I suspect that that was the attitude of the six judges in the majority; I believe that, in a less extreme set of circumstances, they might have agreed with Kozinski. But what difference does my personal opinion make? My point was simply that there are close cases. That why we have lawyers to argue them.

    Is “a call to arms for other abortion protesters to harm plaintiffs” permissible? Again, see my comment at 3:57. The Supreme Court held that it is permissible unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” I don’t think that that’s the case with the sign.

  15. I did not mean that the case in which the Supreme Court held that advocacy of violence is protected by the First Amendment unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” involved abortion protesters; it did not. But its principle would apply with respect to abortion protesters.

  16. Let me simply restate my earlier point: the legal discussion should be unnecessary, because the neighbors ought to be able and willing to apply sufficient social pressure to cause the homeowner, unless he is seriously deranged, to take down the sign. No one should talk to him, visit him, receive him, buy from him, or sell to him until the sign comes down. Harsh measures, indeed; but warranted in this case.

  17. Sounds to me like a jury question, and I’m not as ready to say that no person anywhere could possibly think that a reader would understand this sign to be a statement of fact about the management of the mosque as some folks seem to be.

  18. “Let me simply restate my earlier point: the legal discussion should be unnecessary, because the neighbors ought to be able and willing to apply sufficient social pressure to cause the homeowner, unless he is seriously deranged, to take down the sign. No one should talk to him, visit him, receive him, buy from him, or sell to him until the sign comes down. Harsh measures, indeed; but warranted in this case.”

    The guy seems to have a real grievance, which has been ignored. Before he put up the sign, he tried talking to the mosque owner and to the town officials in a (possibly) civil manner, and was rebuffed. It could be that this light’s just a stupid excuse, or maybe it’s really darn bad. We haven’t checked, so I don’t see why you’re so ready to judge him and apply vigilante social pressure. Supposing the light really is bad, would you recognize that it is the mosque who started this fight, and not the racist? Would you apply this same social pressure to the mosque members?

    Again, assuming the light actually is very bad, I would personally be very frustrated if I were in this man’s position. I doubt I’d put up that sign, but I think I’d be entitled to do *something* unneighborly.

  19. “I assume that people wouldn’t see that sign as a statement of fact about this particular mosque: If someone really thinks that a mosque made bombs, he probably wouldn’t put up a sign to warn passersby, but would instead call the police.” Eugene’s reasoning seems like one of those logic problems where the right answer depends on figuring out what other people are thinking. “If I have a red spot, then A would see it and know that I was seeing B’s white spot . . .” Absent a winky emoticon or a parenthetic “only kidding,” I’d figure the guy means what he says.

  20. Even if you figure that the guy means what he says, he’d have to be credible to injure the other guy’s reputation and thereby give rise to a defamation suit. Why would anyone believe the sign? If I saw the sign, I’d think, is this some kind of joke?

  21. I live outside the Buffalo area and first read the story on the website of the local paper. If the comments there are any indication then this situation is being handled socially just fine. The commenters seemed to be embarassed by his actions, especially as the story was getting picked up nationally.

  22. Does a statement have to be believed to be literally factual to be defamatory? What if I merely got the impression that the people at the mosque might plant bombs made elsewhere, or draw up plans for third parties to plant bombs assembled elsewhere? What if my impression was that people at the mosque merely held discussions that led to mosque members drawing up plans or assembling bombs at some other site? How particularized does my newfound impression of unlawful activity have to be? As for the question of individuals having standing, I wonder how the criteria will change in an era of cheap video and license-plate recognition. Suddenly fingering individuals as members of a particular group has become rather easier.

  23. Paul, I think that you’re losing sight of the fact that “defamatory” means injuring reputation. A credible false statement of fact can injure reputation. The judge or jury decides whether the statement conveys a credible false assertion of fact that injures someone’s reputation; it doesn’t matter how “literally” factual the statement is.

  24. Henry: no, I think what I’m losing sight of is “statement of fact”. My starting point is that this sign or one like it definitely does injure the reputation of the mosque as a corporate body and its congregation as individuals. Some/many people who see the sign, especially not knowing its context, will (I’m assuming) come away with the impression that the mosque is a place where bad people do things that are most likely unlawful, but that the police because of technicalities are powerless to prevent or punish. Those people will not want to do business with the mosque or members of its congregation, not want to associate with them and so forth.

    My question is whether the defamatory statement has to be perceived as literally factual (about actual making of bombs in the building) to be actionable, or if it could be actionable if people simply perceived it as factual in intent (about the presence of bad people involved in bomb-related program activities)

  25. I still don’t think it matters. What matters is whether it injures anyone’s reputation. Both “people are making bombs in the building” and “people in the building are involved in bomb-related program activities” are assertions of fact, so, if the sign can be construed to communicate either of those, then the plaintiff can establish one element of a cause of action for defamation. Whether the sign is credible enough to injure reputation is another question.

  26. In the Northern California town where I reside (and, I imagine, all across America), it’s an election-season tradition for campaigns to steal each others’ yard and roadside signs. (The campaigns don’t cop to it, of course, but disappear the signs do.)

    Now, there’s a quick 2 a.m. removal of the sign. There’s adding “Bigot, this driveway” signs. There’s a casual paint spray-over. There’s fire, though that’s an extreme measure.

    Have they become such fragile flowers in Buffalo that nobody knows how to deal with an offensive yard sign?

  27. From the responses, it seems that when comes to Mosques and Moslems, no one is an environmentalist. Are the lights on all night? Why can’t the brightness be reduced? Could a better and more eco-friendly lighting arrangement yield a win-win resolution?

    The other less sexy but still interesting question is who has the burden of mitigating the annoyance (nuisance?). If A decides to keep the lights on all night and the light intrudes on neighbor B, is it A’s,B’s or their joint responsibility to build a fence or purchase shutters or opaque window coverings?

    The solution offered by the professor, socially ostracizing an individual, while it may work in certain homogeneous religious communities (in orthodox Jewish communities, an individual may be placed in “cherem” the most notable example being Spinoza), but such a solution is unlikely outside of the stetl or stetl-like community unless the offensive behavior everyone in the community to the same extent. It is also an unnecessary exercise of coercion or force if the problem will yield to a less drastic solution such as those suggested in the prior paragraph (shutters and/or change in the lighting). Finally, before wishing for the more drastic and “unrealistic” social solution, perhaps the professor should consider whether it could work in the opposite direction and whether the community is more likely to side with the sign maker than the Mosque. Before any coercive technique is used, the proponent should consider if it the only technique which can accomplish the desired end and the whether it is likely to lead to undesired ends which outweigh the immediately desired end.

  28. Are the lights on all night? Why can’t the brightness be reduced? Could a better and more eco-friendly lighting arrangement yield a win-win resolution?

    These all cost money and likely require hiring of an electrician, more money. And if you have a belligerent neighbor and your lighting meets code, then why spend the money? Note: I’m a full supporter of the suggested policies of the IDA.

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