Could we please take a time out from the opening ceremonies of the First-Ever Post-Terrorist-Attack Victim-Blaming Olympics in the wake of the Charlie Hebdo massacre? Good … I think we’ll all feel better … especially if we use the breathing space to take a healthy swig of Gatorade, to recover our sense of rationality, and to recalibrate our moral compasses.
Both latter qualities have been in dismayingly short supply lately – and, most dismayingly of all, among people who would describe themselves with various terms like “progressive,” “liberal,” and “left-wing.” Let’s remember in particular who the victims were and who the perpetrators were: (1) the victims were the 12 people working for Charlie Hebdo -- plus another 4 to 6 bystanders -- who were exercising their rights, under French law, to publish a newspaper ridiculing all religions and even religion-as-such, not to advocate violence against Muslims or anyone else or to attempt to incite sedition or publish national-security / classified information … in a manner entirely within the ambit of French law, they were expressing an opinion, a perspective; (2) the perpetrators were violently inclined, radical, jihadist Muslims from a political and civil culture that refuses to recognize precisely those rights and that was prepared to resist to the point of lethal force the exercise of those rights on the part of others. Yet many professed “progressives,” “leftists,” and “liberals” persist and insist on continuing to confuse the two.
Let’s acknowledge up front that there can be – and should be – limits on freedom of speech. Free speech does not imply anarchic speech. Just within the American experience, there is a whole string of case law on this, extending all the way from Schenck v. United States in 1919 to New York Times v. Sullivan in the 1960s. In every case, and regardless of the final ruling, courts have had to adjudicate issues of circumstance, context, and consequences. Even "common-sense" regulation of speech, e.g., parade / march permits, has been subjected to nuanced scrutiny. But in all such cases, without exception, the consensus has been twofold: (1) the censoring / restriction of the content of speech has been viewed with uniformly severe suspicion; and (2) even when restricting the content of speech has been ruled permissible, the criteria have always been justified on the basis of actual, observable, empirically ascertainable, tangible, “clinically” verifiable damage / harm. That someone was merely offended does not rise to the level of (2). Psychological derangement is one thing. Mere offense is quite another.
Pope Francis is even getting into the act by de facto ruling out satire and lampoon -- which are virtually by definition disrespectful -- as legitimate literary genres. (Has His Holiness never read Jonathan Swift or Mad magazine or watched Stephen Colbert?) But most dismaying of all, in some conspicuous cases, the French themselves seem to be dancing to his tune -- though The Daily Caller has issued a powerful rebuttal. In a way, this is anything but surprising. Some time ago, Sam Harris predicted reactions like that of the Pope in his first book The End of Faith where, early on, he criticized the knee-jerk reflex of deference, without even a superficial gesture of critical examination, whenever any idea, no matter how patently bizarre, is labeled as "religious". (The example, he cited in his second book Letter to a Christian Nation was of praying to one's hair dryer.) Harris also argued in The End of Faith that the people most deferential to out-and-out absurdities are progressives. I agree. It is ominous enough when writers and comedians and artists are pressured to censor themselves. But sometimes advocacy of self-censorship segues into advocacy of governmentally enforced restrictions on humor, satire, and lampoon, as in the case of a recent article in the National Catholic Reporter. Certainly at that point -- actually, I would argue long before -- two questions must be addressed:
o What governmental agency is to be given the power to enforce such restrictions and why should we trust them to exercise that power disinterestedly and impartially?
The power to censor and restrict unreservedly and unqualifiedly is tantamount to the power to control discourse. It is, to speak plainly, a form of thought-control. It would certainly include the power to censor and to control news broadcasts. It would also encompass the power to control who can access what on the internet. There are societies today whose governments have precisely this kind of power. Two such are the People’s Republic of China and North Korea. Of course, I doubt that even the most disaffected “liberal” / “progressive” / “leftist” would intentionally advocate ceding that much authority to the government at any level. And that is precisely the point: when you remove the power to self-censor, when you remove the power to self-regulate, when you remove the power to exercise self-control, when you remove the power to self-discipline from the individual and relegate those kinds of decisions to the government, you will eventually end up with those kinds of decisions being made for you by the government over which you have, at most, only minimal control – really, no practical control at all – and whose decisions you almost certainly will eventually come to see as real, as distinct from the mostly merely imagined dangers of First Amendment liberties. If we allow a mythical constitutional "right" to "not be offended" and if we cede to the government the power to enforce this fictitious "right" based on nothing more substantive than some vaguely subjective sense of "offense", then we will extend to the government an engraved invitation for "scope creep" in the exercise of that power. Do I really need to cite the examples of the French Revolution, the Russian Revolution, and National Socialist Germany to provide the dots to be connected? I am afraid the answer to that question is not only “Yes” but “Hell yes and hurry and right now”.
o What do “liberals” / “progressives” / “leftists” propose to do when the shoe is on the other foot?
