Monthly Archives: March 2015

Charlie Hebdo and the Importance of Self-Censorship: Should a magazine be allowed to publish inflammatory cartons and endanger innocent lives? by Anna Carroll

Charlie Hebdo and the Importance of Self-Censorship: Should a magazine be allowed to publish inflammatory cartons and endanger innocent lives?

by Anna Carroll

 

Charlie Hebdo, a French satirical magazine, published an issue depicting a caricature of the Muslim prophet Muhammad on its cover, a representation that is forbidden by some interpretations of Islamic law. Following the publication of this cartoon, the offices of magazine were firebombed in a terrorist attack. Fortunately, no one was injured in the attack as it took place in the early hours of the morning before workers arrived. This event took place in 2011.[1]

A year later, Charlie Hebdo depicted images of Mohammad naked even after the French government advised against publication. Fearing another attack, the government closed down embassies and schools and heightened security in Paris.[2]

Just two months ago, two Islamic extremists invaded the offices of Charlie Hebdo and shot and killed 12 people.  One of the attackers was recorded shouting, “We have avenged the Prophet Muhammad! We killed Charlie Hebdo.”[3] This horrific tragedy has elicited many differing viewpoints around the globe. Following the incident, the outcry on social media was particularly pronounced, with many French and other citizens stating, “Je Suis Charlie,” which means, “I am Charlie” in English. A week after the incident, Charlie Hebdo once again published an issue depicting the Prophet Muhammad displaying a sign that reads “Je Suis Charlie.”[4]

The United States has long valued the importance of freedom of speech, indeed embodying its protection in the First Amendment in the Bill of Rights. However, throughout the years, the Supreme Court has read various limitations on this right. In the 1969 case Brandenburg v. Ohio, the Court and addressed speech likely to lead to incitement and held that “in order for government suppression of speech to be constitutional, the government must demonstrate three elements: (1) imminent harm from the speech, (2) a likelihood that the speech will produce illegal action, and (3) an intent to cause imminent illegality.”[5] The justification for prohibiting speech under the Brandenburg doctrine is the government’s interested in protecting the public from “clear and present danger.”[6] Furthermore, “in determining whether there is a clear and present danger justifying limitation on free speech, the court must inquire in each case whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”[7] The caricatures published by Charlie Hebdo would seem to fall under the “clear and present danger” test. Charlie Hebdo had been attacked before for publishing similar images. The offices were on notice of the very real possibility that another attack might occur and the French government even urged the magazine to refrain from publishing images of the Prophet Muhammad.

The Supreme Court has yet to hear a case involving facts parallel to the Charlie Hebdo situation. In Holder v. Humanitarian Law Project, the Supreme Court did uphold restrictions on speech and publication of materials that would provide foreign terrorist organizations with legal support.[8] The legal support in question was aimed at informing the terrorist organization on how to “follow and implement humanitarian and international law” with the hope of “impact[ing] peaceful resolutions of disputes.”[9] Even so, the Supreme Court recognized that providing “material support” to terrorist organizations could potentially free up terrorist funds that could be used in furthering illegal objectives.[10] While Holder v. Humanitarian Law Project is an important case on limiting speech in order to prevent the growth of terrorist organizations, it offers little guidance on how to deal with freedom of speech in terms of imminent terrorist attacks.

Hate speech laws in the United Kingdom are more expansive and clearer than similar laws in the United States.[11] The Crown Prosecution Service states on its website “that while ‘free speech includes the right to offend . . . there have been prosecutions for deeply insulting behavior. This is behavior which falls short of a desire to commit violence but is nevertheless threatening, abusive or insulting, and intends to stir up racial hatred.’”[12] Although the illustrators of the cartoons in Charlie Hebdo likely did not intend to commit violence themselves, based on past reactions to the cartoons, they were likely aware that further insulting depictions of the Prophet would “stir up racial hatred.”

