Friday, February 24, 2006

The Friday Fantastic Four #6.

1. Featured Law-Oriented Blog.

This week's featured law-oriented blog is The Legal Writing Prof Blog. The Legal Writing Prof Blog is part of the Law Professor Blogs Network, and contains all kinds of great information about legal writing and the legal writing community. Recent posts, for example, include information about new books orscholarly works to improve your writing skills, job openings for those seeking academic employment, and more. There are also links to other great legal writing resources on the internet. This site is a great starting point for any practitioner looking for materials to help improve his or her writing skills, any practitioner looking to get into academics, or even students looking to improve their legal writing skills.

2. Featured Law Commentary.

This week's featured law commentary is by Bernard Freamon of Seaton Hall Law, courtesy of Jurist. Freamon's commentary is titled "A Danish Trojan Horse: Law and the Muhammed Cartoons".

Freamon's point of view on the ongoing controversy over Danish newspapers' publication of cartoons depicting the Muslim Prophet Muhammed is that of a Muslim African-American law professor. Freamon approaches the controversy as involving "profound questions about the continued viability of a liberal and universalist approach to free expression in our rapidly changing and increasingly pluralist world." Importantly, Freamon urges against "blindly" definding the action of the newspapers and forgetting "that the idea of freedom of expression evolves and deepens as history progresses."

Freamon does note that Muslims should be "deeply concerned" because Muslims are being "provoke[d]. . . to commit senseless acts of violence that do not uphold or further the banner of Islam and the values that the Prophet Muhammed sought to inclulcate in" his followers. Freamon notes that Islam teaches that vilification of any religion is reprehensible and must be strongly condemned, and recognizes that "the Arab press [frequently publishes statements] vilifying the Jewish religion and Jewish people."

Freamon notes that Islam's teaching against the vilification of religion makes it "very right" for Muslims to "vigorously condemn the publication of the cartoons and to seek to punish the editors through the criminal law process." According to Freamon:

There is no room in the public square, it seems to me, for the race-baiter or religion-baiter who acts with the intention to injure or harm others. If these cartoons are in fact a Trojan Horse for such behavior the editors must be exposed and punished. We should remember that the Rwanda genocide was preceded by radio broadcasts that described Tutsis as “cockroaches” and supposedly innocently listed the names and addresses of people who were later murdered by Hutu mobs, simply because of their ethnic origin or association with the Tutsis. The International Criminal Tribunal for Rwanda rightfully rejected the free expression defense offered by the radio broadcasters at their trial for genocide and crimes against humanity.

Freamon then tries to make the case that Danish law supports criminal prosecution for the publication of the cartoons. In this regard, Freamon's logic seems to me to be flawed. Here's why:

Freamon first recognizes that Denmark applies Article 10 of the European Convention on Human Rights and recognizes that freedom of speech is recognized as an essential foundation of a democratic society, applicable not only to information or ideas that are favorably received, but also to those that are offensive, shocking, or disturbing. Freamon even recognizes the particular importance of the right to the media, "which must 'impart information and ideas on matters of public interest.'"

Freamon then, rightly, recognizes that freedom of expression is not an absolute right under the European Convention. The specific restrictions recognized by Freamon are restrictions "necessary 'for the protection of the reputation or the rights of others.'" Freamon notes that this restriction permits civil actions for libel and slander, and also allows criminalization of hate speech. Relatedly, the Danish Penal Code authorizes criminal prosecution of anyone "'who publicly or with the intention of dissemination to a wide circle of people makes a statement or imparts other information threatening, insulting or degrading a group of persons on account of their race, color, national or ethnic origin, belief or sexual orientation . . ..'" Freamon further recognizes that Denmark has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (1965), which condemns "'racial discrimination and undertake[s] to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.'" Freamon notes that this allows Denmark to "restrict hate speech when the circumstances, taken as a whole, show that such speech or expression promoted racial discrimination or hatred."

