Freedom of speech is the keystone of civil liberties. Freedoms of press and assembly are meant to protect it. Freedom from unwarranted searches and seizures leaves us to decide whether our expressed thoughts are private or public. That, too, is why freedom from surveillance is so important since it prevents intimidation. Even habeas corpus principles recognize that speech is an act whose criminalization without due process inhibits that freedom.
So, it is appropriate that the prime measure of whether a people are free turns on the question of speech. While we consequently are sensitive to restraints on free speech, we also acknowledge that it cannot be absolute – as with the famous example of shouting ‘fire’ in a crowded movie theater when there is none. That caveat aside, those who value the Bill of Rights here in the United States, and who seek to consolidate or extend the principle of free speech, campaign on its behalf. The American government routinely chastises other governments that impose controls on communications, as in the case of China or Vietnam or Iran or Russia. It does, hypocritically, look away when realpolitik considerations suggest the practical utility of muting such criticisms as the cases of Saudi Arabia, the GCC, Egypt and others illustrate. Non-governmental groups tend to be less discriminatory albeit with some notable exceptions.
Here at home, there currently is a growing degree of agitation about what are seen as less blatant but insidious trends towards limiting free speech, inter alia, university ‘safe zones’ and obligatory warnings about the inclusion of potentially “discomforting’ material in a syllabus, insensitive characterizations of groups that are hurtful while falling short of incitement to hate, etc. Beyond the university setting where these trends are most pronounced, some see ‘political correctness’ more generally as infringing on free expression. The Charlie Hebdo affair has added to the controversy as to when criticism of ‘offensive’ speech threatens unhealthy self-censorship.
One of the most prominent protagonists in that debate is Timothy Garten Ash – the scholar-journalist at Oxford who gained renown from his first-hand reporting and commentary on the historic events that remade Europe in the 1980s and 1990s. Those experiences steeled his commitment to free speech as the foundation of an open society and made him an arch critic of all that threatens to restrict it in the contemporary world. In his new book, Free Speech: Ten Principles for the Connected World, he makes a forceful, articulate case that the Western democracies have taken steps down the path of “appeasement” in conceding ground to the diverse forces that seek to stigmatize, impede, intimidate or otherwise trespass on the most basic of our freedoms. The broad array of threats ranges from cultural pressures to the Chinese government’s program to suppress digital dissent to campus codes of correct conduct.
An immediate source of Ash’s passion is what he sees as the knuckling under to intimidation in the wake of the bloody assault on the Charlie Hebdo editors and staff. He launched an aggressive, well-publicized campaign at the time aimed at convincing 
newspapers and journals worldwide to print the ‘offending’ cartoons in solidarity with CH and to demonstrate that coercive threats to free speech will be resisted. That largely unsuccessful effort has spurred him to make the case and promote the cause laid out in his latest free speech manifesto. The encounter between the secular West and Islamic fundamentalism, as Ash sees it, is at the heart of one, key part of the larger issue – the one that addresses matters of collective identity (and attendant sensitivities) at the crossroad of religion, culture and politics in the contemporary world.
The ubiquitous Je Suis Charlie placards on display in demonstrations of support testified to the belief that all right-thinking people were lined up in defense of freedom of speech as a cornerstone of liberal democracy. In France, the principles and precepts of their distinctive version of secularism as a political creed and organizing principle for a modern society, laicite, were being reaffirmed with ritual fervor. Charlie Hebdo and liberty became synonymous. Few dissented – publicly anyway. Ash is a particularly passionate advocate of this viewpoint. Now he fears that we in the West are showing ourselves weak of moral stamina and backsliders.
Are a (near) absolute commitment to free speech and liberty really synonymous, though? In this instance, there is a risk that the abstract issue of freedom of expression is conflated with judgments as to the probity of the behavior of Charlie Hebdo’s managers and cartoonists. It is both logical and reasonable to consider the two separately. Let’s sketch an alternative approach that makes that distinction.
First, there is the question of censorship in its legal aspect. Many, like Ash, hold to the stern position that there should be no governmental imposed restriction on what anyone can say or write – however obnoxious it might be in the eyes of some. In the United States, this represents a tight reading of the First Amendment. In most of Western Europe, the principle is qualified by statute or customary practice. Britain’s slander and libel laws are sympathetic to plaintiffs. In Germany among other continental countries, there are explicit prohibitions on the promotion of doctrines and persons associated with Nazism. Hate speech or incitement defined in various terms also is subject to legal penalties in a number of places- including France. The more broadly written the law, the wider the discretion accorded authorities in its implementation. Concern about the possible abuse of discretionary authority leads some to favor the absolutist position.
Second, interpretations of whether either the law or customary practice has been violated are almost never entirely neutral. They are sensitive to historical and political circumstance. Hence, in Europe stricter norms apply to expressions that convey anti-Semitic sentiments than to other groups, religions or topics. In the past, overwhelmingly Catholic countries tended to protect the sensibilities of the Vatican and the Faithful. We would be less than honest if we did not acknowledge that differentiation remains the norm in most of Western Europe – including France and Denmark. This is particularly pronounced in speaking of “opinion” as opposed to formal actions by public authorities.
The Charlie Hebdo episode confirms that proposition. For there is manifestly greater tolerance among the political class and the public generally for cartoons and captions that have Islam and Muslims as their targets than those that might target Judaism and Jews – with Christians oddly somewhere in between. Had Charlie Hebdo published a steady diet of cartoons deeply offensive to Jews, they would not have been accompanied by the cool, laissez-faire attitude that characterized reaction to their “Muslim” caricatures. We should bear in mind, in this regard, that we are not considering a single cartoon as was the case years back with the infamous Danish portrayal of the Prophet Mohammed, but rather several over an extended period of time.*
What practical meaning does this portrayal of the situation have? The conclusion to be drawn need not be that more legal restrictions are in order. They are risky, contentious and liable to abuse. Voluntary criticism by public figures, media, intellectuals etc. does seem permissible and appropriate. Who decides what’s appropriate? Each person and group in accordance with the principle of free expression? Could this generate heavy pressures on somebody or some journal that may have an inhibiting effect? Yes – but that is in the nature of the democratic game. If you dish it out, you have to learn to take it.
What of self-censorship? Ash, in a New York Review of Books article written in the immediate aftermath of the Paris events, warned about the dangers of intimidation. He had in mind mainly the intimidation represented by the threat of violence. The argument pertains as well to other forms of intimidation. His reasoning pointed to the conviction that we consciously should ignore all and any non-legal restrictions so as to affirm the principle of freedom of speech. One could carry this logic a step further to argue that we are honor bound to publish cartoons and other material that crosses the line into the territory of the offensive as felt by Muslims (close to Ash’s stated position) so as to affirm a basic right. In effect, that is what the Je Suis Charlie slogan did.
The alternative would have been to demonstrate under a banner that underscored the principle without associating oneself directly with the Charlie Hebdo cartoons. Apparently, that idea was a non-starter.
Consequently, the two issues were merged. School children in France were obliged, under the pain of chastisement, to stand at attention in Je Suis Charlie ceremonies that implicitly linked adherence to the Republic’s principles of laicite with the offensive cartoons. The refusal of some to do so was then interpreted as a sign of deficient loyalty to France and a lack of solidarity with its community of values. This is quite dubious logic, though – and not very prudent. Let’s try to imagine the Jewish children of recent immigrants being required to do obeisance to a journal that published a long series of vulgar lampoons disparaging Judaism.
What are the practical implications of this appraisal?
(1) In the domestic American sphere, there is a persuasive case for refraining from infringement on established standards of free speech out of a nebulous concern for ‘sensitivity,’ identity insecurities, etc. The demonstrated extremes to which this approach leads – such as ‘warnings’ about discomforting topics and materials in college courses – highlights the dangers of formalizing what is ‘correct’ or ‘incorrect’ in the domain of personal feelings. There is, admittedly, a category of hate speech which is more troubling and which defies facile rule-making. Perhaps, the best way to handle it is through non-criminal institutional action that emphasizes suasion but without concealing condemnation.
(2) At the international level, a prudential standard also should apply. Human rights should not be eclipsed entirely by too convenient justifications in the name of realpolitik. Still, one country’s aggressive policy of stigmatizing others carries serious risks. It is exceedingly difficult to maintain a uniform standard – thereby, there is the danger of devaluing the principle itself through self-serving applications. Moreover, when it is national governments doing the judging and meting out the penalties they expose themselves to charges of hypocrisy when their own record cannot bear close scrutiny. That is what has been occurring with the United States as it pursues its no-holds-barred Global War On Terror while being free and easy in its castigation of others’ abuses.
The stirring of emotions in a thoughtless manner is a hazardous business – whether the stirring is by crude satirists or politicians. Indeed, in the present situation, it might be called “stupid.” Of course, stupidity is not a crime. At the same time, the encouragement of stupidity can be very costly.
This last judgment does leave open the question of who defines stupidity. “No one” and “everyone” seems to be the appropriate answer. No one officially while each of us should be free to make an individual assessment which then could be freely expressed using all normal means of communication. If the cumulative effect creates a certain socio-cultural climate, so be it. We all live in numerable micro climates of that nature that we find more or less salubrious – and those reactions are not uniform. Is there a satisfactory alternative?