Even if the cartoons by Charlie Hebdo are considered protected speech, public concern weighs in favor of self-censorship. The 12 people who were killed in the Charlie Hebdo offices might have been willing to sacrifice their lives for the publication but they were not the only lives lost or destroyed that fateful day. The two terrorists took more lives in their escape, and another gunman took hostages at a Jewish supermarket in Paris and demanded that the initial attackers be allowed to go free.[13] Should ordinary citizens’ lives be put at risk to protect speech that does not contribute to society but rather creates hatred?

As members of society, the people in charge at Charlie Hebdo should have seriously considered the potential implications of publishing offensive images that had been known to incite violence in the past. Freedom of speech is just as important today as ever, but a lot can be said for self-censorship when it saves lives.

[1] French Satirical Paper Charlie Hebdo Attacked in Paris, BBC News (Nov. 2, 2011, 7:13 AM), http://www.bbc.com/news/world-europe-15550350.

[2] Nicholas Vinocur, Magazine’s Nude Mohammad Cartoons Prompt France to Shut Embassies, Schools in 20 Countries, Reuters (Sept. 19, 2012, 8:04 AM), http://news.nationalpost.com/2012/09/19/magazines-nude-mohammad-cartoons-prompt-france-to-shut-embassies-schools-in-20-countries/#__federated=1.

[3] Cassandra Vinograd et al., Charlie Hebdo Shooting: 12 Killed at Muhammad Cartoons Magazine in Paris, NBC News (Jan. 7, 2015), http://www.nbcnews.com/storyline/paris-magazine-attack/charlie-hebdo-shooting-12-killed-muhammad-cartoons-magazine-paris-n281266.

[4] Laurence Thomann, Charlie Hebdo ‘Survivor’s Issue’ to Sell Outside France, Business Insider (Jan. 10, 2015, 7:23 AM), http://www.businessinsider.com/afp-charlie-hebdo-survivors-issue-to-sell-outside-france-2015-1.

[5] Catherine Blue Holmes, Quran Burning and Religious Hatred: A Comparison of American, International, and European Approaches to Freedom of Speech, 11 Wash. U. Global Stud. L. Rev. 459, 464 (2012).

[6] 16B C.J.S. Constitutional Law § 834 (2015).

[7] Id.

[8] Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

[9] Daphne Barak-Erez & David Scharia, Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law, 2 Harv. Nat’l Sec. J. 1 (2011).

[10] Humanitarian Law Project, 561 U.S. at 30.

[11] Holmes, supra note 5, at 472.

[12] Id. at 473.

[13] Charlie Hebdo Attack: Three Days of Terror, BBC News (Jan. 14, 2015, 12:55), http://www.bbc.com/news/world-europe-30708237.

Advertisements

Charlie Hebdo and Free Speech – Why the Cartoons Should Be Protected Speech By Joel Schneider

Charlie Hebdo and Free Speech – Why the Cartoons Should Be Protected Speech

By Joel Schneider

The Charlie Hebdo attack was a tragedy. Such an event no doubt inspires a broad range of emotions: anger, fear, disgust, shock, or any combination thereof. One natural reaction to such a display of “barbarism” is doubt, doubt about the relative worth of speech that can be the rationalization for violence like what took place in Paris in January of this year. While it can be wise to re-evaluate one’s position in the face of adversity, analysis should end in a commitment to speech that is as unburdened as possible. Ultimately, democratic governments should and must protect speech like Charlie Hebdo’s cartoons if they are to remain consistent with their principles.

It has been said that “free trade in ideas” is the best way to reach the “ultimate good desired.”[1] Endeavoring to allow a truly free exchange in ideas is, as Justice Holmes pointed out, an “experiment.”[2]  At the heart of this experiment is a broad freedom to speak and express, a freedom that acts as a shield “to many types of life, character, opinion and belief,” allowing them to “develop unmolested and unobstructed.”[3] Thus, “attempts to check the expression of opinions that we loathe and believe to be fraught with death” can threaten that experiment.[4] Limiting ideas and speech should be done then with great care and precaution, otherwise society’s improvement and evolution are frustrated. Dissent, dissonance and offensive speech then be allowed to survive to the greatest extent possible to ensure the integrity of the experiment, and this is true in the face of an oppressive majority, or in the case of religious extremism, an oppressive minority.

