Letting Murderers Write the Law: Stop Calling for Less Free Speech

The Westboro Baptist Church (godhatesfags.com) pickets the funerals of soldiers killed in Iraq and Afghanistan because they fought for a country that tolerates homosexuality.  Church members spend their time shouting slogans and waving signs reading God is Your Enemy, Pray for More Dead Soldiers, and Thank God for IEDs.  Unlike the YouTube community, the grieving families cannot ignore these outrageous insults shouted directly at them at their loved ones’ funerals.  The burial of their sons and daughters is tarnished forever.

Free Speech

In 2011, the U.S. Supreme Court ruled 8-1 in favor of the Westboro Baptist Church’s right to hold these protests at funerals.

I consider myself a First Amendment purist, but the case of Westboro Baptist Church gave me pause.  The case of The Innocence of Muslims does not.

In the aftermath of the embassy attacks in Benghazi, many promising things have happened.  Libyan protesters drove the militia thought to be responsible for the killing from Benghazi.  Muslim political and religious leaders condemned violence as a response to speech, even blasphemous speech.  A public conversation seems to be unfolding within the Islamic world about ways to respond to blasphemy, and it’s the first one I’ve ever seen.

At the same time, some Americans have begun calling for a narrower reading of the first amendment.  Keep in mind that this conversation is only happening because of violence.

Here are some of the arguments for narrower freedoms:

Argument 1: We’re an outlier globally.  Political Scientist Erik Bleich made this argument in an al-Jazeera column last week.  Most Western countries, he says, have recognized the need for common-sense restrictions on free speech as a way of maintaining order.  He points out that even Danish government, in the wake of the Jyllends-Posten cartoon scandal, suspended the broadcasting license of a radio announcer who called for exterminating some Muslims.

Incitement is different from mockery and insult.  The Innocence of Muslims was not incitement. The Danish government did not punish Jyllends-Posten, so his example is irrelevant.

Next, Bleich gives us a preview as to what sort of standard a new free speech restriction might employ.  He cites polls to show that most Americans believe “that people should not be allowed to say things in public that might offend racial groups” (Emphasis mine).  Well, what might that include?  And what federal agency will pre-screen YouTube videos and render decisions?  And what will the punishment be for saying something that might offend racial groups?

Mr. Bleich is right that most states do not interpret the First Amendment as broadly as we do.  But what if we apply his lemming-like thinking to other areas of social policy?  For example, a majority of people in the world also oppose homosexuality—not gay marriage, but homosexuality itself.  That doesn’t make it right to do so.

Argument 2: The sacredness of the First Amendment emerged by accident.  Eric Posner’s astounding column in Slate argues that, while the First Amendment was written quite some time ago, no one really cared until the 1960s, when liberals and conservatives began trying to appropriate it to silence their cultural foes.  Therefore, our attachment to the First Amendment is nothing more than a historical contingency.

Well, so what?  What social norms aren’t historically contingent?

Posner also criticizes the U.S. government’s “timid” handling of Google , which amounted to merely asking Google to check the video again for terms of use violations.  It seems he wants not only for laws to change, but for the President to break them in the meantime.

He ends with this:

“And so combining the liberal view that government should not interfere with political discourse, and the conservative view that government should not interfere with commerce, we end up with the bizarre principle that U.S. foreign policy interests cannot justify any restrictions on speech whatsoever. Instead, only the profit-maximizing interests of a private American corporation can.”

Oh, please.  This is the kind of paragraph that only appeals to people who automatically get angry when they read the word “corporation.”  The corporation didn’t restrict speech.  It just made a decision about where it would project that speech itself.  That has nothing to do with restricting the filmmaker’s rights—Google just exercised its own.

Most tellingly, Mr. Posner describes The Innocence of Muslims as “a video that, by the admission of all sides, has no value whatsoever.”  This standard is clearer than Bleich’s: if no one will admit that a piece of expression has value, the maker goes to jail!

By making “value” his standard, Mr. Posner shows that he has no understanding of the principle of free speech: the premise isn’t that all expression has value, but that no one deserves the power to assign that value on our behalf.

