Jonathan Turley
Free speech is
dying in the Western world. While most people still enjoy considerable
freedom of expression, this right, once a near-absolute, has become less
defined and less dependable for those espousing controversial social,
political or religious views. The decline of free speech has come not
from any single blow but rather from thousands of paper cuts of
well-intentioned exceptions designed to maintain social harmony.
In the face of
the violence that frequently results from anti-religious expression,
some world leaders seem to be losing their patience with free speech.
After a video called “Innocence of Muslims” appeared on YouTube and
sparked violent protests in several Muslim nations last
month, U.N. Secretary General Ban Ki-moon warned that “when some people
use this freedom of expression to provoke or humiliate some others’
values and beliefs, then this cannot be protected.”
It appears
that the one thing modern society can no longer tolerate is intolerance.
As Australian Prime Minister Julia Gillard put it in her recent speech
before the United Nations, “Our tolerance must never extend to
tolerating religious hatred.”
A willingness
to confine free speech in the name of social pluralism can be seen at
various levels of authority and government. In February, for instance,
Pennsylvania Judge Mark Martin heard a case in which a Muslim man was
charged with attacking an atheist marching in a Halloween parade as a
“zombie Muhammed.” Martin castigated not the defendant but the victim,
Ernie Perce, lecturing him that “our forefathers intended to use the
First Amendment so we can speak with our mind, not to piss off other
people and cultures — which is what you did.”
Of course, free speech is often precisely about pissing off other people — challenging social taboos or political values.
This was evident in recent days when courts in Washington and New York
ruled that transit authorities could not prevent or delay the posting of
a controversial ad that says: “In any war between the civilized man and
the savage, support the civilized man. Support Israel. Defeat jihad.”
When U.S. District Judge Rosemary Collyer said the government could not bar the ad simply
because it could upset some Metro riders, the ruling prompted calls for
new limits on such speech. And in New York, the Metropolitan
Transportation Authority responded by unanimously passing a new
regulation banning any message that it considers likely to “incite”
others or cause some “other immediate breach of the peace.”
Such efforts
focus not on the right to speak but on the possible reaction to speech —
a fundamental change in the treatment of free speech in the West. The
much-misconstrued statement of Justice Oliver Wendell Holmes that free
speech does not give you the right to shout fire in a crowded theater is
now being used to curtail speech that might provoke a violence-prone
minority. Our entire society is being treated as a crowded theater, and
talking about whole subjects is now akin to shouting “fire!”
The new
restrictions are forcing people to meet the demands of the lowest common
denominator of accepted speech, usually using one of four rationales.
Speech is blasphemous
This
is the oldest threat to free speech, but it has experienced something
of a comeback in the 21st century. After protests erupted throughout the
Muslim world in 2005 over Danish cartoons depicting the prophet
Muhammad, Western countries publicly professed fealty to free speech,
yet quietly cracked down on anti-religious expression. Religious critics
in France, Britain, Italy and other countries have found themselves
under criminal investigation as threats to public safety. In France,
actress and animal rights activist Brigitte Bardot has been fined
several times for comments about how Muslims are undermining French
culture. And just last month, a Greek atheist was arrested for insulting
a famous monk by making his name sound like that of a pasta dish.
Some Western
countries have classic blasphemy laws — such as Ireland, which in 2009
criminalized the “publication or utterance of blasphemous matter” deemed
“grossly abusive or insulting in relation to matters held sacred by any
religion.” The Russian Duma recently proposed a law against “insulting
religious beliefs.” Other countries allow the arrest of people who
threaten strife by criticizing religions or religious leaders. In
Britain, for instance, a 15-year-old girl was arrested two years agofor burning a Koran.
Western
governments seem to be sending the message that free speech rights will
not protect you — as shown clearly last month by the images of Nakoula
Basseley Nakoula, the YouTube filmmaker,
being carted away in California on suspicion of probation violations.
Dutch politician Geert Wilders went through years of litigation before
he was acquitted last year on charges of insulting Islam by voicing
anti-Islamic views. In the Netherlandsand Italy, cartoonists and
comedians have been charged with insulting religion through caricatures
or jokes.
Even the Obama administration supported the passage of
a resolution in the U.N. Human Rights Council to create an
international standard restricting some anti-religious speech (its full
name: “Combating Intolerance, Negative Stereotyping and Stigmatization
of, and Discrimination, Incitement to Violence and Violence Against,
Persons Based on Religion or Belief”). Egypt’s U.N. ambassador heralded
the resolution as exposing the “true nature” of free speech and
recognizing that “freedom of expression has been sometimes misused” to
insult religion.
At a Washington conference last yearto implement the resolution, Secretary of State Hillary Rodham Clinton declared that
it would protect both “the right to practice one’s religion freely and
the right to express one’s opinion without fear.” But it isn’t clear how
speech can be protected if the yardstick is how people react to speech —
particularly in countries where people riot over a single cartoon.
