Architect of “Hate Speech” Laws Disbarred for Misconduct

By David Stein

Very few people know the name Joseph M. Ribakoff. Yet in the fight against Islamist extremism, especially in Europe, his presence is certainly felt (as it has been for several decades), even if his name is not known. Because Mr. Ribakoff holds a unique place in the movement to criminalize speech that “defames” minority religious and ethnic groups. And as anti-Islamist authors and activists are being dragged through the courts in Europe, Australia, and Canada for “defaming” Islam, it might be of interest to all supporters of free speech to know that one of the originators of “group defamation” laws has just been disbarred for misconduct.

Oh, and one other thing – he doesn’t believe that group defamation laws are a good idea anymore.

Joseph Ribakoff was the author of the “group defamation” law that was selected as the most effective and legally sound model statute at a conference at Hofstra University in 1988. The goal of that conference, which brought together leading legal scholars from the U.S., Europe, Canada, and Australia, was to choose a “group defamation” statute that could pass legal muster in the U.S. and elsewhere in the West.

Ribakoff’s statute was chosen by the conference’s attendees, and tested in a moot court proceeding (in which a fictional white man named Jesse Stump was put on trial for his racist views), with Columbia Law School Vice Dean (and former Director-Counsel of the NAACP) Jack Greenberg acting as prosecutor, and Alan Dershowitz acting for the defense.

The judges were Abner Mikva of the U.S. Court of Appeals for the District of Columbia, and Amalya Kearse of the U.S. Court of Appeals for the Second Circuit.

Stump was “convicted” under Ribakoff’s statute, and Ribakoff (at the time a student at Whittier College School of Law) was rewarded with $1,500 (about $3,000 in 2011 dollars) for his efforts toward criminalizing “offensive” speech.

You can read Joseph Ribakoff’s model statute in a PDF file here: ModelStatute. You can read more details about the Hofstra conference here, and you can listen to the keynote speech by Democratic Congressman John Conyers Jr. here.

Sadly, in the years since his group defamation statute proved such a hit with those who favor restricting free speech rights, Mr. Ribakoff’s career as a lawyer has not proven as successful. The California State Bar disciplined and suspended him in 2001 and 2002. He was ordered inactive twice in 2007, and once in 2009. He was classified as “not eligible to practice law” at various times in 2001, 2002, 2003, 2004, 2007, and 2009.

And finally, in November 2010, he was disbarred. In its ruling, the State Bar Court of California concluded:

Lesser discipline than disbarment is not warranted because there are no extenuating circumstances that clearly predominate in this case. Moreover, it is evident that prior discipline, coupled with his prior probation, has not served to rehabilitate respondent or to deter him from further misconduct….Having considered the evidence, the standards and other relevant law, the court believes that disbarment is the only adequate means of protecting the public from further wrongdoing by respondent.

The complete PDF of the ruling can be read here.

Although there are those who might gloat that a man who helped contribute to censorship and the prosecution of people based purely on their political ideas is deserving of such a fate, personally I couldn’t help but like Mr. Ribakoff when I conducted an interview with him in 2004. I’ve never published it before, and what more appropriate a time to finally do so than this week, as CounterContempt begins releasing the audio recordings of the Hofstra conference.

I found Mr. Ribakoff to be candid, forthright, and – frankly – very sharp. At the time, I recall thinking that even though he’d be the last person I’d ever hire as an attorney (he was in the middle of one of his suspensions at the time of the interview), I’d probably enjoy grabbing a beer with the guy.

Stein: I’m curious how you heard about the Hofstra Group Defamation model statute contest, and why you decided to enter it (no apologies necessary if you can’t recall these details – it was fifteen years ago!).

Ribakoff: I learned of the competition from a flyer posted in the Boston U. Law School library. I went to the library to research landlord/tenant law. I wanted to research landlord/tenant law because my apartment had roaches and the landlord would not do anything.

S: Did you go about writing your statute with a sincere desire to one day see a statute of this kind enacted into law, or was it more of an academic exercise for you?

R: I got involved in the competition because I am interested in First Amendment issues. I also got involved because I needed the first prize money.

S: Have your views on “group defamation” changed in any way since 1988?

R: This is really two questions. Group defamation involves the constitutional issue. The first issue is if group defamation is 1st Amendment protected speech. My view on this hasn’t changed.  Group defamation is the same as individual defamation. If I say that all Mongolians are child molesters, then ain’t I saying that Genghis is a child molester? If Genghis can sue me for defamation if I say that he is a child molester, why can’t he sue me if I that all Mongols, including him, are child molesters? I believed then that group defamation is unprotected, and I believe today that it is not protected.

The second issue is a policy issue. Are speech regulations a good idea? My views have changed since then. I have changed because I have matured. I have grown old and ugly, but I am a little wiser.

I was raised with ADL type thinking – hate laws and all that. This is European thinking. We are not in Europe. We are in the US.  The US is superior to Europe. One of the important differences is the First Amendment. Our tradition is not to limit speech, but to learn to answer our detractors and trust our fellow citizens to know right from wrong. Our system works better. Let me illustrate the difference. I am sure that you are familiar with Mel Gibson’s “Passion” movie. I have not seen it, but I accept as true that it is racist. The ADL solution is to call it anti-Semitic and ban it. The classic First Amendment way is to use it as a means to create a public debate.

S: Regarding Holocaust denial: Where do you fall in the debate between those who say that the best response to this scourge is silence, versus those who say that denial must be effectively countered with education, versus those who say denial should be countered with legislation (as in France and Germany)?

R: Regarding holocaust deniers, they should all be paraded on national TV and humiliated by a funny comedian. But seriously, I believe in the American way. Answer the idiots, don’t censor them. I think freedom is the best way to answer this kind of idiocy. I trust that John Q American is decent, honorable, and intelligent and can make a fair decision on his own without government intervention.

S: Do you think your statute could be used to restrict the speech of, let’s say, an African-American speaker or university professor who makes a blanket condemnation of “white people,” or a Holocaust survivor who makes a blanket condemnation of Germans as a people? Or even anti-war protesters who make blanket condemnations of Americans?

R: You raise an interesting point with the question. It has to do with the law of unintended consequences. I recall someone concluding that the ones who were benefiting from all the college speech regulations were white males. Most of the time the new speech rules were being used to censor speech by some minority.

The more rules you write, the more likely they will be abused.  After a decade of practicing law, I have also learned not to trust the judiciary. They, too, misinterpret statutes. This is perhaps one reason more to weigh carefully any new law before enacting it.

However, the scenario you described should not occur. The speech you describe is political speech. It is protected by the 1st Amendment. 

I am not sure how the group defamation statute ties into the post 9/11 war against terror. I don’t see how or why the regulation should or can be used to stifle protest speech. Although I strongly favor the war in Iraq and Afghanistan, I am vigorously opposed to any speech regulation that may be used to limit protest.

I wish to amend one of my earlier answers. I previously said something to the effect that freedom is the best answer to racism. I was wrong. It is the only answer – well, freedom and comedy.

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