So far, so good. Freamon's recount of internation law is, no doubt, accurate to this point. Further, I don't disagree with Freamon's conclusion that:

Under both these standards it appears to me that the Jyllands-Posten publication of cartoons satirizing the Prophet Muhammad with depictions and caricatures may very well be a violation of Danish Penal Code section 266b, if it can be shown that the editor knew that the religious sensibilities of Muslims would be deeply offended by the caricatures and that he intended to stir hatred and ridicule with their publication.

Where I disagree with Freamon, however, is when he next concludes that Danish prosecutors commited "a patent abuse of their discretion and a blatantly political decision" in refusing to authorize a criminal prosecution of the newspaper editor. As Freamon himself recognizes, for publication of these photographs to be a violation of Danish law, it must be shown both that the editor knew that the religious sensibilities of Muslims would be deeply offended by the caricatures *and* that he intended to stir hatred and ridicule. It seems to me that both of these might well be both questionable and very difficult to prove.

First, assuming that the editor is not himself Muslim or for some other reason extremely well-schooled in the Muslim religion, it does not seem unreasonable to me that the editor may not have known that publication of images of Muhammed would "deeply offend" Muslims. In this context, it certainly seems that the mere fact that the content of the cartoon might, or even probably would, be offensive is likely not enough. The term "deeply" offensive, especially when being applied to a subject such as a political cartoon, might reasonably require the prosecutor to conclude that the editor needed to understand, in this context, that Muslims find the very depiction of Muhammed to be particularly offensive. Perhaps I am naive, but I suspect that the vast majority of non-Muslims had no idea how offensive Muslims find any depiction of Muhammed prior to this editor's publication.

Second, even assuming that the editor knew or should have known at the time of publication that publishing the cartoons would be "deeply offensive" to Muslims, the Danish law would further require a showing that he "intended to stir hatred and ridicule with their publication." In this regard it seems plausible that the editor may have had any of a myriad of other intents. Further, proof of a specific intent, especially one to stir hatred and ridicule, could be exceedingly difficult; at this point there does not seem to be any evidence to suggest this was the editor's intent, and Freamon does not suggest any such evidence.

In light of the questions surrounding both of the key elements, my disagreement is with Freamon's characterization of the prosecutor's decision not to pursue criminal charges as "a patent abuse of discretion and a blatantly political decision." Perhaps this is arguably a close case or one where a case can be made for prosecution, but the exercise of prosecutorial discretion in such a close case does not equate to patent abuse or blatant politicization. If there is, strong and clear evidence to suggest that the editor did know how "deeply offensive" these cartoons would be and that he did choose to publish them with the intent to "stir hatred and ridicule," then perhaps Freamon's conclusion is correct. Otherwise, this appears more a case where the prosecutor may have had to make a close call depending on the available evidence and the likelihood of ultimate success. To suggest that the call should have been in favor of prosecution simply to curb "skinheadism and anti-Muslim and anti-immigrant violence" is to suggest that the discretion should have been exercised to make a political statement, rather than as a true discretionary decision based on what prosecutors have to consider in every case, the potential charges, the evidence, and the likelihood of successfully using public resources to seek a conviction.

3. Featured Non-Law-Oriented Site.

This week's featured non-law-oriented site is Snopes is the single best resource on the internet for urban legends, email hoaxes, and the like. We all have those friends who persist in sending us emails proclaiming that Bill Gates or some company is tracking an email and if it gets forwarded to enough people we will get some cash reward, or that Oliver North warned Congress about Osama Bin Laden back in 1987, or some other ridiculous chain-hoax-scam email. Snopes has the scoop on all of them, complete with thorough research and documentation of sources.

So the next time you get an email including photos that purport to be of George Bush holding a book upside down or a woman smuggled into the US in the dash of a car, you can find out whether they are phony or real.

4. Featured Just-For-Fun Site.

Finally, this week's featured just-for-fun site is Andrew McClurg's Legal Humor Headquarters. This is a great site for all sorts of legal related humor, including weird legal news, strange judicial opinions, and links to other law and legal humor related sites. If you need a good laugh, go check it out.

Previous Friday Fantastic Four Posts:
February 10, 2006 (FFF #5)
January 27, 2006 (FFF #4)
January 20, 2006 (FFF #3)
January 6, 2006 (FFF #2)
December 30, 2005 (FFF #1)


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