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.
Seems to me this would make a nice law-school hypothetical.
1. Â 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.
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 itâ€™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 wouldnâ€™t see that sign as a statement of fact about this particular mosque: If someone really thinks that a mosque made bombs, he probably wouldnâ€™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 wouldnâ€™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 canâ€™t be punished on the theory that it advocates crime unless itâ€™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.