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.

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