Free Speech, and Its Discontents

Posted on February 6, 2006

I’ve been holding back on saying anything about the ongoing controversy around the cartoon depictions of the prophet Mohammed recently run in the Dutch Danish (thanks to Sandy for correcting this in the comments) newspaper Jyllands-Posten because I didn’t want to read too much into what initially struck me as a tempest in a teapot. But now that the protests have reached such a high pitch that two protesters have been killed marching on Bagram Air Base in Afghanistan — and they’re still going on, so the potential exists for more casualties — I can’t imagine how anyone could say it’s not significant.

(The significance is underlined by the fact that Theo van Gogh, a Dutch filmmaker, was gunned down on the streets of Amsterdam in 2004 for having the unacceptable audacity to offend Muslims.)

There’s already been plenty of outrage voiced on both sides, so I’m not going to waste time venting my spleen. I’d rather chew on a question that I haven’t heard many people tackle directly — how a free press can co-exist with Islam, or indeed with any other culturally-sensitive minority group.

It seems to me that the basic problem that has spawned this situation is a fundamental mismatch in the two sides’ understandings of the social contract. To the paper and its defenders, “freedom” means freedom to: freedom to act as one wishes. To the outraged Muslims, “freedom” means freedom from: freedom from a culture that they see (with some justification) as perversely opposed to the values of their faith.

The only way to resolve the mismatch is to come up with a common understanding of the rights and responsibilities of citizens in a free society. I’m not going to pretend that I can bridge this gap with one blog post. But I would like to submit some ideas to move the discussion in that direction.

Let us, then, wrestle with the central question: what are the boundaries of free speech?

There are ideologues on both sides of this issue, and they are equally wrong. Fundamentalist Muslims who demand censorship of any publication that does not hew to their worldview in every detail — remember the Taliban? — clearly aren’t being realistic. But then, anyone who says that free speech has no boundaries isn’t being realistic either. The classic reproof of this position was summarized neatly by Supreme Court Justice Oliver Wendell Holmes, Jr. in the 1919 case Schenck v. United States:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

In other words, if a reasonable observer could conclude that your speech has a high probability of provoking actions that lead to harm to others, the government has the right to step in and stop your speech before you make it. It doesn’t have to wait until you cause a panic to act.

(One thing to be clear about — this is not the standard that we in the United States live under today. Holmes’ Schenck test was overturned fifty years later in Brandenburg v. Ohio, which ruled that the state could not act to stifle speech “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. Either way, however, it’s clear that the limits of “free” speech fall somewhere short of absolutes.)

So if speech is neither completely subject to minority whim or completely free, what is it?

SOME PRINCIPLES

To figure that out, we will have to attempt to derive some principles by which we can judge how close we are treading to the limits. These principles are not based on the laws of any particular society; instead, they are an attempt to describe how an ideal Platonic regime of “free speech” might work. Disclaimer: I am not a lawyer. I did, however, crush the LSAT 🙂

First, it seems clear that you cannot claim to have a free press unless citizens can publish without prior approval. This may seem obvious, but ask someone who grew up in Saddam Hussein’s Iraq or Leonid Brezhnev’s Soviet Union if they were free to publish whatever they wanted.

While a free society allows anyone to publish, however, it does insist that publication is an act that can carry legal and/or financial consequences. If you publish a seditious document, you are committing sedition; if you release a trade secret, you can be held liable. Because a free society devolves the power to publish to the individual, it attaches the responsibilities that come with publication to the individual as well.

It is a necessary corollary, then, that by publishing, the citizen accepts the consequences that might derive from the act of publication. You cannot disclaim your ownership of an idea once you have published it.

Speaking broadly, there are two types of consequences you can incur by publishing. These are:

• Public sanction: These are the consequences you can incur by breaking the law, divulging national security secrets, or otherwise crossing the government.
• Private sanction: These are the consequences you can incur by crossing private parties: individual citizens, groups/associations, corporations, and any other parties who do not directly wield the force of law and the power of the state.

Since it was the reaction of religiously-minded citizens that prompted this line of inquiry in the first place, we shall focus on private sanction.

So far, we have focused on the rights of the publisher. Let’s turn around for a moment and take a look at the rights of the audience. Do you have any? Can you legitimately push back on speech that offends or angers you?

I would argue that you do, and that you actually have a significant scope in which you are free to do so.

First, you as a consumer of information have the right to apply a limited market remedy by ceasing to purchase the publication in question. This will deprive them of revenue from your purchases, and stop the offending material from crossing your desk.

