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.
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?
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.