"While Islam promotes free speech, it is important to recognize that anything that is discriminatory does not qualify under this heading."

So reads a flyer from the USC Muslim Students Union, announcing a panel discussion titled "Islam and the Cartoons: the Responsibilities of Free Speech" (PDF), which Eugene Volokh is discussing here:

I take it that the implication is that criticism of Islam, or critical depictions of Mohammed (or is it any depictions of Mohammed at all?), is unprotected because it's "discriminatory." How about Muslim statements that other religions are misguided; are those "discriminatory," too?

Plus of course there's also the old chestnut about the supposed "differences between free speech and hate speech." Fortunately, modern U.S. First Amendment law does not treat the two as antonyms, just as it wouldn't discuss "the differences between free speech and blasphemy" or "the differences between free speech and sedition." It's a shame that the USC Muslim Student Union takes a different view.

Even though the flyer uses the phrase "free speech," it does not mention the U.S. Constitution or say that the discussion is about the constitutional law or the scope of constitutional protections. The cartoons controversy is not, after all, about government censorship, but about private individuals and groups trying to influence other private individuals and groups. No one writes and says and draws everything that constitutional law would permit, and most of us would be hard pressed to come up with things we could express that would be something the government could censor. There are plenty of hateful, ugly, and hurtful things we can easily think of that we would restrain ourselves from saying even though we have a constitutional right to say them. And I don't mean to appear to be lecturing Eugene Volokh about any of this, because it's an obvious given that, as a conlawprof, he knows this.

I just want to defend the Muslim Students Union here. There is nothing in that flyer that condones violence. I would prefer to see the Union openly condemn the threats of violence and distance their religion from the threats of violence that are plainly at issue in the cartoon controversy. But it is perfectly legitimate to have a private conception of "free speech" that is narrower than the legal definition. And it is is likewise perfectly legitimate to have a private conception of "discrimination" that is broader than the legal definition. Religions tend to have far higher standards for behavior and expression than the government would impose (which is one of the strongest reasons for having a separation of religion and state).

A private group that wants to hold a discussion can define the topic and impose some limitations, including demands that participants discuss the issue rationally and without shouting and deliberately provoking each other. Those who want to range into different issues and fling insults about are free to start their own discussion. Here, the Muslim Students Union may mean to say something like: We want to host a discussion, and we are going to try to keep the discussion civil. We want to talk with you, not provide an occasion for you to show up at our place and taunt us.

I'm thinking of a discussion I set up quite a while ago at the Law School. Some of the women students got the idea that the failure to use the Socratic Method discriminates against women. The male students, they had observed, were more likely to volunteer than female students, so a lawprof who relied on voluntary participation would have a classroom with a disproportionate amount of male speakers. I set up a discussion so that students and faculty could exchange ideas on the subject. Now, some of the students were really upset and even thought that there were teachers who deliberately used voluntary participation as a way to suppress women, a charge I thought was beyond the pale and distracting.

I wrote a flyer inviting students and faculty to the discussion and included a sentence framing the issue for discussion. I stated an expectation that we could have an intellectual discussion of the problem of whether the Socratic Method is needed in order to avoid a disparate impact on female students and that we ought to avoid emotional charges that anyone is deliberately discriminating against women.

One faculty member, a constitutional law professor, came to my office to express outrage that I had imposed that limitation on the discussion. The students should be free to vent emotionally and to air whatever accusations they wanted. Did free speech require that? I was setting up a discussion. I defined the ground rules in a way that I thought would be most fruitful and that would encourage more people to show up and contribute (something I do in the classroom constantly). My colleague could set up another discussion where students were allowed to talk about what bigots individual professors are, but I wouldn't even attend a discussion like that. Would you?

By the same token, I think it's fair for the Muslim students to try to set up a helpful discussion by signaling that the atmosphere is not going to be ugly. That can encourage attendance and a willingness to listen and exchange ideas on the topic chosen. If anyone thinks they've left something out, they can set up another discussion.