The level of commitment to this “free trade in ideas” can really only be measured by a society’s allowance of unpopular speech; it defines just how unencumbered the right is. After all, it is no great defense of rights to uphold speech that arouses no offense or inspires no opposition. Of course, there must be limits; not all speech can be protected. In this country, 1st Amendment protection does not extend to speech “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[5] For instance, expressions that are so likely to incite “men of common intelligence” to turn to violence, or “fighting words,” are among these unprotected expressions,[6] as are libel and defamation.[7]  These exclusions from protection hinge on, among other things, an objective element – in the case of ‘fighting words,’ that is that the words must be objectively likely to incite violence or danger to the public.

This objective step of the analysis is an important limit on a democratic government’s ability to curtail speech and expression. It requires that if expression is going to be limited, it has to be done in light of a foreseeable reaction to speech that pushes the average person past the point of rationality. Charlie Hebdo’s cartoons and depiction of Muhammad cannot meet such a requirement, whether one is considering the average Muslim[8] or just the average citizen in a western democracy. Such a violent, extremist reaction is just that, extreme, and cannot rightfully be a limit on discourse if the bar for limiting discourse in general is to remain a high one. For one, it allows any group that is willing to react violently or in an extreme manner to effectively control what is acceptable expression and what is not. Aside from this being an absurd result, it very obviously limits the free exchange in ideas democracies strive for.

And although there may be some consequences of such a commitment to free speech, the alternatives are democratically untenable. For example, one proposed answer to the problem of speech that incites religious extremists to violence is to outlaw it by passing religious defamation laws.[9] These laws are unworkable, however, primarily because they would require a judge to eventually take a side in a “theological debate,” since one of the ultimate questions in a defamation claim is the what the truth is.[10]  Anti-blasphemy laws are similar, in that it would require some judicial or legislative rule on what constitutes blasphemy, a religious concept. Moreover, laws outlawing blasphemy are frequently “used to establish theocratic regimes,”[11] and have no place in a democratic society that purports to allow the free expression of a wide variety of ideas.

Those who argue for some modification of freedom of speech in response to violent extremism like the Charlie Hebdo attack are essentially arguing for a “right not to be offended,”[12] and this right should not exist. This is particularly so in the case of religion and politics, where “the tenets of one man may seem the rankest error to his neighbor.”[13] They are matters of opinion, deeply held opinions, but opinions nonetheless, and the only way to ensure that an opinion is not trampled by oppression is to protect it and to freely allow its exchange. This is essentially the same protection that any Muslim or Christian enjoys, and to deny it to those who have opinions that are blasphemous to a group or religion is inconsistent. As one Court so eloquently said: “these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy,” in spite of any “excesses or abuses” that result.[14]

[1]Abrams v. United States, 250 U.S. 616, 630 (1919) (J. Holmes dissenting).

[2]Id.

[3]Cantwell v. State of Connecticut, 310 U.S. 296, 310 (1940)

[4]Abrams v. United States, 250 U.S. 616, 630.

[5]R.A.V. v. City of St. Paul, Minn, 505 U.S. 377, 383 (1992) (citing Chaplinsky v. New Hampshire, 315 U.S. 562, 572 (1942)).

[6]Chaplinsky, 315 U.S. at 573; see also http://www.troll.me/2012/04/09/yosemite-sam/thems-fightin-words/.

[7]R.A.V., 505 U.S. at 382.

[8]Quarter of British Muslims Sympathise with Charlie Hebdo Terrorists, The Telegraph, http://www.telegraph.co.uk/news/religion/11433776/Quarter-of-British-Muslims-sympathise-with-Charlie-Hebdo-terrorists.html (finding 27% “sympathise” with the attackers, while “one in ten say satirical cartoons ‘deserve’ to be attacked).

[9]L. Bennett Graham, Defamation of Religions: The End of Pluralism?, 23 Emory Int’l L. Rev. 69 (2009)

[10]Id. at 75.

[11]Id. at 82.

[12]Id. at 76.

[13]Cantwell v. State of Connecticut, 310 U.S. 296, 310 (1940)

[14]Id.

%d bloggers like this: