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.
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.
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.” 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.”
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.” The justification for prohibiting speech under the Brandenburg doctrine is the government’s interested in protecting the public from “clear and present danger.” 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.” 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. 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.” 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. 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. 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.’” 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. 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.
 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.
 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.
 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.
 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).
 16B C.J.S. Constitutional Law § 834 (2015).
 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
 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).
 Humanitarian Law Project, 561 U.S. at 30.
 Holmes, supra note 5, at 472.
 Id. at 473.