Mary Shelley’s Frankenstein is a cautionary tale about an idea that started out at least arguably good, but that gained so much momentum and autonomy it ended up devouring its creator and whoever else happened to be in its path. Advocating governmentally / legally mandated “civility” and “tolerance” – absent empirically demonstrable harm and justified by nothing more than “offensiveness” – likewise promises to turn on and rend those who argue for it. If a minister, preaching a sermon against Republicans who vote against food stamps and in favor of wars of choice, happens to offend a fundamentalist / evangelical conservative member of the religious right, should the minister be disciplined or fined – even jailed – for committing a misdemeanor, maybe even felonious, criminal act? Should a newspaper’s editorial board be subject to similar penalties for “offending” the delicate sensibilities of the Klan? Should Sarah Palin be able to hale Tina Fey into court on a charge of “felonious incivility”? Or Bill Maher by an imam for his remarks about Islam? Or Salman Rushdie? Or Ayaan HIrsi Ali? Or Irshad Manji? Or Tariq Ramadan? Or Reza Aslan? Or Richard Dawkins? Or Sam Harris? Or Daniel Dennett? Or Neil DeGrasse Tyson?
Or your Faithful Skeptic-in-Residence for his habitual excoriation of god-centered religion in general, monotheism in particular?
Perhaps these examples seem far-fetched. Perhaps they are. But that begs another question: who decides? Certainly not “We the People”. Remember, by hypothesis, we have already ceded that power to a government agency. So who decides which such examples are frivolous and which deserve to proceed to trial? Another government agency? Certainly it could not be the same government agency that runs the bureaucratic machinery that facilitates such travesties in the first place. That agency would have to be recused by law. One would need something like the equivalent of a Foreign Intelligence Surveillance Act (FISA) Court to serve as an impartial clearinghouse for such cases. And, of course, we all know what a triumph of pristine constitutionality the FISA Court has proven to be! Secret proceedings. No published transcripts. No adversariality. A box at least as black as the infamous Star Chamber of pre-Cromwell-ian England. So sure! Wot-the-hell! Let’s do it again! Given the same circumstances, we should be able to do the same thing again and have it turn out differently! Right? Right?
Quis custodiet ipsos custodes? Who guards the guardians? Anyone? No one?
Let's catch our breath ... again ... I propose instead two straightforward expedients:
o It is and should remain a criminal act to incite violence against any group or any ethnicity and any religion, especially in a climate in which such violence has already occurred and in which the incitement is directed against a specific community or individual. But -- one more time -- that is because the violence being advocated has a realistic potential for inflicting imminent, objectively observable, empirically verifiable harm on the targeted individual or group. Otherwise and absent such harm, such speech / expression merits legal protection. Charlie Hebdo did not say "Vive la belle France! Kill Muslims!" It ridiculed the Prophet. If Islamophobic whack-jobs in Paris are square-jawed determined to persecute Muslims and to burn their mosques, they will find an excuse, and if necessary manufacture it. They will create their own Reichstag fire. They do not need Charlie Hebdo as a pretext. Anything will suffice. So using the Charlie Hebdo massacre as a justification for press / speech restrictions will also justify any and all restrictions on any and all forms of expression, textual, verbal, commercial and otherwise.
o The sovereign remedy for speech that is offensive is not to restrict speech. The remedy for bad free speech is more free speech, not less. If you don't like what Charlie Hebdo said, don't muzzle Charlie Hebdo. Remove the muzzle from your own mouth. That is what grown-up societies do.
I would write more, but I need to run to the store for more toilet paper. Ah hell with it ... I guess I'll just use the First Amendment.
James R. Cowles