Clinton suggested that free speech resulting in “sectarian clashes” or
“the destruction or the defacement or the vandalization of religious
sites” was not, as she put it, “fair game.”
Given this initiative, President Obama’s U.N. address last
month declaring America’s support for free speech, while laudable,
seemed confused — even at odds with his administration’s efforts.
Speech is hateful
In
the United States, hate speech is presumably protected under the First
Amendment. However, hate-crime laws often redefine hateful expression as
a criminal act. Thus, in 2003, the Supreme Court addressed the
conviction of a Virginia Ku Klux Klan member who burned a cross on
private land. The court allowed for criminal penalties so long as the
government could show that the act was “intended to intimidate” others.
It was a distinction without meaning, since the state can simply cite
the intimidating history of that symbol.
Other Western
nations routinely bar forms of speech considered hateful. Britain
prohibits any “abusive or insulting words” meant “to stir up racial
hatred.” Canada outlaws “any writing, sign or visible representation”
that “incites hatred against any identifiable group.” These laws ban
speech based not only on its content but on the reaction of others.
Speakers are often called to answer for their divisive or insulting
speech before bodies like the Canadian Human Rights Tribunal.
This month, a
Canadian court ruled that Marc Lemire, the webmaster of a far-right
political site, could be punished for allowing third parties to leave
insulting comments about homosexuals and blacks on the site. Echoing the
logic behind blasphemy laws, Federal Court Justice Richard Mosley ruled
that “the minimal harm caused . . . to freedom of expression is far
outweighed by the benefit it provides to vulnerable groups and to the
promotion of equality.”
Speech is discriminatory
Perhaps
the most rapidly expanding limitation on speech is found in
anti-discrimination laws. Many Western countries have extended such laws
to public statements deemed insulting or derogatory to any group, race
or gender.
For example, in a closely watched case last year, a French court found fashion designer John Gallianoguilty of making discriminatory comments in
a Paris bar, where he got into a cursing match with a couple using
sexist and anti-Semitic terms. Judge Anne-Marie Sauteraud read a list of
the bad words Galliano had used, adding that she found (rather
implausibly) he had said “dirty whore” at least 1,000 times. Though he
faced up to six months in jail, he was fined.
In Canada,
comedian Guy Earle was charged with violating the human rights of a
lesbian couple after he got into a trash-talking session with a group of
women during an open-mike night at a nightclub. Lorna Pardysaid she
suffered post-traumatic stress because of Earle’s profane language and
derogatory terms for lesbians. The British Columbia Human Rights
Tribunal ruled last year that since this was a matter of discrimination,
free speech was not a defense, and awarded about $23,000 to the couple.
Ironically,
while some religious organizations are pushing blasphemy laws, religious
individuals are increasingly targeted under anti-discrimination laws
for their criticism of homosexuals and other groups. In 2008, a minister
in Canada was not only forced to pay fines for uttering anti-gay
sentiments but was also enjoined from expressing such views in the
future.
Speech is deceitful
In
the United States, where speech is given the most protection among
Western countries, there has been a recent effort to carve out a
potentially large category to which the First Amendment would not apply.
While we have always prosecuted people who lie to achieve financial or
other benefits, some argue that the government can outlaw any lie,
regardless of whether the liar secured any economic gain.
One such law was the Stolen Valor Act, signed by President George W. Bush in 2006, which made it a crime for people to lie about receiving military honors. The Supreme Court struck it down this year,
but at least two liberal justices, Stephen Breyer and Elena Kagan,
proposed that such laws should have less of a burden to be upheld as
constitutional. The House responded with new legislation that would
criminalize lies told with the intent to obtain any undefined “tangible
benefit.”
The dangers
are obvious. Government officials have long labeled whistleblowers,
reporters and critics as “liars” who distort their actions or words. If
the government can define what is a lie, it can define what is the
truth.
For example,
in Februarythe French Supreme Court declared unconstitutional a law that
made it a crime to deny the 1915 Armenian genocide by Turkey — a
characterization that Turkey steadfastly rejects. Despite the ruling,
various French leaders pledged to pass new measures punishing those who
deny the Armenians’ historical claims.
The
impact of government limits on speech has been magnified by even
greater forms of private censorship. For example, most news
organizations have stopped showing images of Muhammad, though they seem
to have no misgivings about caricatures of other religious figures. The
most extreme such example was supplied by Yale University Press, which
in 2009 published a book about the Danish cartoons titled “The Cartoons That Shook the World” — but cut all of the cartoons so as not to insult anyone.
The very right
that laid the foundation for Western civilization is increasingly
viewed as a nuisance, if not a threat. Whether speech is deemed
imflammatory or hateful or discriminatory or simply false, society is
denying speech rights in the name of tolerance, enforcing mutual respect
through categorical censorship.
As in a
troubled marriage, the West seems to be falling out of love with free
speech. Unable to divorce ourselves from this defining right, we take
refuge instead in an awkward and forced silence.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
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