(This is another point that may seem obvious, but it has an important corollary that points up its importance: nobody can force you to read anything. There is no national newspaper, or any other publication, that you are required by law to subscribe to; the law reserves the right of choice in your hands.)

While it might be emotionally satisfying, this limited market remedy is unlikely to directly affect the publication’s bottom line. So can you take it further? Yes. At the next level, you have the right to counter speech with speech — you can directly address the offensive material with material of your own. You will not be prevented by government from doing so.

Should you wish to escalate further, you have the right to join in league with other like-minded citizens to express your disapproval together. Such organizations can multiply the impact both of market remedies (by organizing coordinated boycotts instead of scattered cancellations) and speech remedies (by providing a platform from which you can get your message out).

Some would argue that this last right unacceptably limits free speech, because it could potentially lead to censorship by market pressure; publications that see large chunks of their readership drop away due to an offense to a community might self-censor to avoid further damage to their balance sheet. I don’t think this threat outweighs the need of citizens to have a way to express their own viewpoints in opposition. Pulling your business from a publication is a legitimate response if you feel wronged by the publication; if so many people feel wronged that the publication can’t stay afloat, perhaps it should re-evaluate its position in its community.

WHAT YOU CAN’T DO

So we’ve covered the rights of publishers and readers. There’s one place we have yet to go: the areas for each that are beyond the boundaries. What behavior isn’t acceptable in our ideal regime?

Let’s start with publishers. The big one is pretty clear from the arguments in the cases I cited above: it is not acceptable to publish material that you know will directly result in or provoke violent harm to another. Despite the schoolyard rhyme, sometimes words can cause physical harm just as much as sticks and stones do.

(This is a fine line to walk. An example: a white-supremacist group of long standing called the White Aryan Resistance publishes a magazine, “Insurgent”, which they advertise as “the most racist newspaper in the world”. Their positions as expressed in the magazine and their Web site are utterly toxic, full of the crudest race-hate. However, as distasteful as their rhetoric is, the question we must ask is: is it likely to provoke real, tangible harm against the people the group rails against? Or is this just a case of maladjusted nuts blowing off steam in print?)

Turning to readers, the big line is pretty clear: you cannot take force into your own hands to stop the distribution of material that offends you. You can gather together with others who agree, and if you wish you can even march on the publisher’s building in peaceful protest. But if your protest threatens mob violence — if it steps beyond the market and speech remedies outlined above and advocates instead for violent action against specific named parties — you have crossed the line.

Which leads to my final principle, and the one that the most people will have trouble swallowing: you have no right to be protected from offense. If you are offended by a publication, there are a range of things you can do to try and counter its message, or pressure the publisher so that they don’t offend you in the future. But you cannot demand that you be pre-emptively shielded from any materials that might offend you; it’s simply incompatible with the principle that citizens can publish without seeking prior approval.

Will these principles defuse the situation that the Mohammed cartoons have created? Probably not. But today’s crisis is only a symptom of a broader problem — those conflicting notions of freedom — that we’re going to be finding ourselves grappling with more and more in the years to come. Discussions like this can, I hope, help start us down a path that will eventually lead to the solution of the underlying issue.

Those are my ideas, anyway. What do you think?

UPDATE (Feb 7 2006): Post edited to correct my confusion — for some reason I thought Jyllands-Posten was a Dutch newspaper, when in fact it is Danish. My apologies for the mix-up.

Some other opinions on this from around the Web:

A diarist on Daily Kos thinks the whole controversy has been artificially inflated by the Saudi government to distract attention from yet another stampede at the Hajj, the annual pilgramage to Mecca that is one of the central pillars of Islamic faith. This year’s stampede killed 345 people; deadly stampedes have occurred every couple of years for a decade at least. The Saudis are responsible for ensuring the safety of pilgrims and managing foot traffic, so it would make sense that they would have an interest in diverting people’s attention.

Slate has a roundup of reactions from Arab journalists to the controversy. They seem to be under the impression that anti-Semitism and Holocaust denial does not find its way into print in Europe and the U.S. Um, no.

Reason has a good collection of links to other stories about the protests/riots, including this priceless cartoon.

Juan Cole reminds the rest of us not to feel too superior to Muslims on this issue:

I’ve gotten a lot of comments by email which have the structure, “Yes Europeans would be offended by X, but would it cause violence?” I presume these readers somehow consider the Irish not really Europeans.