Page 29 - Delaware Lawyer - Fall 2019

NOTES
1. Gersh v. Anglin, 2019 WL 3755265 (D. Mont. Aug. 8, 2019).
2. Gersh v. Anglin, 353 F. Supp. 3d 958, 965 (D. Mont. 2018).
3. 506 US. 377 (1992).
4. See R.A.V. v. St. Paul, 505 U.S. 377,
393-96 (failing to discuss participation
or equality); CATHARINE A. MACKINNON, ONLY WORDS 71 (1993); John A. Powell, As Justice Requires/Permits: The Delimitation of Harmful Speech in a Democratic Society, 16 LAW & INEQ. 97, 101 (1998).
5. Iancu v. Brunetti, 139 S. Ct. 2294, 2304 (2019) (Breyer, J., concurring in part and dissenting in part).
6. United States v. Alvarez, 567 U.S. 709,
730 (2012) (Breyer, J., concurring in the judgment).
7. Council of Europe, Say No to Racism,
Mar. 16, 2015, https://www.coe.int/ en/web/portal/full-news/-/asset_ publisher/Dgh51iCGvfbg/content/ say-no-to-racism?inheritRedirect=false &redirect=https%3A%2F%2Fwww.coe. int%2Fen%2Fweb%2Fportal%2Ffull- news%3Fp_p_id%3D101_ INSTANCE_Dgh51iCGvfbg%26p_p_ lifecycle%3D0%26p_p_ state%3Dnormal%26p_p_ mode%3Dview%26p_p_col_id%3Dcolumn- 4%26p_p_col_count%3D1.
8. Des Herm D, Bundesverfassungsgericht, https://www.bundesverfassungsgericht.de/ SharedDocs/Entscheidungen/DE/2016/06/ r k 2 0 1 6 0 6 2 9 _ 1 b v r 2 6 4 6 1 5 . h t m l .
9. German Court Sentences Australian Holocaust Skeptic [Fredrick Töben], http:// vho.org/GB/Journals/JHR/18/4/Toeben2. html.
10. Committee on the Elimination of Racial Discrimination, Eighteenth to Twentieth Periodic Reports of Austria, http://www. bayefsky.com/summary/austria_cerd_c_ sr2190_2012.doc.
11. Article 19, Country Report: AUSTRIA RESPONDING TO “HATE SPEECH” 18-21
h t t p s : // w w w . a r t i c l e 1 9 . o r g / w p - c o n t e n t / uploads/2018/09/Austria-Responding-to- Hate-Speech-.pdf
Of Counsel continued from page 28
12. RICHARD DELGADO & JEAN STEFANCIC, UNDERSTANDING WORDS THAT WOUND 196 (2004).
13. S. J. Roth, Curbing Racial Incitement
in Britain By Law, 22 Israel Y.B. HUM. RTS. 193, 201 (1992); Kenneth Lasson, Racism in Great Britain, 7 B.C. THIRD WORLD L.J. 161, 170-71 (1987); E. Barendt, Freedom of Speech 163-64 (1985); Article 19, Germany, h t t p s : // w w w . a r t i c l e 1 9 . o r g / w p - c o n t e n t / uploads/2018/07/Germany-Responding- to-%E2%80%98hate-speech%E2%80%99-v3- WEB.pdf.
14. Public Order Act 1986, https://www. legislation.gov.uk/ukpga/1986/64/pdfs/ ukpga_19860064_en.pdf; PETER HALSTEAD, UNLOCKING HUMAN RIGHTS 328, 334 (Routledge 2013) (2009); Umran Javed: Jailed for Terror Material Found on Computer, h t t p s : // w w w . b b c . c o m / n e w s / u k - e n g l a n d - derbyshire-19645280 (Sept. 19, 2012); R v Abdul Saleem; R v Abdul Muhid; R v Umran Javed: CA (Crim Div) (Lord Philips, Lord Chief Justice, Mr Justice Davis, Mr Justice Simon): 30 October 2007, in Law Reports, THE LAW SOCIETY GAZETTE, Nov. 15, 2007,
h t t p s : // w w w . l a w g a z e t t e . c o . u k / l a w / l a w - reports/4506.article.
15. R v El-Faisal (Abdullah Ibrahim) (Reasons for Dismissal of Appeal) [2004] EWCA Crim 456 and R v Abu Hamza [2006] EWCA Crim 2918, [2007] QB 659 considered.
