Judge in case of atheist attacked by Muslim: It was right on the edge of being "ethnic intimidation"

Watch to the end for the coup de grace to a week of news stories about people getting killed over burned Korans. In case the headline’s unclear, Martin’s not saying that choking an atheist for mocking Mohammed constitutes intimidation (he says there isn’t enough proof to conclude that it happened, although some sort of altercation clearly did). He’s saying that mocking Mohammed is intimidating to Muslim bystanders, not unlike putting on a white hood and robe around someone who’s black. That’s a perfect Orwellian inversion of reality: The reason people get nervous when Islam is satirized or insulted is because they fear a violent reaction by Muslims, not against them. That’s why Comedy Central has made Mohammed a red line for “South Park,” that’s why newspapers only rarely reproduce the Jyllands Posten cartoons, that’s why Obama and the NATO brass are falling all over themselves to apologize for the Koran-burnings. If you saw some guy parading down the street as “Zombie Mohammed,” you’d worry too — for his safety. The taboo against insulting Islam is higher than for other faiths only because it carries more risk to the offender. This tool somehow manages to identify that — intimidation is indeed the key component — before bizarrely suggesting that it runs the other way.

He’s got some interesting ideas on free speech too:

Interviewer: When I spoke to him over the phone, Judge Martin acknowledged it’s his job to protect the rights of people like the atheist, no matter how offensive they might be.

Interviewer to Judge Martin: … There are some who believe you were failing to protect that right.

Judge Martin: No, I don’t think so. Here’s the thing: It’s a right, it’s not a privilege, it’s a right. With rights come responsibilities. The more that people abuse our rights, the more likely that we’re going to lose them.

Is that a warning or a threat? Eugene Volokh counters, “I … think that free speech rights are in danger when judges berate alleged crime victims for their anti-Islam speech, and thus convey the message that the legal system may be biased against those who engage in such speech and may fail to protect those people because of such speech.” Like I said the other day, it sounds to me like this guy might be a fan of the “fighting words” exception to the First Amendment by which certain types of speech can be banned if they’re likely to offend the audience to the point of violence. (That exception has come up before in Supreme Court cases dealing with hate speech.) If you accept his logic that mocking Mohammed, even in a dopey over-the-top zombie costume in the middle of a public street, is sufficient to “intimidate” Muslims, then it’s only natural that they’d lash out in order to protect themselves. And if they’re apt to lash out, the state might decide it’s worth trying to regulate insulting depictions of religious figures in order to avert violence. That’s the “hate speech” rationale for de facto blasphemy laws; the “fighting words” exception, which appends a “heckler’s veto” to the First Amendment, is the mechanism by which they could, theoretically, happen. It’s pure garbage but dangerous stuff potentially in the hands of people like this.

Update: Incidentally, there’s some confusion over whether the judge himself is Muslim or not. The audio of his lecture to the atheist in court made it sound like he said “I’m a Muslim” at one point, but Andy McCarthy argues here that it was mistranscribed and that the judge said “If I’m a Muslim” while speaking hypothetically. Doesn’t affect any of the above, though.

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David Strom 6:01 AM on June 06, 2023