Architect of “Hate Speech” Laws Slams “ADL-Type Thinking,” Denounces Own Work

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Very few people know the name Joseph M. Ribakoff. Yet in the decades-old fight to make “hate speech” a crime, his presence is certainly felt. Mr. Ribakoff holds a unique place in the movement to criminalize speech that “defames” minority religious and ethnic groups. He created what is still, to this day, the model statute for “group defamation” laws. “Group defamation” means that a person can be criminally prosecuted or tried civilly for “defaming” not an individual, but a racial or ethnic group.

Ribakoff’s statute was selected as the most effective and legally sound method by which to criminalize “racist” speech at an ADL-sponsored conference at Hofstra University in 1988. The goal of that conference, which brought together legal scholars from the U.S., Europe, Canada, and Australia, was to choose a statute that could pass legal muster in the U.S. and elsewhere.

Conference director Monroe Freedman (the Dean of Hofstra Law School) explained the purpose of the contest:

“We are looking for a model statute outlawing group defamation, that is, one that would permit prior restraint by public officials of speech that is defamatory of any minority group. The statute should be as broad as the drafters conclude is constitutionally permissible or, at least, arguably permissible.”

Ribakoff’s statute was chosen by the conference’s attendees, and tested in a moot court proceeding in which a fictional “white racist” and Holocaust revisionist named Jesse Stump was put on trial and convicted for his 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.

Ribakoff (at the time a student at Whittier College School of Law) was awarded $1,500 (about $3,000 in 2014 dollars) for his winning statute.

Sadly, in the years since his group defamation statute proved such a hit with those who favor restricting free speech, 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. If you have a high tolerance for pain, you can read Mr. Ribakoff’s California State Bar record here (one word — ouch!).

These days, Mr. Ribakoff has come to reject the “ADL-type thinking” behind anti-speech laws, and he admits that he only crafted the model statute for the money.

The fact that Ribakoff admits creating his “group defamation” statute merely for the money, and the fact that he has come to doubt the wisdom of his own creation, is especially tragic because the statute, and similar ones based on Ribakoff’s legal theory, have been adopted in quite a few countries.

In one recent high-profile case, Dutch politician (and critic of radical Islam) Geert Wilders was prosecuted using the group defamation statute. Europeans who have spoken out against unchecked immigration have also been hauled into court using the group defamation statute. And as recently as 2009, NYU Law School Professor Thomas Waldron, lecturing at Harvard as part of that university’s Oliver Wendell Holmes Lectures Series, vigorously advocated bringing group defamation laws to the U.S. Waldron lamented that, outside the U.S., group defamation laws are

“common and widely accepted. For us, that gives rise to a question about what the European or Canadian or New Zealand legislators think they are doing with these laws. Why have most liberal democracies undertaken to prohibit manifestations of hatred, these visible defamations of social groups, rather than permitting and tolerating them in the name of free speech?”

Which brings us to my interview with Joseph Meir Ribakoff – disbarred and doubting, opining on his metastasizing, monstrous creation, which you can read in its entirety, and exclusively, here: ModelStatute.

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David Cole: I’m curious how you heard about the Hofstra “group defamation” model statute contest, and why you decided to enter it.

Joseph 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.

DC: 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 am academic exercise for you?

JR: 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.

When I returned to my seat after being called up to receive my award, I found that my pants zipper was down.

DC: Have your views on “Group Defamation” changed in any way since 1988?

JR: 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 the 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 difference 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.

DC: Regarding Holocaust “denial,” where do you fall in the debate between those who say that the best response 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)?

JR: I believe in the American way.  I trust that John Q American is decent, honorable, and intelligent and can make a fair decision on his own without government intervention.

DC: 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?

JR: You raise an interesting point with that 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.

DC: From my experience, there were people in the ACLU who favored “hate speech” laws.

JR: As I recall, the [national] ACLU does not support hate speech laws, just the Southern California ACLU.  I  am a friend of Michael Klein and Eddie Tabash.  I was on the First Amendment Committee during the hate speech debate.  The 1st Amendment Committee opposed the So Cal ACLU board’s hate speech position.  I remember debating Sam Paz a couple of times over the hate speech codes.

DC: In the Canadian trials of Holocaust revisionist Ernst Zundel, the law allowed Zundel the right to try and prove the merit of his claims, as truth is always a defense against an accusation of defamation or “spreading false news” (the actual charge against Zundel). Zundel essentially put the Holocaust itself on trial, gaining more publicity for his views than he possibly could have if left alone by the government. Some called the trial a “circus.” Should there be any limits on how vigorously a defendant like Zundel can defend himself?

JR: None and there should be none.  A trial is put up or shut up time.  Zundel should have been allowed to put the holocaust on trial.  He lost, didn’t he?  The state answered him.  The trial became a podium for a new generation to learn about what really happened.  This is exactly the way it should be.  If the state cannot answer his challenge, then maybe there is merit to it.  I never want to restrict your right to defend yourself, even a miscreant like Zundel.  If you restrict Zundel’s right to challenge the state like this, then you are restricting everyone’s right to challenge the state.  The state can be wrong.  One of our important freedoms in keeping the state in check is the freedom to turn a trial into, as you would say, a circus.

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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Comments
3 Responses to “Architect of “Hate Speech” Laws Slams “ADL-Type Thinking,” Denounces Own Work”
  1. Conrad says:

    ‘…even a miscreant like Zundel.”

    I am familiar with the case of Mr. Zundel and I firmly believe that the true miscreants are the people that deported him to Canada and then to the pretend democracy of Germany.

  2. David says:

    Excellent article on the development of censorship and corrosion of Free Speech.
    What is interesting is the blurring of the boundary between “group defamation” and Revisionism.
    I wonder if Mr. Jesse Stump would have “beaten the rap” if he were tried on “Not Believing” parts of
    the standard Holocaust history?

  3. Helene says:

    Thank you for this article; and thank the two commenters for their thoughtful comments. It is an hono(u)r to read!

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