Argument 3: The West is hypocritical.  Two recent examples of this argument: Many, including Hezbollah leader Hassan Nasrallah, have pointed out that many Western countries imprison Holocaust deniers but not blasphemers against Islam.  They are right: there is a hypocrisy here.  But it should be resolved by legalizing Holocaust denial, not by banning blasphemy.  Also, for what it’s worth, Holocaust denial is legal in the United States.

Second, Egyptian journalist Mona el-Tahawy was just arrested for spraying graffiti on an ad in the New York subway systems which calls Palestinians “savages” and calls for a fight against “jihad.”  Facebook and Twitter abound with condemnations of this double standard; why arrest el-Tahawy but let those responsible for the poster off the hook?  Well, the posters are vile, but it’s not hypocritical to arrest al-Tahawy.  Whatever you think of the poster or of her actions, graffiti-spraying on public property is against the law—a law that the racists who bought that ad space didn’t break.

“No amount of violence should intimidate the United States into changing its laws,” writes Erik Bleich, right after he advocates changing the laws.  I believe that Mr. Bleich, Mr. Posner, and the many other writers advocating less freedom of speech really think they haven’t been intimidated.  But they have.  They aren’t worried about speech that merely expresses hatred.  For them, unacceptable speech is defined by the violent reaction it incurs.  That’s called letting murderers write the law.

6 thoughts on “Letting Murderers Write the Law: Stop Calling for Less Free Speech

  1. Another good blog. I’m more or less with you on this.

    But I think you miss an important point, perhaps deliberately so for brevity’s sake. Even those in the US don’t have an absolute right to freedom of speech. You can’t incite immediate violence – see http://en.wikipedia.org/wiki/Fighting_words – and you can’t publish child pornography. Quite right, in both cases, I think. But from then on, everything is degrees of grey.

    And I’m also with you that holocaust denial shouldn’t be criminal (against decency, yes; illegal, no). But I don’t agree that it’s hypocrisy to have holocaust denial but not laws against blasphemy. The holocaust is a specific, horrendous act and it’s pretty easy to be clear what is or isn’t holocaust denial. Blasphemy and other such ‘offensive language’ is in the eye of the beholder. Holocaust denial laws don’t stop you making as much fun of the Jewish God as the Muslim or Christian God, or Hindu gods for that matter.

    • boazmunro says:

      Thanks for reading.

      It’s true that there are limits on speech/expression in U.S. law. An important distinction for me is the one between speech/expression generally (which could be said to include child pornography and incitement) and the expression of opinions. Neither child pornography nor incitement are illegal on the grounds that they hurt people’s feelings.

      Someone might respond that incitement and anti-Muslim speech both aim to create violence. That’s a good point, and it makes me wonder if some forms of incitement should also be legal. But the basic distinction–calling for violence vs. not calling for violence–remains.

      Finally, I agree that Holocaust denial is different from blasphemy in the way you describe–easier to identify and prosecute. However, like you, I still think banning it is wrong. It also ultimately hurts the cause of those who seek to comemmorate the Holocaust by making them seem like they need to silence their adversaries by force.

      Thanks again!

  2. boazmunro says:

    Comment from a reader, with my response following:

    “I agree with your conclusion, but it seems like a caricature of some competing arguments:

    First, the fact that the US is an outlier and that its past does not fit its present are both very important and relevant facts in evaluating the first amendment. People claim that free speech is a sacred value for people in the US (but it wasn’t before) or in the West (but it isn’t now in Europe). People also regularly claim slippery slope arguments about how restricting the Klan will lead to censorship of all dissenting perspectives–but that is challenged by the existence of plenty of countries with active hate speech laws who have livelier cultures of dissent than here.

    Second, the point about Google’s ‘rights’ versus the government’s ‘rights,’ and about Tahtawy’s ‘rights’ versus Geller’s ‘rights’ is entirely a matter of question-begging. You’re saying that the property owners—Google and NY City/whoever-pays-for-ad-space—should determine what gets said with the property/on the property. That’s a simple enough rule. The critics, at least in the subway ad case, are saying the rules should be otherwise—that dissenters, for instance, might perhaps claim a right to write on the walls without paying the owner a disposition or allowance. That’s a messier rule (or more accurately, an insurgent challenge to the present set of rules), but it’s also a more egalitarian one, that potentially presents more speech, rather than less.