16. Racial and Religious Hatred Act 2006, http://www.legislation.gov.uk/ukpga/ 2006/1/pdfs/ukpga_20060001_en.pdf. 17. Sections 29B-29F, https://www.
l e g i s l a t i o n . g o v . u k / u k p g a / 1 9 8 6 / 6 4 /c o n t e n t s ;
First Criminal Conviction in Britain for
the Offence of Stirring Up Hatred on the Grounds of Sexual Orientation, https://www. equalrightstrust.org/news/first-criminal- conviction-britain-offence-stirring-hatred- grounds-sexual-orientation & https://www. equalrightstrust.org/ertdocumentbank/ UK%20Crown%20Court%20Case%20 summary.pdf.
18. Denmark Criminal Code, Order No.
909 of September 27, 2005, as amended by Act Nos. 1389 and 1400 of December 21, 2005 https://webcache.googleusercontent. com/search?q=cache:OvJxarCKBVMJ:htt
p s : // w w w . l e g i s l a t i o n l i n e . o r g / d o w n l o a d /
action/download/id/6372/file/Denmark_ Criminal_Code_am2005_en.pdf+&cd=2&hl =en&ct=clnk&gl=us&client=firefox-b-1-d. 19. Const. ch. 2. § 12 (Fin.), available
at http:// www.finlex.fi/en/laki/ kaannokset/1999/en19990731.pdf.
20. Penal Code ch. 11, § 8 (Fin.), available
at https://www.finlex.fi/en/laki/ kaannokset/1889/en18890039_19951010. pdf (“A person who spreads statements or other notices among the public where a certain race or national, ethnic or religious group or a comparable group is threatened, slandered or insulted shall be sentenced for ethnic agitation to a fine or to imprisonment for at most two years.”). Actionable statements can be made “verbally, in writing, by illustration or by gestures.” Lot Klo, Mikko Ellil, Ethnic Agitation, Preliminary Investigation, Laiva on Tynn (Apr. 5, 2007, 7:02 PM), http://laivaontaynna.blogspot. com/search/label/english.
21. Straffelodn [Penal Code] 13:135a
(Nor.). A translation of section 135a is available at https://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/ PDFFILES/NOR_penal_code.pdf.
22. Brottsbalken [BrB] [Criminal Code]
16:8 (Swed.), available at https://www. government.se/contentassets/5315d270 76c942019828d6c36521696e/swedish- penal-code.pdf; Prosecutor Gen. v. Green, Nytt Juridiskt Arkiv [NJA] [Supreme Court] 2005-11-29 p. 4 B1050-05 (Swed.), available at https://opil.ouplaw.com/view/10.1093/ law:ildc/200se05.case.1/law-ildc-200se05. 23. The Swedish Penal Code, https://www.
g o v e r n m e n t . s e / 4 9 c d 6 0 /c o n t e n t a s s e t s / 5 3 1 5 d 27076c942019828d6c36521696e/swedish- penal-code.pdf.
24. Government of Sweden,
Summary (2019), https://www. government.se/49c405/contentassets/ e077c68e03f2408a81b7b35d0e4ef004/ racist-symbols.-review-of-practice-and- analysis--summary-in-english-sou-201927. 25. Government of Sweden, Measures to Combat Antisemitism and Increase Security, (Feb. 7, 2019) https://www.government.se/ government-policy/democracy-and-human- rights/measures-to-combat-antisemitism-and- increase-security.
part he is devoted and capable at the highest level. He has recently become more engaged with Judaism (and, yes, he has served in leadership roles in his Temple), where he finds both a spiritual and an intellectual connection, as well as, again, a social connection. He is an avid runner and kayaker and a world traveler — sometimes combining these, as when he and his wife, Marion, kayaked in Iceland a few summers ago.
Larry is also a talented and dedicated musician. He has been playing violin since he was a young child, and has played every chance he got: in high school, through college and law school, and in Wilmington, where he has played in the Community Orchestra and elsewhere. And as with everything else, he is no dilettante — he practices assiduously and plays in a variety of settings and a very broad range of musical styles, from Klezmer to Gilbert and Sullivan to religious music in synagogues and churches. He has said that his favorite piece of music is whatever he’s playing at the moment. He has recently started playing cello, just to expand his range!
Larry is on the verge of retiring, which is great for his wife Marion and for his expanding family, but certainly a loss for the Dela- ware legal community. Even so, he’s unlikely to escape the reporters, colleagues, judges and others who continually seek his wise counsel. But that’s ok. He’ll always find a way to do it all and do it well, and with a smile. And then he’ll return to the important business of deciding whether to go into the water one more time before the sun goes down.
FALL 2019 DELAWARE LAWYER 27