Peter Berger reported the following in The American Interest (which I edited and condensed, and added the last paragraph as my take):
Judge Martin Hoffman, of a Dallas County civil district court, dismissed a lawsuit brought by Mikey Weinstein against Gordon Klingenstein. Weinstein, a former Air Force lawyer, is an avowed atheist and founder of the Military Religious Freedom Foundation, which opposes what it claims to be unconstitutional religious activities in the armed forces. Klingenstein is a former Navy chaplain and an ordained minister of the Dallas-based Full Gospel Church, a very conservative Protestant congregation. What led to the lawsuit was the fact that Klingenstein had made public a so-called “imprecatory prayer” directed against Weinstein—that is, a prayer that asks God to harm somebody. Supposedly, Psalm 109.
Subsequently, unpleasant things happened to Weinstein and his family—death threats, vandalism, a dead animal left outside the house. The legal issue came down to the question whether Klingenstein’s curse caused these actions.
Judge Hoffman ruled that such causation could not be established. Klingenstein did not drag, or enjoined others to drag, the carcass to Weinstein’s house, or did not otherwise directly threaten or harm him. Therefore, the curse fell under the category of protected speech. Apparently an appeal is being planned. But for the time being, cursing people is legal in Texas.
Judge Hoffman followed an established tradition in American law: Speech, no matter how offensive or hurtful, is protected under the first amendment—unless it directly threatens or harms the targeted individuals. A classical case for this legal doctrine was the 1977 incident in Skokie, Illinois, where the United States Supreme Court ruled that a group that called itself the National Socialist Party of America had the right to parade with full Nazi regalia through the streets of this largely Jewish suburb of Chicago—despite the fact that one in six inhabitants was a Holocaust survivor. The same doctrine was invoked when the Supreme Court ruled that a Protestant fundamentalist group had the right to demonstrate at military funerals with the message that God was punishing America for its sins—despite the fact that this action inflicted great hurt to the grieving families. I wonder whether this doctrine will come unglued, as the new concept of “hate speech” makes its way through the courts: Could not an atheist claim that a ceremonial curse constitutes “hate speech”? There is also the delicious irony in the fact that, if Weinstein had stipulated that a curse in the name of God could have real effects in the empirical world, he might not have won in a Texas court in 2012, but he would surely have won in a Salem, Massachusetts court in 1692—though thereby implicitly denying his atheism. (Of course both defendant and plaintiff might have been hanged eventually, the former for witchcraft, the latter for atheism.)
The United States is practically alone in the world when it comes to freedom of expression. The Skokie parade alluded to would be punishable by up to five years in prison in Germany and Austria. It would be also harshly punished in most European nations, and the rest of the world. , Even our supposedly liberal neighbor to the north proscribes so-called “hate speech.” This nearly absolute freedom of expression is part of American exceptionalism.
Berger’s complete AI column is here