    (The google vs. government argument presents two equally simple and inegalitarian principles–property vs. government objectives. But Posner’s point about corporations is that there’s nothing so inherently noble in favoring the former.)

    Third, murderers already do write the laws. Mainly the strong ones who run the state, but also the little ones, the pirates and brigands. Any law aimed at social order is about placating potentially disruptive classes. Often that means potentially violent classes. Anyone advocating a total ban on guns would have to contend with the immediate social order that such an initiative would cause. That is a form of caving-in-to-dangerous-people-because-they’re-dangerous, but it is also inevitable and sometimes wise.

    Anyway, as I said, in the particular case of ‘offenses to Islam’ I think the balances weigh against state censorship, but the absolutism I often hear on the subject from liberals seems deeply flawed in its premises.”

    • boazmunro says:

      My response:

      1(a): Free speech is a sacred value for me, even though it’s a historical anomaly. The idea of being put in jail for expressing an idea is disgusting to me. This is undoubtedly a function of my historical time and place. It comes from my belief that all of us have basically the same mental capacity and the same information, and that therefore we all have something to learn from each other.

      I consider a crime something that does clear, unavoidable harm to someone. If you stab someone, they can’t ignore it. If you steal their money or defraud them, they suffer materially. But if you insult their religion, they only are as hurt as they choose to be.

      1(b): I actually am worried about a slippery slope, but it’s not the main problem. Even mild restrictions such as the ban on Holocaust denial are very troubling to me. There’s a circular logic to deeming an idea worthy of being banned. For example, if I say that it’s unfair to ban Holocaust denial, the response might be that everyone knows Holocaust denial is abhorrent. But then why do we need a ban?

      2(a). The difference between corporations restricting speech and governments doing so is that governments do so punitively and by force. They don’t just prevent people from expressing their ideas, they imprison them for doing so. Legal penalties involve the forcible suspension of basic freedoms by a sovereign coercive apparatus.

      But Google was merely exercising the same freedoms Sam Bacile was. No one was fined or imprisoned.

      There are some rights here that apply both to the government and corporations. The government is welcome not to pay for The Innocence of Muslims to be spread around the internet. So is Google.

      There are some common restrictions, too. The government is not welcome to punish people by force for what they say, write, or film. Neither is google.

      But the Constitution restrains the government, not Google. Google can be selective about speech. It is not Constitution-bound to allow equal access to everyone’s speech. On the other hand, it can’t throw anyone in jail.

      2(b): I take the graffiti issue as more of a property rights/municipal law issue than a free speech one. The bottom line is no one was kept from expressing an opinion. Spray-painting “Amen!” on the poster would also have been illegal. It probably would not have led to an arrest, but only because el-Tahawy would have been less likely to meet with the confrontation that got the cops’ attention.

      3. “Murderers already do write the laws” is too broad a claim for me to really work with. What’s your definition of murderers?

  3. Benjamin Douglas says:

    Your definition of ‘force’ presupposes property rights as natural and valid. If Google has the right to control what it does in fact control, then it is ‘not being coercive.’ But if you don’t assume that, then it is coercive. You have Google controlling a bunch of things (internet space, physical space, other stuff), backed by the force of the state, which is ready to shut down or imprison anyone who interferes with Google’s control of those things.

    So if Google takes something down, they do that because they have a state-backed right to do so. If the person just says, ‘screw you’ and doesn’t comply, then that person can be reported to the police and imprisoned. The whole scheme is based on the force of the state.

    Now, of course, you can still distinguish direct state orders from restrictions by property owners. People who dislike Google can use other means of spreading ideas online. People who dislike Geller’s ads can buy their own. In the same way that people who suffer workplace harassment can find another job. That is, they can in theory, but often not in practice.

    • boazmunro says:

      Well, then our difference on this point isn’t about free speech or religion, but simply about whether one recognizes state sovereignty or not. It’s no secret that the state uses force to enforce “schemes”, or contracts, or property ownership. That’s the very point of a state.

      It’s true that in practice, Google barring a video hampers that video’s ability to be seen. I won’t use technicalities to dismiss that reality. But you should acknowledge the substantial distinction that remains: Google’s decisions affect the message only and STILL don’t utterly prevent its dissemination, whereas a government penalty involves force against the whole person simply BECAUSE of the message.

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